Samsung's strategy is to fling as many patent writs, in as many jurisdictions as possible, in an attempt to fight Apple to a standstill over its patent claims: that Samsung has been nicking all its technology. But two big cracks have just appeared. By Ian Scales.
The first crack is that it's now plain that Apple has a clear built-in advantage.
Consider: its claims are built mostly on software patents, such as the infamous 'swipe unlock' (see - Patently absurd: Apple swipes the standard unlock gesture on touchscreens). Apple's IP all centres on the user interface look and feel stuff that the company has brought to the mobile party and that is - rightly or wrongly - nicely tied down by the Cupertino Kid using US patent law which has been sloppily extended (it's being claimed) to cover software. In other words, in the US it's apparently easier to describe what a piece of software does and patent it. In Europe and elsewhere there is more reliance on copyrighting the actual code.
Bottom line: with copyright if you're playing catch-up in a market you might be able to 'borrow' the general idea as long as you don't copy the detail of the software code itself. (see interesting comments from a US patent lawyer, working for Apple on TelecomTV).
So how does Samsung, in the main, fight back? By using it's radio IP of course. But there's a big problem. Samsung, Nokia, Motorola Qualcomm and the rest have already battled over that in earlier times, and as a result the key technology is available within 3GPP (the 3G Partnership Project) under a FRAND (Fair, Reasonable and Non-Discriminatory) licensing arrangements.
In other words, much of the radio technology patent issues have already been worked through and it's proving difficult for Samsung to fight back using it.
Now that Samsung is suing Apple in five EU countries alleging radio patent infringements, it's found itself on the back foot again because the EU is now going to look into whether Samsung's actions are actually an abuse of the FRAND principles. Curses. Over-reaching and foiled again?
Samsung points out that the EU is only at the early investigation stage, but it doesn't look good.
The second crack is in Samsung's own territory, Korea, although in this case Samsung appears to have sensed that it might be about to over-reach and has pulled back.
When it comes to banning the iPhone in Korea, you might think that a Korean court would smile fondly upon its own and sign the necessary paper-work. Samsung probably thought so too. But according to Korea's English language 'The Chosunilbo
' the company has decided not to try for an injunction in Korea against the iPhone 4, having filed for bans in France, Italy and Australia.
Why? Because if it won it would be a public relations disaster at home where demand by users for the iPhone 4S is high. According to Chosunilbo,
a Samsung spokesperson said: "We concluded that we should engage in legal battles with Apple only in the global market, but not in order to gain more market share in Korea."
And, Samsung might have added, if the home court actually rejected the Samsung motion it would hardly do its case much good in the rest of the world either. Heads Apple wins, tails Samsung loses.
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