Original URL: http://www.theregister.co.uk/2011/09/23/android_patent_war/

Samsung-Apple patent lawsuit tally hits 21, and counting

WHOLE WORLD to end up locked in the walled orchard?

By Faultline

Posted in Operating Systems, 23rd September 2011 09:38 GMT

Analysis The legal activity around Android continues to mount, with the chief antagonists - Samsung and Apple - increasing their lawsuit tally to 21. And another may follow soon, as Samsung threatens to sue to block sales of the iPhone 5 as soon as it launches, at least in its home country of Korea.

Let's face it, this is relevant to all of us in pay TV and video. If Apple gains the upper hand we all have to operate in a very closed world of Apple's making.

According to sources who spoke to Korea Times, Samsung will file suit against Apple for alleged violation of nine patents related to wireless communications as soon as possible after the next Apple handset is unveiled. As Apple is pursuing for key products such as the Galaxy Tab 10.1, the Korean vendor will seek a ban on imports and sales of the iPhone 5, as well as flexing its intellectual property muscles more strongly than it has to date.

"For as long as Apple does not drop mobile telecommunications functions, it would be impossible for it to sell its i-branded products without using our patents," a Samsung source told the newspaper. "We will stick to a strong stance against Apple during the lingering legal fights."

Apple, which has scored most of the points in court recently in its feud with Samsung, has already filed suit in Korea, a brave move against the country's favorite son.

Samsung is also seeking to overturn the German injunction against its Galaxy Tab 10.1, and has filed yet another suit against Apple, in Australia, which brings the number of actions between the two firms to 21. Samsung's countersuit at the Federal Court of Australia alleges that the iPhone and iPad infringe seven patents related to wireless communications standards.

Australia is an important theatre not because of its market volumes, but because it may be the first market in which an Apple-Samsung case comes to a definite conclusion, potentially influencing judges in the key battlegrounds of Europe and the US. Australia was the first country where Samsung's Galaxy Tab 10.1 suffered a temporary injunction, with the vendor barred from selling or marketing its product until a final judgment in Apple's suits. Apple has also won an injunction in Germany against the new Galaxy Tab 7.7.

"Samsung has a proud history of innovation in the mobile industry," said the company in a statement. "It has invested continuously in R&D, design and technology to produce our innovative and cutting edge mobile devices."

Samsung is one of the largest IPR holders in the world. On the 4G stage, it has increased its share of patents deemed essential to wireless standards because of its significant holdings in WiMAX and LTE. Apple will have to bear that in mind as it plans an LTE iPhone.

Its Australian filing came just days after the twentieth suit – this one from Apple – was lodged in the UK. The exact patents at issue have yet to be disclosed, although it appears this is a countersuit against an earlier Samsung complaint. Also in the UK, Apple recently won against Samsung in case handled by the rather less weighty Advertising Standards Authority (ASA). Samsung had complained that Apple was calling the iPhone 4 the thinnest smartphone on the market, but maintained that the Galaxy S II was slimmer (at 8.71mm versus 9.3mm).

However, the ASA denied the claim because the S II has a thicker portion around the camera.

Oracle takes Google to court over Java

Across the pond, Oracle is pursuing claims of Java infringement against Android which, if successful, could have significant knock-on effects for the whole ecosystem. Last week, Google suffered a setback when US District Judge William Alsup denied its motion for summary judgement on Oracle's copyright infringement claims. Oracle cites 12 code files and 37 specifications relating to software APIs, and says Android is based on an "unauthorized and incompatible Java implementation".

Google had no right to use the files, argues Oracle (which acquired Java with Sun Microsystems), and it has made its version of Java incompatible with the standard because it implements only a subset of APIs. The judge said in his summary of the case so far: "This so-called fragmentation undermines the 'write once, run anywhere' concept underlying the Java system and supposedly damages Oracle by decreasing Java's appeal to software developers."

Google retorts that the 12 code files were copied 'de minimis' – any changes are hardly noticeable. It wants the court to view this copying in relation to the entire Java platform, which Oracle registered as a single work, rather than examining the 12 files individually. It wanted a summary judgment on that basis but Alsup said this would only be possible if there was "no genuine dispute as to any material fact", and ruled against the motion. The only instant ruling he would offer was on the actual names of the 12 files, which Oracle claimed were protected by copyright. Alsup decided they were not.

Had Google succeeded in getting the Java API copyright infringement allegations dismissed, it could have focused the upcoming trial entirely on patents, which would have limited the potential damage.

A copyright case typically has greater legal and financial implications, and can also carry a jury trial, with consequent lack of predictability.

In June, Oracle said it would seek about $2.6 billion in damages from Google should it win the case though Google responded that the assessment of damages was "based on fundamental legal errors and improperly inflates their estimates".

Alsup wrote in his judgment: "The question of damages is one of the most complicated and hotly contested issues in this action. On the present record, a reasonable fact finder could disagree with Google's rosy depiction of Android's impact on the Java market."

The next phase in the drama came on Monday when Oracle's and Google's CEOs, Larry Ellison and Larry Page, appeared in San Jose, California for court-ordered settlement talks. No details were given of the content of the session, but the two men were to return on Wednesday for further negotiations.

Page told reporters as he arrived: "We're looking forward to a productive day", while Ellison said they would "do the best we can". The talks ended after 10 hours and Magistrate Judge Paul Grewal ordered them to return two days later. Assuming no settlement is reached, a trial will start on 31 October.

While it waits for an outcome, Google has stuffed its own patent coffers further, with a second purchase from IBM. Following the purchase of about 1,000 IBM assets in July, according to documents on the US Patent and Trademark Office web site, 1,023 patents were transferred from IBM to Google on 17 August, covering a wide range of areas from "communications on a network" to "audio communications", from "web-based querying" to "fabrication and architecture of memory and microprocessing chips". IBM is the largest patent holder in the world.

And another high-profile Android attack, by Apple on HTC, will come to a head in early December when the US ITC (International Trade Commission) is to make a final decision on whether HTC infringed two Apple patents. A preliminary judgment on 15 July went against HTC, whose various fights with Apple are seen as tests for the broader Android community, as some of the patents involved are used generically in the OS. Google recently sold its Taiwanese partner some key patents of its own to help build its defense. In this particular case, though, it faces a critical ruling when the full six-member ITC reviews the original July judgment. If the Commission agrees with that, HTC could face a ban on its Android smartphones in the US.

In the July ruling, it was deemed that the HTC products infringed two Apple patents, while no violation occurred for two others. The ITC will review infringement and validity on all four patents and whether a correct interpretation was made on terms within three of the patents. The two patents cover transmission of multiple types of data; and a system to identify phone numbers in an email in a way that lets the user dial or store that number.

Apple has another ITC complaint pending against HTC, and HTC has retaliated with three infringement cases against Apple. The ITC is scheduled to complete the investigation by 6 December. HTC argued in a 25 August filing that, even if it did infringe the patents, the ITC should not ban its products in the US as this would be contrary to the public interest, partly because HTC handsets have special features for the hearing impaired and enhanced 911 services.

About 36 per cent of Android smartphones in use in the US were made by HTC, according to the filing.

"The exclusion of HTC accused devices from the US market would not only eliminate the most popular brand of smartphones using Android, the fastest growing mobile operating system, but would also impact the public health, safety, and welfare concerns of individual US consumers," HTC said. ®

Copyright © 2011, Faultline

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