Bloomberg was first to report today on Apple's ITC complaint against Samsung. It was filed yesterday, and it wasn't clear to which products it related as the ITC only stated "Electronic Digital Media Devices" as the accused category of products. The complaint just entered the public record and I can now describe and analyze its content -- and before I go into detail, let me show you my updated battlemap:AppleVsSamsung_11.07.05
Assertions: five utility patents and two design patents against six smartphones and two tablets
The gist of the new ITC complaint is that Apple asserts five utility patents (technical patents) and two design patents against a host of Android-based products:
six Samsung smartphones
Galaxy S 4G
and two tablets
the original Galaxy Tab
the new Galaxy Tab 10.1
One of the five utility (= technical) patents Apple asserts now was asserted in Apple's original lawsuit (in Northern California) but withdrawn from that one as Apple amended it. It resurfaced now. The other four technical patents and the two design patents were not previously asserted against Samsung. These are the asserted patents:
Utility (technical) patents
U.S. Patent No. 7,479,949 on a "touch screen device, method, and graphical user interface for determining commands by applying heuristics"; Apple uses this patent all the time against Android, and Steve Jobs is the first name on a long list of inventors who contributed to it
U.S. Patent No. RE41,922 on a "method and apparatus for providing translucent images on a computer display"
U.S. Patent No. 7,863,533 on a "cantilevered push button having multiple contacts and fulcrums" (that's the one they temporarily asserted against Samsung in California)
U.S. Patent No, 7,789,697 on "plug detection mechanisms"
U.S. Patent N. 7,912,501 on an "audio I/O headset plug and plug detection circuitry"
The Galaxy Tab and Galaxy Tab 10.1 allegedly infringe all five of those utility patents. The Fascinate smartphone is accused of infringing three of them (the first two and the fifth one); the Captivate smartphone, the first and the third; and the Infuse 4G smartphone, the first two.
U.S. Design Patent D558,757 on a certain "ornamental design for an electronic device" found on the iPhone 3GS; asserted against the Fascinate and Transform smartphones
U.S. Design Patent No. D618,678 on a certain "ornamental design of an electronic device" found on the iPhone 4; asserted against the Fascinate, Galaxy S 4G, Transform and Infuse 4G smartphones
Apple's ITC complaint is a logical move on a real-time chessboard
After Samsung filed its ITC complaint against Apple about a week ago, I already predicted that Apple would also do so. In such a dispute time is of the essence: you don't want your adversary to obtain (or to be reasonably likely to obtain) an injunction -- or an injunction-like ITC import ban -- against your products before you have the same leverage.
Apple's motion for a preliminary injunction will have to be adjudicated well ahead of an ITC decision, which usually takes 16-18 months. But Apple can't rely on that particular strike alone. Should the motion for a preliminary injunction be denied, the ITC is usually a faster track to a decision than the federal courts.
Apple also filed a motion to speed up the Calfornia lawsuit in general -- not just the part concerning the preliminary injunction motion. Samsung, quite expectedly, opposes that kind of acceleration.
By the way, don't be surprised if later today or tomorrow there's news of a companion federal lawsuit filed by Apple, asserting the same patents as in this ITC complaint. Most of the time, companies lodging a complaint with the ITC also file a federal lawsuit. Those federal lawsuits are typically stayed pending the ITC investigation. One of the reasons for filing federal lawsuits as well is that the ITC can order import bans but not award damages.
Recent developments in this dispute
This ITC complaint follows a flurry of filings recently made by the two litigants against each other in various jurisdictions. The most recent development is that Apple's proposal for an August 5 hearing on its preliminary injunction motion may have been a bit too ambitious. The judge believes that a little more time may be needed to conduct some related discovery.
Previously, there was quite some confusion in the media about Samsung having purportedly "dropped" its countersuit in California. In a formal sense, Samsung did drop it, but only to convert it immediately into counterclaims, which has certain procedural advantages for the court and for Samsung. In that process, Samsung even increased the number of U.S. patents asserted against Apple by two (now 12 patents in California and 5 at the ITC and -- the same 5 -- in Delaware). So what Samsung did in California was just the opposite of a retreat.
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