Tuesday, August 2, 2011

Samsung's official comment on the Australian Galaxy Tab 10.1 situation is extremely weak

[Update on August 3, 2011] Gizmodo Australia has meanwhile published a statement according to which Samsung indefinitely postponed the Australian Galaxy Tab 10.1 media launch event. That fact serves to further validate the position I took below on the orginal statement. [/Update on August 3, 2011]

AusDroid.net has published Samsung's official statement on the situation surrounding the Galaxy Tab 10.1 in Australia (on which I reported yesterday).

[Update] A more detailed version (but with the same substance and shortcomings) was published by Gizmodo. [/Update]

While some have interpreted that at first sight as a flat denial of the problems Samsung faces down under, the statement is actually very weak. It is, in fact, an admission of pretty serious problems because it denies only strawmen and navigates around the real issues.

Here are the most important shortcomings of the statement:

  • The statement fails to commit to a particular release date -- and most importantly, the originally envisioned release date -- for the Galaxy Tab 10.1 in Australia. It merely says that the Australian version of the product "will be released in the near future". What does "in the near future" mean? Nothing. If they released it next year, that would also be "in the near future".

  • By failing to commit to the originally planned release date, the statement does not deny that Apple's legal action may cause a delay as compared to that date.

  • The claim that the product will be released in Australia (in the near future) is just an expression of Samsung's intent. It's not the same as saying that the court gave Samsung a go-ahead or that Apple won't be able to delay it or even to block it entirely.

  • The statement does not at all deny -- and thereby, in my view, effectively admits -- that Samsung committed to provide three samples of the Australian version of the Galaxy Tab 10.1 to Apple at least seven days prior a possible release. That obligation is a major win for Apple and means Apple has enough time to request and (if successful) obtain a preliminary injunction against the product before it ships. We can all set our watches by Apple: the moment Samsung sends them those pre-release samples, Apple will immediately shoot for a preliminary injunction.

  • The statement does not explain why the Australian version of the Galaxy Tab 10.1 would not infringe the asserted patents. The Australian version of the product may have a slightly different design in some superficial regards, but there's absolutely no reasonable basis for any assumption that the Australian version would not come with essentially the same multi-touch user interface. The Sydney Morning Herald listed Apple's patents-in-suit at the end of this article. Theoretically, Samsung could indeed build an Australian Galaxy Tab 10.1 that would not infringe those patents, but in order to work around those patents, it would at least suffer serious degradations of the user experience, potentially even the removal of all multi-touch functionality. That kind of product could of course be built, but who would want to buy it?

  • A potentially misleading sentence -- the third paragraph of Samsung's statement -- notes that "the undertaking" (meaning what Samsung committed to during the court hearing) "does not affect any other Samsung smartphone or tablet". But it's quite possible and in my view, highly likely, that Apple's complaint actually targets a variety of Android-based Samsung products, even though it's possible that only the Galaxy Tab 10.1 was at issue yesterday because of a motion for a preliminary injunction. In the United States, Apple also limited its preliminary injunction motion to a subset of the asserted intellectual property rights and a subset of the accused products (subset as compared to the main complaint).

The way to read such statements is always to compare the statement to the issues that need to be addressed, or a previous statement or media report. What's not addressed is usually considered admitted -- just like in court proceedings in various jurisdictions. And if something else than the actual allegation is denied, it's irrelevant.

Here are some strawmen that Samsung's statement tears down:

  • Samsung points out that it "had no plans of selling in Australia" the particular "variant" of the Galaxy Tab 10.1 that Apple showed to the court. Based on yesterday's reports, that "variant" is the U.S. version. Why would Apple have shown it? Because the Australian version had not been released yet. But Apple obviously figured that there wouldn't be any major differences between those two products with respect to the multi-touch user interface technology. It appears that yesterday's agreement gives Samsung a theoretical chance to present a non-infringing Australian product, but for the reasons I explained further above, that doesn't mean much in practical terms as far as Apple's asserted patents are concerned.

  • Samsung states that "[n]o injunction was issued by the court". That doesn't mean that Apple's complaint was denied with prejudice. It just means that the court will look at this again as soon as Samsung presents the Australian version of its product, and Samsung does not explain why that one would be less likely to be found infringing than the U.S. version. Until Samsung provides that explanation, the most likely explanation is that this just delays the point in time at which the decision gets taken, but the basis for that decision won't be much different. The court may have been uncomfortable about taking a decision at this stage no matter how much common sense suggests that Samsung's patent infringement problems will be the same with the Australian version of the product.

I said yesterday that it appeared quite weak that Samsung didn't defend the U.S. version of its product but instead agreed not to sell it in Australia. That part was just confirmed by Samsung: they committed not to sell it. I fully believe them that they never planned to sell it there anyway, but if they thought the product faces no (potential) infringement issues, they wouldn't have entered into such an agreement. If you don't plan to travel to the North Pole next month and I ask you to guarantee to me in writing that you won't do it, would you sign it? I'm sure you'd refuse to do so, arguing that I have no right to demand such a commitment.

I invite Samsung to explain why the Australian version of the product will be more defensible than the U.S. version as far as Apple's asserted, mostly multi-touch-related, patents are concerned. Absent a plausible explanation, Samsung's comment on the Australian situation only serves as additional confirmation that Apple is making headway (which doesn't necessarily mean that Apple will get an injunction, but Samsung doesn't exude confidence as far as the asserted patents are concerned).

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