Monday, October 17, 2011

Samsung won't get preliminary injunction against iPhone 4S in Australia, situation less clear in Japan

A couple of hours ago, Samsung claimed to be "counter-attacking Apple again" with preliminary injunction requests in Australia and Japan, targeting the iPhone 4S. The Syndey Morning Herald just reported on the kinds of patents Samsung is asserting. I also recommend's (even more detailed) article.

Based on the assertions Australian media report, I believe Samsung's attack on the iPhone 4S in Australia is doomed to fail because it relates to three patents declared essential to the 3G telecommunications standard. On Friday, a Dutch judge already made it clear that Samsung can't seek an injunction based on such patents, and I'd be extremely surprised if an Australian judge took a different perspective on FRAND (fair, reasonable and non-discriminatory) licensing commitments. (Also on Friday, I announced a study on worldwide assertions of FRAND patents, and any input pertinent to that research project will be appreciated.)

Also, on Thursday a court in Southern California ordered Qualcomm to provide Apple with documents that may prove that Qualcomm is licensed to those Samsung patents, in which case Apple, which uses a Qualcomm baseband chip in the iPhone 4S, would be safe due to the concept of patent exhaustion (you get paid once but can't double-dip).

The odds are very long against Samsung overcoming all of Apple's defenses.

The three patents on which Samsung bases its Australian injunction request are some of the ones they previously used in another complaint in Australia. I recently listed 13 FRAND-encumbered patents asserted by Samsung against Apple around the globe, and the three patents asserted in the new attack on the iPhone 4S are the Australian equivalents of

The situation is less clear in Japan, where Samsung is using one standards-related patent but also "three user interface patents" according to the statement quoted by the SMH. Those user interface patents are presumably not subject to FRAND licensing commitments, in which case Samsung would be allowed to seek injunctions based on them and it would all depend on whether those patents will be upheld (since Apple will be sure to contest their validity) and actually infringed.

A Korean newspaper, the Chosun Ilbo, has published a description of the three user interface patents (in Korean). Twitter user Bintz (@dynafeel) translated the titles of those patents. Those patents appear to relate to the display of a in-flight mode icon, the utilization of homescreen space, and an app store menu structure.

Concerning the in-flight mode, Twitter user Daniel Lee (@dong1225) pointed me to an article on Samsung's introduction of that feature in 2002 but also mentions that someone says Qualcomm created the related technology and Samsung only claims rights in connection with the display of such an icon.

Back to the Australian part of this worldwide battle: Samsung is under massive pressure down under. This weekend I took a closer look at the latest ruling by the Federal Court of Australia. In that document I found unequivocal statements that Apple refuses to license the entirety of its patent patent portfolio (Apple told Samsung it owns a "thicket of patents" and would license only "lower level ones"). I also took a closer look at the injunction against the Galaxy Tab 10.1 and explained why that ruling could be extended not only to other Samsung products but also to other vendors, especially Motorola Mobility and HTC.

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