Today a court in Milan, Italy, refused to take an immediate decision on Samsung's request for a preliminary injunction against the iPhone 4S. Instead, Samsung has until November 15 to file a new pleading, and Apple will get to reply to that one until December 6. On December 16, the court will hold the next hearing. In the meantime, Apple will launch the new iPhone in Italy (at the end of this week).
Last week, a Paris-based first-instance court that hears all French patent cases also decided to schedule another hearing. That one will take place on November 15. The primary (if not exclusive) purpose of the delay in France appears to be to give Apple more time to obtain material from Qualcomm regarding that chip maker's contractual relationship with Samsung, which may or may not provide Apple with a basis for a patent exhaustion defense.
Even though I can't claim to know the procedures for preliminary injunctions in those jurisdictions, the fact that the courts in France and Italy take more time and let Apple launch the iPhone 4S in the meantime doesn't bode too well for Samsung. It's still possible that Samsung could win in one or both of these countries after a second hearing, but if judges feel strongly that there's a solid case for a preliminary injunction, then they grant a preliminary injunction right away or at least pressure the defendant into a deal under which it will hold off on launching the accused product until the court has decided (for example, the Federal Court of Australia convinced Samsung twice that it was better to postpone the launch of the Galaxy Tab 10.1, and ultimately ordered a preliminary injunction).
But to the extent that Apple's ability to prevent such injunctions depends on its exhaustion defense, it still has to deal with a significant degree of uncertainty between now and the second hearings in France and Italy. I'm sure many observers of this dispute feel that this is fair game in light of all of the uncertainty (and actual harm) that Apple's legal actions create for Samsung all the time. And I guess Apple knows pretty well that what goes around comes around.
The exhaustion defense may be very solid. It depends on what's in the agreement between Samsung and Qualcomm. But Qualcomm doesn't have a track record of favoring patent exhaustion. It certainly values Apple as a customer, but Qualcomm is very much in favor of "double dipping" by patent holders.
Compared to the courts in France and Italy, a Dutch court based in the city of The Hague recently made a decision that worked out much better not only for Apple but also for the tech industry at large: it decided to cut things short and abort the process on the grounds that Samsung wasn't deemed entitled to an injunction based on FRAND-pledged patents declared essential to an industry standard at this stage (only if Samsung had made Apple a FRAND offer, which wasn't the case in the Dutch court's view, and if Apple had then refused to pay a FRAND price). The Dutch case wasn't about the iPhone 4S, but other than that, it presented pretty much the same FRAND issues as the French and Italian cases. The Dutch judge identified Apple's FRAND defense as a potentially decisive (and ultimately successful) defense and therefore ruled on that issue first, eliminating the need to look more closely at the validity of the asserted patents, the infringement claims and the Qualcomm contract. That way, the Dutch court saved judicial resources, accelerated the decision-making process and provided the technology industry at large with what it needs: legal certainty concerning FRAND licensing commitments.
I don't know whether the judges in France and Italy just don't understand FRAND well enough or want to have, as a matter of principle, all the evidence on the table before they decide. If their final decisions also point out clear limitations of what FRAND patent holders may demand, those rulings could still be equally useful to the industry as the Dutch one.
If you'd like to be updated on the smartphone patent disputes and other intellectual property matters I cover, please subscribe to my RSS feed (in the right-hand column) and/or follow me on Twitter @FOSSpatents and Google+.
Share with other professionals via LinkedIn: