Thursday, October 13, 2011

Steve Jobs patent enables Apple to shut down any new Android product in Australia

In a posthumous triumph for the late Steve Jobs, one of his more than 300 patents -- a patent on touchscreen heuristics -- just helped Apple score a major legal win in Australia that lends momentum to its patent enforcement efforts against Samsung at a critical juncture. The Federal Court of Australia ordered an interim injunction against Samsung's Galaxy Tab 10.1 over strong suspicions of the infringement of two technical invention patents. For local coverage, I recommend the Sydney Morning Herald's and itnews.com.au's reports.

The interim injunction will be in force until the court resolves the matter in a full-blown main proceeding, at which point in time the product will likely be obsolete in this rapidly-evolving market. The patents at issue are not tablet-specific. They are very broad and can hardly be worked around, unlike various other intellectual property rights that Apple asserted and Samsung recently engineered around.

In order to get some leverage, Samsung is trying to win preliminary injunctions against Apple and tries to have the new iPhone 4S banned in France and Italy (and subsequently in other places). However, Samsung largely relies on standards-essential, FRAND-pledged patents against Apple, and those will result in injunctions only under exceptional circumstances.

Implications way beyond Galaxy Tab 10.1: Apple can now shut down any new Android products in Australia

After today's decision, I believe no company in the industry be able to launch any new Android-based touchscreen product in Australia anytime soon without incurring a high risk of another interim injunction. The two patents on which today's ruling is based aren't Galaxy Tab 10.1-specific at all. They will affect all Android-based smartphones and tablet computers, across all vendors.

If Apple wins the Australian case at the end of the main proceeding, all Android-based products will effectively be shut out of the Australian market forever, unless Google or its device maker partners settle with Apple. Therefore, Google and Samsung will have to fight very hard to have the asserted patents declared invalid, or at least have their scope narrowed.

Whether Apple will aggressively pursue all other new Android product launches in Australia in the near term remains to be seen. At this point, Apple is in litigation with Samsung, Motorola and HTC, which are the three leading Android device makers. I believe any new Australian product launches by those vendors will be at considerable risk to say the least. But Apple may decide to focus on a few disputes since any action against other companies than the "big three" would only increase the number of companies trying to bring counterclaims against Apple in different parts of the world, and Apple's legal department is already plenty busy.

Google's cavalier attitude toward other companies' intellectual property is starting to backfire in seriously harmful ways. Samsung is only the first Android OEM to suffer serious economic damage by not being able to launch products in certain markets. It won't be the last. Motorola Mobility and HTC are also under pressure. In fact, the Steve Jobs patent I mentioned is already being asserted against those companies in the United States. I'll talk about that further below.

Australia second country to ban Galaxy Tab 10.1, third country to hand Apple an injunction against Android-based Samsung products

Australia just became the second country in the world to order an interim ban against the Galaxy Tab 10.1 and the third country to grant Apple an injunction against an Android-based Samsung product.

Previously, Apple won a preliminary injunction inGermany, based on a design-related intellectual property right that was not at issue in Australia, where Apple based its case on technical invention patents. Apple is also suing Samsung over technical patents in Germany but is not seeking a fast-track decision on a preliminary injunction based on such patents.

A court in The Hague, Netherlands, recently banned three Samsung smartphones, but the ruling was technically rather narrow, a fact that enabled Samsung to engineer around a photo gallery page-turning patent and to continue to sell its products in the Netherlands. The court in The Hague did not take issue with the design of the Galaxy Tab 10.1. The photo gallery patent was not infringed by the Galaxy Tab because it ran a newer version of Android that included a workaround.

Perfect timing for Apple in light of today's hearing in California

The Sydney-based court handed its decision approximately 20 hours before a hearing at the United States District Court for the Northern District of California on an Apple motion for a US-wide preliminary injunction against four Samsung devices.

In California, Apple is suing Samsung over roughly three dozen Android-based products, but its motion for a preliminary injunction focuses on three smartphones (Infuse 4G, Galaxy S 4G, Droid Charge) and the Galaxy Tab 10.1.

The motion for a US-wide preliminary injunction is based on three design patents and a list scrolling patent. There's no overlap between the preliminary injunction motions in Australia and California in terms of the asserted intellectual property rights. Nevertheless, the Australian decision will have some psychological impact on the California case as it adds to Apple's "copycat" theory and involved some of the same balance-of-hardship considerations, which are key in some jurisdictions (though not in others such as Germany) as a court decides whether a preliminary injunction is warranted. The Australian judge appeared skeptical at some of the recent hearings but ultimately came down on Apple's side.

After three "neutral" jurisdictions handed Apple preliminary injunctions against Samsung, no one could accuse a United States court of protectionism for following suit.

Another brand new court decision that will help Apple at today's California hearing was handed by the United States Court of Appeals for the Federal Circuit, which reaffirmed in Bosch v. Pylon that the U.S. Constitution envisioned patents to be exclusionary rights and that patent infringement should in many cases result in injunctions. I quoted from that ruling yesterday on Twitter and Google+, and I saw that Apple's counsel filed a "statement of decision" to draw the California-based court's attention to this development.

Apple's two winning patents in Australia are a fundamental threat to Android at large and already being asserted in several Android-related lawsuits

These are the two Apple patents that the Australian court believes Samsung may very well infringe:

  1. Australian Patent No. 2005246219 on a "multipoint touchscreen"

    Apple is also asserting this hardware patent against Samsung in California, but only in the main proceeding, not in the preliminary injunction motion.

  2. Australian Patent No. 2009233675 on a "touch screen device, method, and graphical user interface for determining commands by applying heuristics"

    This is the Australian equivalenet of a U.S. software patent that lists Steve Jobs as the first inventor (of many).

    Apple is suing all of the "big three" Android device makers over it in the United States. The patent is asserted in Apple's ITC complaint against Samsung (filed in July 2011), in Apple's first Delaware lawsuit against HTC (March 2010), and in a lawsuit Apple filed against Motorola Mobility in Wisconsin in October 2010.

For Apple's worldwide legal crusade against Android it's key to identify winning patents: patents which the courts deem (i) valid and (ii) infringed by Android, and which are broad enough in scope that Google and its OEM partners can't work around them without rendering their products less appealing, or even entirely unappealing, to consumers. The two patents-in-suit in Australia are broad and I'm not sure whether they will ultimately survive invalidation challenges in the various jurisdictions. But if their validity is confirmed (without any major narrowing of the scope), those are killer patents that Google and its OEMs must be very afraid of.

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