Friday, March 2, 2012

Mannheim court throws out third Samsung 3G lawsuit against Apple and one of two slide-to-unlock lawsuits against Samsung

This morning, the Mannheim Regional Court handed down two patent rulings involving Apple and Samsung. Judge Andreas Voss threw out the third Samsung v. Apple lawsuit in a row (over a 3G/UMTS-essential patents like the previous two) and one of two Apple v. Samsung slide-to-unlock lawsuits pending in Mannheim (the other case is over a utility model, a special German kind of intellectual property right, and a decision on that one will be announced in two weeks from today, i.e., on March 16; further below I'll explain why today's decision does not in any way diminish the chances of success of the other slide-to-unlock case).

Samsung today announced its intent to appeal the dismissal of its case, and while Apple typically declines to comment, I believe they, too, will appeal, especially since the Mannheim court's interpretation of the slide-to-unlock patent was narrower than the one the Munich I Regional Court adopted in a case that Apple won (for the most part) against Motorola two weeks ago, a fact that shows that there's room for interpretation and appeals courts could decide either way. There are also differences between the slide-to-unlock implementations by Samsung on the one hand and Motorola on the other hand, but what was outcome-determinative here was claim construction. In some other cases I found the Mannheim court's interpretations very broad -- in this case it's quite narrow and I believe the Munich court had some good reasons for a broader interpretation, but we'll see what happens at the appeals courts.

Samsung still hasn't been able to enforce any intellectual property right anywhere on this planet against Apple, while Apple has had some successes (though only preliminary ones so far, most of which were subsequently lifted). It lost all three cases that it brought in Mannheim last April in response to Apple's first U.S. lawsuit against its Korean rival. In December, Samsung asserted four new patents (two more wireless-essential ones as well as two non-standard-essential ones including a smiley input method patent). With respect to those four new patents, Samsung decided to work with different law firms. I'll talk about that further below.

Samsung lost today's decision on a standard-essential patent because the patent covers a method to computate a certain mathematical result, but the specifications of 3G/UMTS don't require a phone to perform the computation: it just has to use the result, and the owner of a path doesn't necessarily own the destination exclusively, at least not in a case like this. If Samsung had not lost for this reason (that falls within the scope of patent law per se), Apple could have averted the enforcement of an injunction by raising an antitrust FRAND defense of the kind that just succeeded against Motorola in the same circuit (the Mannheim Regional Court's rulings are appealed to the Karlsruhe Higher Regional Court). There was no clear and present danger here of Samsung shutting down Apple's products even if it had won today's decision.

Four of (at least) 14 Mannheim cases between Apple and Samsung have now been ruled on

At least 14 Mannheim lawsuits between Apple and Samsung are known, and four of those have now been adjudicated.

As I mentioned before, Samsung asserted four new patents in December, and had asserted three in April.

The Mannheim court has yet to rule on (at least) six other Apple cases against Samsung, including, among others, the aforementioned slide-to-unlock utility model case as well as a case over a photo gallery patent (the one that succeeded against Motorola yesterday in Munich) and one over a list-scrolling patent (in this recent blog post I reported on the photo gallery trial in Mannheim and the new assertion of the general list-scrolling patent).

Today's decision does not reduce the likelihood of success of Apple's other slide-to-unlock case against Samsung

Since counsel for both parties was present, Judge Voss provided some further explanation of the court's reasoning. As I mentioned before, the whole issue here that made Apple lose, for the time being, the slide-to-unlock patent case against Samsung is just the interpretation of certain key terms ("predefined", "displayed", "path"). The slide-to-unlock utility model has a large number of claims, and some of those are much broader and don't have the related limitations. Therefore, today's decision does not mean anything for the decisions on the broader claims of the utility model that will come down in two weeks' time.

The utility model faces a different kind of challenge: since utility models don't undergo much scrutiny (it's a formal rather than substantive examination), there's no presumption of validity when they are used in litigation. In other words, the holder of a utility model can sue over it, but he has to prove that it's valid, while German regional courts only stay patent infringement cases if there's a high probability of invalidity.

As a result, the risk of the Mannheim court staying Apple's slide-to-unlock utility model case is high, but if there's no stay, then an infringement finding is very likely (I even think it's a foregone conclusion but don't have access to all of the information I'd need to be sure). The Neonode N1m, which courts have so far considered eligible as prior art for the slide-to-unlock patent, is not necessarily prior art in connection with Apple's utility model: the rules for prior art are slightly different for both categories of intellectual property rights. If the Neonode is not deemed prior art, the utility model will almost certainly be considered valid (and, as I said, in that case an injunction is highly probable).

Apple had a phenomenal week in Germany

Whatever may happen with the appeal of today's slide-to-unlock decision and Apple's other slide-to-unlock case against Samsung, there can be no doubt that this was Apple's best week so far in its German Android-related litigations.

Monday's decision on FRAND was a strategic victory. It is hugely helpful to Apple (and potentially also to Microsoft) in Germany, and it will indirectly even help Apple in other jurisdictions (since it can point to a preliminary finding of senior German judges that Motorola is contravening antitrust law by refusing to accept Apple's proposal to take a license to MMI's wireless-essential patents). The second injunction in a row against MMI (even though MMI has modified its products and will keep selling them) further helps Apple to achieve product differentiation: each such decision forces those Android companies to drop or hobble certain features, or precludes them from certain improvements they'd otherwise like to make. None of the patents asserted so far are "killer patents", but they cover features that people like.

Including today's dismissal of a Samsung lawsuit, Apple won three out of four decisions in Germany this week (the Munich one was a glass-more-than-half-full kind of partial victory). In terms of strategic relevance, the Karlsruhe FRAND decision was hugely more important than the other three combined.

Samsung's new German law firms: Quinn Emanuel and Krieger Mes replace Rospatt

Samsung's aforementioned recent assertions of four new patents were brought by the law firms of Quinn Emanuel and Krieger Mes, as opposed to the Rospatt firm that handled Samsung's first cases). Quinn Emanuel is one of the best commercial litigation firms in the world (by some accounts even the best) and a rising star in Germany. Krieger Mes is regarded as one of the best German IP "boutiques".

It's fair to say that both these firms have a considerably higher profile than Rospatt, but ultimately it's about both the merits of your cases and the quality of the legal work performed on your behalf. Needless to say that Apple's lawyers here are clearly world-class.

The Rospatt firm may still be involved with some of the cases in which Samsung is defending itself against Apple as well as, potentially, some of the appeals of the offensive Samsung cases that firm handled in Mannheim.

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