Wednesday, March 7, 2012

Samsung's new lawsuit against Apple in South Korea: no détente between those two companies

The morning after Dow Jones Newswires reported that Apple made licensing offers to Samsung and Motorola (I'll comment on that in my next post), it becomes known that Samsung brought a new lawsuit against Apple in South Korea on Tuesday, claiming the infringement of three patents by the iPhone 4S and the iPad 2. According to Reuters, the patents relate to "methods of displaying data, the user interface, and short text messages".

So far, Samsung's litigation track record against Apple has been abysmal as far as Samsung's offensive claims against Apple are concerned. To the extent that any of those have been adjudicated so far in diferent jurisdictions, they've all been dismissed (though Samsung is appealing most or all of those decisions).

Samsung has been able to fend off many -- but not all -- of Apple's assertions. This includes the lifting of a preliminary injunction in Australia.

For Samsung, it's absolutely essential to succeed on some offensive counts against Apple in at least a couple of jurisdictions. Otherwise, other industry players would have doubts about the strength of Samsung's patent portfolio. There won't be a face-saving exit for Samsung before it has made a decent amount of headway with its own assertions.

After Apple sued Samsung in the United States in mid-April 2011, Samsung fired back in South Korea, Japan and Germany (and brought lawsuits in several other countries in the following months). At some point, Samsung was planning to seek a preliminary injunction against the iPhone 4S in South Korea, but changed mind. Now Samsung has again decided to play the South Korean card.

Apple's products are very popular in Korea. An injunction in that country could have significant business impact unless the enforced patent(s) can be easily worked around. It appears that this new South Korean lawsuit relates to patents that are not standard-essential, in which case there's a high probability that Apple will be able to work around them if necessary, though the effect this might have on the user experience or functionality of the products it sells in South Korea is another question.

South Korea is a highly-respected democratic country. There's no reason why a South Korean company shouldn't bring litigation in its own country, just like there's nothing wrong with Apple bringing lawsuits in the United States.

However, it would certainly be odd if Samsung lost all (or almost all) of its lawsuits in the other eight jurisdictions in which it is suing Apple (United States, Germany, UK, France, Italy, Netherlands, Japan, Australia) but then succeeded big-time in its own country. I heard that Samsung accounts for approximately 20% of South Korean GDP. Based on its revenues, I think the figure would be closer to 10%, but the 20% figure might include some indirect effects. Whether the right number is 10% or 20%, if a single company group is so pervasive in a given country, I wonder if it's even possible to find a single judge who doesn't have family members who work for such a company or other indirect relationships.

Again, South Korea is the opposite of a rogue state, but high-profile patent litigation in this industry rarely takes place there as compared to jurisdictions like the U.S. and Germany, so whatever comes out of Samsung's lawsuits against Apple is going to influence what a lot of people think of the neutrality and independence of South Korea's patent jurisprudence. Therefore, I believe it won't ultimately help Samsung too much to score big wins in South Korea unless it can also score meaningful victories elsewhere.

Over here in Germany, rumor has it that after the Düsseldorf Regional Court banned the Galaxy Tab 10.1 last summer, the South Korean ambassador contacted the German government to express concern. I'm usually hesitant to blog about rumors like this, and I can't prove this in any way, but I have it from a German lawyer who tends to be quite well informed.

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