Monday, October 22, 2012

Japanese court rejects two of Samsung's patent infringement claims against Apple

There are countries in which it's very difficult to monitor lawsuits. The United States is unique with PACER and other tools. In other places, such as Germany, one has to physically attend court hearings and announcements. And there are jurisdictions in which rulings may surface only with considerable delay if the parties involved don't speak out. In an Apple-Samsung dispute, Samsung generally won't speak out if one of its offensive cases fails, and Apple hardly ever says anything, even if it fends off assertions by others.

On Saturday, the English edition of Japanese newspaper The Asahi Shimbun revealed rulings by the Tokyo District Court that had already come down on September 14 and October 11. About a year ago, Samsung had brought three claims against the iPhone 4S. The September 14, 2012 ruling reportedly held Apple not to infringe a Samsung patent related to app downloads, and the October 11, 2012 ruling was apparently based on doubts about the validity of a patent relating to the in-flight (airplane) mode. I interpret the report by Asahi Shimbun staff writer Ryo Takano to the effect that the patent wasn't considered a non-obvious innovation over the prior art.

Samsung still has a third patent in play in Japan, unless there's been another stealth ruling. The third one relates to the utilization of homescreen space. Details of these patents are not available to me.

At the end of August, the same Tokyo-based court had ruled against an Apple assertion of a multimedia synchronization patent, a decision that Apple has meanwhile appealed (just like Samsung will probably appeal these other rulings as well). As I explained at the time, if a company with many patents and deep pockets, be it Apple or be it Samsung, doesn't prevail in an offensive case, it's not a defeat: it's merely a non-win for the plaintiff and a non-defeat for the defendant. These large players just appeal those cases and, more importantly, keep suing over plenty of other patents around the globe. The rest is just legal fees. It's like a low-scoring ball game where all that matters in the end are the goals you score and the ones you concede, not the failed attempts you make to score.

The total worldwide score clearly shows that Apple is on the winning track. Outside of Korea, all that Samsung has won offensively is a case in the Netherlands where it didn't prevail on by far and away the most important question -- injunctive relief -- but will have to content itself with a small amount of damages and future royalties. Samsung's problem is not that there were two non-wins in Japan. Samsung's problem is that Apple has won a variety of rulings (even if none of them had or has the potential to force Samsung out of a major market) while Samsung hasn't won anything meaningful outside of Korea, and nothing anywhere in the world over a non-standard-essential patent. In its desperation it's even suing Apple over a smiley input patent in Germany, a lawsuit that won't have any impact on Apple's business even if Samsung wins, which is doubtful. Samsung can afford many non-wins, but if pretty much all of its assertions outside of Korea are non-wins, it's going to lose the war, even if it may take Apple more time to have serious leverage. It has to enforce some reasonably powerful non-standard-essential patents at some point.

On Friday, one of Samsung's German counsel doubted in open court the European Commission's speed and resolve on the issue of SEP abuse, but I doubt that Samsung will have near-term leverage over Apple in Germany. Samsung is, however, defending itself very well. The California jury verdict is a problem but the question of injunctive relief, which is the key strategic issue, could be decided either way. In that debate, Samsung's U.S. lawyers noted that "Apple can claim no patent on 'fun' and no monopoly over 'ease of use'", and claimed that Samsung has already worked around all three multitouch software patents the jury found infringed, though one of these workarounds (for "rubber-banding") is just a removal of a feature (not a replacement of comparable quality) and another one may give rise to an enforcement dispute.

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