Saturday, December 22, 2012

Samsung reportedly sues Apple over notification center patent in Korea

PatentlyApple yesterday brought to the attention of other media a report by the BrightWire news service, citing Korean news site iNews24 as its source, according to which Samsung has filed a patent infringement action against Apple in South Korea over a notification center patent.

In all likelihood this is a non-standard-essential patent. Clearly, Samsung needs to step up its non-SEP assertions against Apple because its original SEP-centric litigation strategy has been a near-total failure: it obtained injunctive relief only in Korea (but enforcement has been stayed for the duration of the appeal), an entitlement to damages (which have yet to be determined but will be modest) in the Netherlands, lost out on various claims in the U.S. and several European countries, received a skeptical initial indication by an Australian judge, and yesterday found itself at the receiving end of a Statement of Objections, a preliminary antitrust ruling, by the European Commission despite having unilaterally dropped its European SEP injunctions requests in a last-ditch effort that was apparently too little, too late to dissuade the EU's top competition enforcer from determining on a preliminary basis that Samsung needs to be fined for the past pursuit of injunctions anyway.

Without more detail it's hard to form an opinion on the merits of Samsung's notification center infringement claim.

Even Apple's loyal fans over at Cult of Mac say "it's hard to deny that Apple didn't take a little bit of inspiration back from from Android, too", and acknowledge the following:

"[Apple's] Notification Center is an almost identical copy of Android's -- that's easy to see no matter which side of the fence you're on."

But this doesn't necessarily mean that Samsung owns a patent that reads on the iOS Notification Center. Google was just granted a notification center patent in the United States, but Samsung can't patent what Google creates. It can patent some further enhancements of Google's creations, or it can acquire a patent from Google (if Google feels it should give ammunition to its Android partners to sue Apple, or that it should compensate for the poaching of Samsung talent), but there's no such thing as shared patent ownership among an entire ecosystem.

As I reported this week, Samsung continues to bring new infringement contentions in the U.S. (as does Apple), such as recent allegations that the FaceTime videotelephony software infringes a patent Samsung acquired last year from a group of U.S. inventors. The patent used against FaceTime also appears to be non-standard-essential. It will most likely expire before Samsung would (if ever) win an injunction over it, but again, it's a positive thing that Samsung increasingly relies on non-SEPs. Apple is also asserting exclusively non-SEPs against Samsung.

As an aside, I'd like to mention that a Finnish Twitter follower of mine yesterday suggested that Nokia "[s]hould finally go after Samsung" (in response to my report on RIM's decision to pay royalties to Nokia). I presume that Samsung already has a license to Nokia's cellular SEPs: I don't know of anyone in the industry who doesn't, besides ViewSonic (which Nokia is suing in Mannheim, Germany, over SEPs as well as non-SEPs). But Nokia is now clearly more interested than it used to be in selling licenses covering certain non-SEPs. The RIM deal involves not only WiFi (WLAN) SEPs but also some non-SEPs (otherwise Nokia wouldn't have agreed to withdraw the related lawsuits in Germany). Nokia is suing Android device makers HTC and ViewSonic over non-SEPs as well (in the U.S. and in Germany). In a handful of these cases, Google has already chosen to intervene because its own core apps and services are at issue. Unless Samsung and Nokia already have a license agreement in place that covers such patents, it's a given that Nokia will at some point insist that Samsung take a license. If Samsung still needs a license, it will probably watch closely any developments in Nokia's U.S. and German lawsuits against HTC and ViewSonic. Nokia emerged victorious from its disputes with Apple and RIM, it will undoubtedly defeat HTC and ViewSonic, and I can't see how Samsung could avoid being the net payer under any deal with Nokia.

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