The ongoing battle between the two largest global smart phone
manufacturers – US-based Apple and South Korean Samsung
– continues to wage with no definitive end in sight. A brief
look at the current score tends to suggest however that one is
gaining the upper hand.
The US International Trade Commission (ITC) recently issued an
order banning importation of Apple products including the iPhone 4
and early versions of the iPad, including the iPad 2, however this
exclusion order has been overturned by a decision of the Obama
administration exercising its right of veto against orders issued
by the ITC. Naturally, the Samsung and the South Korean government
have made allegations of US protectionism, but there are larger
issues in play in this current battle-front.
The reasons given by the government for exercising the veto and
overturning the import ban is that the Samsung patent in question
is a so-called standards essential patent (SEP) and is so
fundamental to global mobile communications standards that the
patent owner is effectively required to grant licences to
competitors. Samsung's defence to this claim is that it has
been willing to provide a license to Apple, but they have
consistently refused, although Samsung themselves have been at the
receiving end of allegations of not complying with their commitment
to provide a licence to the SEPs on fair, reasonable and
non-discriminatory (FRAND) terms. Where the truth lies is probably
somewhere between these two extremes, but it is unlikely that the
full detail will ever come to light, at least not while various
courtroom battles are being waged across the globe.
In the latest shot across the bow, the US ITC has issued a ban
against importation into the US of certain Samsung products which
Apple alleges infringe on its patent rights. This latest decision
is theoretically also subject to being overturned by the
presidential administration. However the circumstances between the
two cases are not closely related and ITC ban reversals are
extremely rare. For example, prior to this latest effort, the last
ban veto exercised by the US government was in 1987 by Ronald
Reagan to allow importation of certain alkaline batteries.
The patents owned by Apple and which it claims are infringed by
Samsung relate to a touch-screen control method and a headphone
function auto-detect circuit. In theory these patents can be
avoided by workarounds in the circuitry and user interface of the
Samsung devices. That is, the asserted Apple patents are not
essential for Samsung to comply with any communication standard as
was the case for the Samsung-owned patents which were the subject
of the recently overturned import ban of Apple products. Since
there are no SEPs at issue, the chance of a presidential veto of
the current ban on import of Samsung products would appear to be
Should the ITC decision against Samsung hold, this would seem to
be in line with the global trend in the Apple v Samsung
'war' where Apple seems to be getting the upper hand. While
many would argue that it is still too close to call a winner, the
state of play is that Samsung has won precisely no enforceable
actions against Apple (other than a minor damages award in The
Netherlands) in any of the various legal actions worldwide. Samsung
have also been criticised for asserting only SEP against Apple and
are the subject of anti-trust investigations on three continents
whereas Apple have scored a number of wins against Samsung in
relation to non-SEP patents i.e. intellectual property which covers
the manufacture or user interface of Apple devices. This has forced
Samsung on a number of occasions to develop work-around solutions
to avoid infringing Apple's intellectual property whereas Apple
have not been required to change its devices in any way.
Whilst most of the legal action has been fought in jurisdictions
other than Australia, the recent decisions will have an effect on
the smart phone industry here in Australia where court cases are
still ongoing in the Federal court. As to whether these overseas
developments will make Apple more confident or Samsung more
desperate, or both, is yet to be seen. In any case, we will have to
wait until nearer the end of the year to find out who will deal out
the next legal blow in Australia and how much weight it will have
Stay tuned for further dispatches from the frontline.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
Shelston IP has been awarded the MIP Global Award for
Australian IP Firm of the Year 2013.
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