The ongoing  tension between the two companies has been well documented by the IPilogue. Visit , , and to trace the progression of these legal battles. When Apple against Samsung in 2012 for infringing on several of its patents, Samsung returned with a  claiming that Apple had been dabbling in some infringement of their own.

On May 5th, a Californian jury that, in fact, both companies had infringed on one another's patents and each company was rewarded damages accordingly.  Apple was ordered to pay Samsung $158,400 for infringing on ���ڴǰ� photo and video organization in folders. Of the 5 Apple patents at issue in this case, Samsung was found to have infringed on only 3. All of Samsung's devices infringed on Apple's  while only some devices infringed on the  as well as the  patents. Based on the jury's findings, Samsung was ordered to pay Apple $119.6 million in damages, significantly less than the $2.2 billion they had asked for.

So can we find a clear 'winner' and 'loser' in all of this? It really depends on how you look at it. Looking at the damages alone, it may appear to be a 'win' for Apple. On the other hand, Apple not only asked for more money than they were awarded in this case, but also asked for a sales ban on Samsung's infringing devices. According to , the outcome of the trial was not what Apple had hoped for and unsurprisingly they have already set the wheels in motion to . Apple has asked presiding Judge Lucy Koh for a retrial to recalculate the damages Samsung should be required to pay as well as to issue a sales ban on the infringing devices. This prospect seems unlikely given that Judge Koh has twice ( and ) refused these requests.

What was particularly interesting about this case, and what Samsung argued in court, is that many of the aspects of their phones that were thought to infringe on Apple's patents are actually part of Google's Android operating system that powers Samsung phones. Though this argument did not officially influence the jury's decision, it brings up an interesting question. Why doesn't Apple go after Google? After all, Steve Jobs reportedly did  in his biography written by Walter Isaacson, "I'm going to destroy Android, because it's a stolen product. I'm willing to go thermonuclear war on this." One likely reason is that it is difficult to go after Google head on when they offer their operating system for free and do not directly profit from it. In comparison, the device manufacturers are much easier targets.

Recently, Apple agreed to with Motorola Mobility, which Google had  but decided to sell to Lenovo Group Ltd. in January 2014. The sale was for a fraction of what Google had paid and as part of the deal they maintained the majority of Motorola's patents. Apple was in fact in legal battles with Google, even if indirectly, but decided to stop litigation. Why? Perhaps because both companies had already invested far too much time and resources in the battle. I think another reason, and one that seems more prominent, is that Apple would rather focus on the bigger fish in the sea.

Motorola is for Apple, which makes them less of a threat and perhaps not worth spending millions of dollars in legal fees fighting against. Samsung, on the other hand, may be worth their while. Particularly if they are able to secure a ban on their infringing devices.

At the end of the day it seems that Apple is not as concerned about enforcing their intellectual property rights as they are about maintaining a stronger share of the smart phone and tablet market. Then again, perhaps these two things aren't so different in the first place. In my opinion, the fact that Apple is willing to drop lawsuits with smaller, less threatening manufacturers, signals that this is not about recovering all of the time and money that went into the research and development of their devices or the fact that companies have infringed to produce cheaper versions of what Apple spent years developing. This is what is argued and can be argued legally, but the reality is that the decision to pursue legal action going forward will likely have more to do with which company is most successful in detracting from Apple's own share of the market.

Maggie Reid is an IPilogue Editor and PhD candidate in the Communication and Culture program at 91��ɫ/Ryerson University.

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Much has been written about the patent system worldwide, and in particular the issues with software patents. In 2012, the New 91��ɫ Times  that patent litigation and purchases in the smartphone industry grew to $20 billion dollars over the previous 2 years. The Times also  that Apple and Google had spent more in 2011 in this regard than on research and development. One would think these massive investments by technology companies would only be made if there was an associated return. A Wall Street Journal  found, however that all of this investment by smartphone companies has yielded little reward in terms of monetary compensation or worthwhile injunctions. Even the highly-publicized $1 billion dollar Apple victory has been , and is currently under appeal. (See past IPilogue coverage on the initial , and the subsequent .) Similarly, an injunction won by Apple against a Samsung tablet and phone was eventually . While these developments would not indicate a positive return on these large involvements, the true net benefit of patent litigation must be considered in light of the entire patent system, and in doing so, account for the perspectives of all the players involved.

What Else Did Apple Gain?

While return on investment is typically measured financially, there are many benefits beyond monetary that can be argued to have been gained by Apple. By vigilantly defending its patents, Apple has shown a willingness to take others to court when it believes its intellectual property has been infringed on. Apple's willingness to defend its patents likely increases the deterrence factor and encourages other parties to invest in proper research and development to ensure that they do not infringe any of Apple's intellectual property. Apple also gains affirmation in those patents which have been upheld, likely strengthening and streamlining future legal actions where those patents are involved. Neither of these benefits are necessarily reflected by monetary awards or injunctions being granted, but benefit Apple nonetheless.

What Else Did Samsung Lose?

Samsung could be seen as having two main losses beyond the real financial costs of the award and legal defence. By being found guilty of infringement, Samsung has to address its internal product development process which lead to the construction of infringing devices. This will require increased investment and work to produce future products that do not infringe patents owned by Apple or other constituents. This will also introduce uncertainty into Samsung's product development, as current product roadmaps will need to be modified to avoid similar infringement claims in the future.

Finally, this award against Samsung sends a message to the market that they inadequately protected themselves from this legal risk. This could lead to concerns by investors that Samsung may be exposing themselves to other legal liabilities. At a minimum, this massive award against Samsung at least implicitly undermines the company's reputation in the public eye for originality and innovation.

What About Third Parties?

Interested third parties can, for the most part, be divided into "other smartphone manufacturers", and "consumers". In the future other smartphone manufacturers will have to increase investments in patent acquisition and due diligence to avoid similar infringement suits. This will affect their ability to invest and plan future products, potentially shifting resources from new product development to managing intellectual property.

Consumers have the most to lose and least to gain in the ongoing smartphone legal battles.  As manufacturers inevitably internalize the cost of patent acquisitions, litigation, and payment of settlements, smartphone prices paid by consumers must rise to cover these costs. If Apple's patents are upheld and Samsung is found to infringe on them, consumers may further lose from a reduction of competition in the market spurred by an extension of Apple's monopoly over patented technology. Consumers may also benefit, however, from stronger intellectual property protection which would encourage further investments in research and development. As a result, new innovative products would likely be developed with the assurance that effective legal protection will be given to these new inventions. This was the original "trade-off" of the patent system; public disclosure of an invention in exchange for a time -limited monopoly ensuring that investments in research and development can be profitably commercialized.

The View Forward

While ongoing for many years, many patent suits have yet to be definitively decided by the courts. Many parties are interested in seeing how the various suits pan out, as positive results may have a cascading effect and encourage more enforcement actions. It will have to be seen whether this will stifle innovation by expanding monopolies, or encourage more investment with the promise of effective protection.

Alex Buonassisi is an IPilogue Editor and a JD Candidate at Thompson Rivers University.

The post Can Apple Unlock a Benefit to the Smartphone Patent Wars? appeared first on IPOsgoode.

Three issues were argued before Justice Koh: (1) whether the damages awarded by the jury were appropriate; (2) whether additional Samsung products should be added to the injunction order; and (3) whether the jury decision should be thrown out because of alleged misconduct from the jury foreman.

Damages: Willful Infringement v Reverse-Engineering

On the first issue, Apple is seeking to add another $770 million to the damage award based on the jury’s finding of willful infringement in August. “Hopefully after an injunction they will be deterred from getting this close to the line and we will not be back in front of you in the future,” Apple attorney Michael Jacobs told Judge Koh.  Samsung wishes to have the damages re-examined by Justice Koh given a number of calculations it found to be anomalous. “You should reverse-engineer (the damages), make sure jury verdict is causally related to the evidence based on legal theory,” Samsung lawyer Kathleen Sullivan submitted.

Injunction: An Interesting Legal Question

On the second issue, Apple is seeking to have 26 additional Samsung products added to the original injunction ordered in August.  Apple is arguing that the additional products are not more than "colourably different" from the ones already banned. Samsung of course opposes this.  Although only three of Samsung's products at issue in the original verdict  are still on the market, a sweeping ban such as the one argued by Apple would substantially hurt the Korean company’s image with retailers and leave open the possibility of a ban on many more of its devices that are not more than "colourably different" from Apple's patents.

This raises a couple of interesting legal questions: if Justice Koh accepts Apple's argument, could it mean that innovators could go after products that have been "designed around" existing patents if they are not colourably different?  Moreover, if a product only infringes one out of  thousands of possible features on a device, should a court ban the entire product? Justice Koh may set an interesting legal precedent with her answer to these questions.

Re-Trial: Jury Misconduct

On the third issue, Samsung is seeking to have the original verdict thrown out and a new trial granted, arguing by jury foreman, Velvin Hogan. Hogan had failed to disclose that he was once sued by his former employer, Seagate, which has a strategic relationship with Samsung. Apple maintains that Samsung should have raised this issue at the voir dire for jury selection. Samsung responded that it did not know of Hogan’s previous law suit at that time.

Justice Koh stated that she would issue separate rulings based on subject matter in the coming weeks.

Why this Matters to Canadians

Thus far, the Canadian market has been left largely untouched by Apple’s legal strategy.  However, on August 7, 2012, the Canadian Intellectual Property Office issued Apple Inc. the of its infamous “bounce-back” patent, patent no (“‘381”). With this foothold in the Canadian patent system, Canadian companies and taxpayers may be the next to get dragged into this global dogfight.

Like its American cousin, Canadian patent no (“’177”) teaches a method for “intuitively” communicating to a touch-screen user that he or she has scrolled to the edge of an electronic document.  It allows a user to “pull past” the edge of a document when he or she has reached its end, then snaps the displayed content back to the edge of the display area when the user releases the screen.  The specifications between these two patents are nearly identical and the first independent claims are very, very similar. 

As a commercial tool, the “bounce-back” patent has been used in many of Apple’s legal and commercial maneuvers to keep its competitors out of touchscreen markets.  For example, just this past year:

1. The ‘381 patent was the only utility patent asserted by Apple against Samsung in its recent infringement against Samsung in California;
2. The ‘381 patent was one of five patents Apple asserted against HTC in a to the United States International Trade Commission of tariff violations; and
3. The Australian version of the ‘381 patent (, "'283") is currently one of the patents Apple is asserting in for a preliminary injunction against Samsung's Galaxy Tab 10.1 in that country.

According to the CIPO patent database, Apple Inc. has been since August – bringing the total number of active Canadian patents owned by Apple to . While there is no guarantee that Apple will bring the next battle to Canada, with due for release and the Canadian government’s recent to encourage home-grown entrepreneurship, one wonders if the Canadian market and patent office are prepared should Apple begin flexing its exclusive rights this side of the border.

For companies looking to defend themselves from possible infringement suits, it may be helpful to follow the being conducted by the USPTO on the ‘381 patent to determine if a similar re-examination request can be filed with the Canadian patent office against the ‘177.  For those representing Apple’s interest in Canada, it may be worth considering how the absence of file-wrapper estoppel and jury trials in Canada would affect a Canadian strategy against potential infringers. For lawmakers and benchers, it may be worth considering, more broadly, whether for computer-based patents outlined in the really provide sufficient disclosure of claimed subject-matter to qualify as the patentee’s “quid” for the state’s “quo” of an exclusive monopoly as in the recent SCC decision in .

Prospect for Peace? All Eyes on San Jose

As Justice Koh urges both tech giants to work towards a settlement, one thing is clear: all eyes will be on San Jose in the coming weeks.  The legal community will be waiting to see how Justice Koh rules on the above legal questions just as the business community will be watching to see whether or not Apple and Samsung do in fact make peace. According to statements made by  just after the hearing-- the ball is in Apple's court.

Beatrice Sze is a JD Candidate at Osgoode Hall Law School

The post "It's Time for Global Peace": US Judge Urges Peace Between Samsung and Apple appeared first on IPOsgoode.

This settlement means that all current patent litigation cases are now dismissed, with a 10-year licensing agreement for all current and future patents held by the two companies to be implemented in its place. Along with Samsung and Google, HTC has been one of the most heftily targeted companies in Apple’s assertions of patent infringement over the past few years.

The agreement is confidential, but it comes as no surprise that Samsung had to see a copy of the licence agreement between Apple and HTC. As soon as the settlement was publicized, Samsung’s President of IT and Mobile was that his company has no intentions to negotiate with Apple and settle out of court. As of November 21, Samsung's motion to compel was by Judge Paul S. Grewal, meaning that Apple and HTC must immediately provide a fully unredacted version of the agreement for the exclusive viewing pleasures of Samsung's lawyers as part of the judgment's Attorney-Eyes-Only designation. Currently, the redacted text is neatly comprised of the 33 key words that reveal the financial arrangements of the licencing deal with HTC.

Given that the basis of Apple’s claims against the South Korean electronics powerhouse is premised on the fact that Apple must show that irreparable damage was experienced and cannot be adequately compensated by monetary means, the specific licences granted between Apple and HTC is surely of interest to Samsung. After all, it is conceivable that at least some of the licences agreed upon between the two companies are the same ones in question in the patent lawsuits currently being fought between Apple and Samsung. In its second major case against Samsung (not to be confused with the earlier decision of Apple Inc. v Samsung Electronics Co. Ltd. et al, which the IPilogue covered , and now looks like may be ), Apple that there are certain patents it would never licence, therefore a full-out ban ordered by the court would be necessary to protect is intellectual property for irreparable damage. If Samsung can show that Apple is more than happy to take financial compensation for a contested patent in lieu of an injunction on selling a product, then Apple may have to eat its own words.

Even though both HTC and Apple called for a return to focusing their efforts on innovation rather than on litigation, the legal department at Apple has been grappling with a smorgasbord of recent decisions related to the company’s intellectual property. In complying with a U.K. court ruling to publish an apology for alleging that Samsung copied the design for its Galaxy tablet from the iPad (previously covered by the IPilogue ), Apple injected a tad more tongue-in-cheek humour than what the England and Wales Court of Appeal were prepared to chuckle at. While the initial order provided strict guidelines for how Apple was to issue an apology to Samsung, the iPad makers instead used the opportunity as a marketing tool to denounce the ingenuity of Samsung products.

It looks as though by Apple’s backhanded commentary on the how the High Court got it all wrong, premised on the mere fact that other jurisdictions decided in favour of Apple and said Samsung had in fact copied its design of the iPad. A further order has been put in place by the Court of Appeal for Apple to remove its original apology statement and replace it with another that fully complies with the original order, with an extension on the period of time for which this notice must remain on its website. Sir Jacob was so aggrieved by Apple’s conduct that he awarded costs against the company on an indemnity basis, saying that this higher standard of awarding costs can be done “as a mark of the court’s disapproval of a party’s conduct, particularly in relation to its respect for an order of the court.”

The bad news doesn’t stop there for Apple – in Texas, the company was recently slapped with a $368 million damages order after over networking patents used in FaceTime. VirnetX’s success has fueled its confidence to that were not originally included. In China, Apple has just a decision from the Beijing Second Intermediate People's Court to pay the Encyclopedia of China Publishing House RMB520,000 as compensation for selling a pirated version of the Chinese encyclopedia in its App Store. Meanwhile, from across the Atlantic we’ve gotten word that Apple has paid a lump sum of $21 million to for using a copyrighted and trade-marked image of SBB’s station clock without permission as an application icon in iOS 6. The Swiss-designed clock face is still used in SBB stations today. With the slew of lawsuits Apple has brought against other tech giants like Google and Samsung in recent years, it's odd to see Apple being accused (and found at fault, no less!) for infringing on the intellectual property rights of others.

However, it’s not all ominous news for Apple these days. The tech giant was recently granted an incredibly broad design patent for what essentially looks to be a by the United States Patent and Trademark Office. The figures included in the application look to be quite specific; the home button along the bottom of the tablet and the slight curve of the backside are clearly marked out in this design patent. While it’s doubtful that Samsung, HTC, and other tablet makers will likely be moving away from their already-established design aesthetics for a close copy of the iPad, certainly most tablet products fall in line with the general rectangular shape with “softened” edges.

Most recently, it was reported that Apple . Okay, maybe this is an over-simplification of what the patent actually is for. Technically Apple received the patent for the way that the animation appears when users swipe their fingers across the screen to flip to the next page. Apparently no other competitor has developed this specific animation in doing the same type action. It will be interesting to see how tablet computer makers derive innovation from these new (and broadly applicable) restrictions in future product designs.

Fan Hannah Lan is a JD Candidate at Osgoode Hall Law School.

The post Bushels of Legal Issues for Apple: An Update on How the Tech Giant is Fairing in IP Law Around the World appeared first on IPOsgoode.

In addition to the conventional orders that Samsung was entitled to as the winning litigant, the tech giant has sought additional remedies. Specifically, Samsung applied for an order requiring Apple to publish a series of notices in major publications and on its website acknowledging that Samsung did not infringe Apple’s registered design. The judge sided with Samsung and instructed that the notice should be posted on Apple’s UK website and remain there for six months. Naturally, Apple requested the order to be stayed pending the appeal of the main action. The request was turned down, prompting Apple to make an .

The publicity order has become a new point of contention in the seemingly never-ending litigation previously covered by IPilogue , , , , , and . The order to publish the notice was justified on the grounds that Apple’s repeated allegations that Samsung engaged in have resulted in commercial harm and contributed to commercial uncertainty. Samsung argued that because these allegations continued even after the judgment was rendered, an injunction was necessary to “prevent the court’s declaratory order being frustrated” (). In a further show of confidence, Samsung offered to compensate its rival for any losses suffered as a result of the order if it is overturned on the main appeal.

Apple’s counter-argument is that the main appeal will be rendered irrelevant unless the order is stayed. In other words, even if it were to succeed, significant and irreparable harm would have already been sustained. In addition, the purpose of the order has largely been fulfilled because the outcome of the main action has been widely publicized in the media to the detriment of Apple’s reputation.

The court was ultimately persuaded that refusing to stay the order would “render the appeal wholly or largely nugatory” () and that any harm flowing from Apple’s allegations is greatly reduced by extensive media coverage of the judgment.

The approach taken by Samsung in this case raises interesting questions regarding the appropriateness of granting a publicity order in the context of an on-going global dispute.

First of all, all but the most sophisticated observers are unlikely to differentiate between judgments in different jurisdictions. Therefore, any notice posted on Apple’s UK website publicizing the UK judgment will likely have a significant effect beyond the jurisdiction where the court has authority to issue a publicity order. It could be argued that any collateral damage is justified, since statements made by Apple have a similar far-reaching impact. Nonetheless, there is a significant difference that militates against this argument: Apple’s statements are about their global dispute; the order issued by the court, on the other hand, is supposed to be confined to publicizing matters under its limited jurisdiction. To add to that, if global ramifications are considered, it becomes exceedingly difficult to assess the relative (in)justice to either party.

Furthermore, it should be noted that when the court initially granted the publicity order it also denied Samsung’s request to restrain Apple from expressing its opinion that the judgment was incorrect. The judge found that it would amount to “an unjustified interference with Apple’s right to express that opinion publicly” (). It is far from clear what the net effect of these remedies would have been. One could argue that compelling Apple to promote notices that directly contradict its repeated assertions to the contrary would have limited value when it comes to setting the record straight. In fact, it could further contribute to “commercial uncertainty” that Samsung was concerned with.

At the end of the day, the decision to stay the order for the time being appears to be based on sound considerations. If Samsung prevails on appeal, the court will have a chance to reconsider the appropriateness of granting a publicity order. Having dodged the bullet this time, it remains to be seen if Apple will restrain itself from making remarks in order to avoid giving Samsung more ammunition.

UPDATE October 18, 2012:

The UK Court of Appeal has rendered their judgment and upheld the ruling of the High Court that Samsung did not infringe Apple’s registered designs. As a result, the Court once again considered the publicity order issued by HHJ Briss.

The Court concluded that the proper test to determine whether the order is necessary is “whether there is a need to dispel commercial uncertainty” (). The Court went on to say that massive publicity generated by the earlier decision proclaiming that Samsung tablets are “not as cool” () could have rendered the order unnecessary. Nonetheless, the Court concluded that Apple’s subsequent actions have generated considerable commercial uncertainty and, therefore, the order is justified.

It was specifically pointed out that Apple has obtained and attempted to enforce an injunction in Germany despite the fact that HHJ Briss’s judgment was binding throughout the European Union. The German order banning the sale of Samsung 7.7 tablet was highly publicized. As a result, the Court reasoned, commercial uncertainty was generated. Faced with uncertainty as to the legal status of Samsung devices consumers would think that the “safest thing to do either way is not to buy one” ().

Therefore, since Apple was responsible for creating the confusion, and widely publicized and seemingly inconsistent media reports are not enough to dispel the uncertainty, the publicity order is justified: “The acknowledgement must come from the horse’s mouth. Nothing short of that will do the job completely” ().

In considering the form of the order, the Court was concerned with ensuring that it is proportional. Acknowledging the importance of Apple’s webpage as its key marketing tool, the order only requires a link (“in a font size no smaller than Arial 11pt” () entitled “Samsumg/Apple UK Judgment.” Further, the required period during which the link must appear has been reduced from six months to one month.

Anatoly Zhitnik is a JD Candidate at Osgoode Hall Law School.

The post Stay Wars: Apple Strikes Back (UPDATED) appeared first on IPOsgoode.

After three days of deliberation, a Californian jury have made it clear who won the first round in what is expected to be a much longer bout in the ongoing legal battle between Apple and Samsung. To see past IPilogue Articles covering Apple v Samsung, click , , , , and . Last Friday,  to be paid by Samsung for its willful actions in copying Apple designs. While there is a lot that could happen before Samsung is forced to pay any kind of award, law and business professionals alike are waiting with bated breath to see how the legal landscape will change as a result of this monumental decision.

Even with the prospect of such a large award looming over Samsung, the uncertainty that the award will be upheld is giving the South Korean corporation some time to regroup. Samsung is planning on filing a  to have the decision overturned by Judge Lucy Koh, who oversaw the litigation. While the motion may be a boon for Samsung should they be successful, . In addition, the post-verdict motions period could make a bad situation worse; the jury found that . According to the US Patent Act, a court can  when this is found to be the case. Another consideration for both parties is an  set for September 20^th to see if Samsung’s infringing products will be banned for sale in the US.

An issue that is sure to be focused on by Samsung’s legal counsel is  with which the 9-person jury came back with a decision on a case of such complexity. Velvin Hogan, the foreman of the jury is an engineer with patents of his own ���Ի��� that the group had reached a decision without the help of the instructions provided to them. While Hogan has said that the jury , the suspicion for bias or a rushed decision is strengthened by the fact that the jury had . While this was rectified by the court and reduced the award by roughly $2.5 million, Samsung may attempt to leverage this error in order to have the decision thrown out by the judge.

There were also some notable differences in results from the trial concerning the same issues that was decided earlier Friday in Samsung’s home territory of South Korea. In that case, the court ruled that Samsung devices had not copied the design of Apple devices but that  in various ways. While this was a minor victory for Samsung,  that the ruling concerning Samsung’s industry-standard patents will produce anti-trust and monopolization issues if rival companies ever attempt to sell their products in South Korea.

In the aftermath of the jury verdict,  issued responses as to their thoughts on the decision and their plans for the future. In many ways the statements of the two companies reflect the thoughts of legal theorists that are on either side of the ongoing discussion about patent law and how it is used in the tech industry today. Samsung’s comments refer to Apple’s verdict as a loss for consumers; that it will diminish innovation and provide consumers with fewer choices. It also mentions how . On the other side of the coin, Apple’s statement focused on the fact that the lawsuits were not just about patents and money but about . While it is difficult to say that either company is completely correct, it is clear that in the current market of smartphones and tablet computers, a market worth roughly , the patent is a powerful weapon in any corporation’s arsenal.

Adam Del Gobbo is a JD Candidate at Osgoode Hall Law School.

The post Apple Emerges Victorious over Samsung, but What Does it Mean? appeared first on IPOsgoode.

As previously reported by the IPilogue , , and , the lawsuit began in April of 2011 when Apple served Samsung with a number of claims stating that Samsung had  device designs, packaging, and application icons. Samsung quickly responded with its countersuit, alleging that Apple products . These actions have led to  being filed between the two companies in 10 countries. While this number seems large, it could become even larger as the suits will likely be split up by the courts.

Even more mind-boggling than the number of lawsuits concurrently taking place between Apple and Samsung is the number of  made by Apple against Samsung in April 2011. Since the initial filings, a number of patent claims from both sides have been dropped. Judge Lucy Koh is overseeing the suit in California and recently stated that to force a jury to pass judgment on so many claims would be a �����Ի��� to reduce the number of claims being made against each other. The dropped claims will shrink the potential damages that either side can obtain but if Apple’s claims are (as they are aiming to do), it could allow them to take another bite at the proverbial apple.

While the order has been successful in reducing the number of claims that the California case will now center on, both sides seem as  on the issues as ever. Mediation is scheduled for the end of May 2012, but  within the technology, business, and legal communities that this will lead to a settlement before the case goes to trial. However unlikely, there may be some surprises during mediation in the upcoming months. Tim Cook, Apple’s current CEO,  that he “always hated litigation” and that Apple “just want[s] people to invent their own stuff.” While the statement points towards a willingness to settle with Samsung and move on, it is a very different mindset from the one that Steve Jobs had prior to his death. In Jobs’ , author Walter Isaacson revealed that the co-founder had the intention of  In recent years,  ���Ի��� have both been legally at-odds with Apple over the manufacture and distribution of Android-based mobile devices. As Samsung has recently become the  and creates Android-based devices, one begins to wonder if Apple’s intentions in these lawsuits are more far-reaching than to solely prevent others from profiting from Apple’s designs. This thought has crossed the mind of Google executive David Drummond, that Apple, among other companies, is attempting to litigate Google out of the wireless market rather than innovate better products.

Looking at the Samsung Galaxy side-by-side with the Apple iPhone, there are a number of definite resemblances in both hardware and software. (See picture ���ڴǰ� reference.) Surely, Apple has every right to ensure that their patents are not infringed upon by others; However, Samsung does have some strong arguments – is it fair for Apple to have the ability to patent something akin to ? To an extent, with these kinds of products, there is only so much a designer can potentially do – the question the courts will have to look at is whether Samsung used product similarities to confuse consumers.

As was mentioned earlier, this case is of particular note for the reason that Samsung is one of Apple’s , which are used across a variety of Apple products. So far, the companies have been able to keep their business dealings separate from the lawsuit – a business deal that is . The relationship between the two companies and the recent batch of dropped claims may be pointing towards a settlement, but their attitudes towards this legal battle say otherwise. As this case proceeds, it will be interesting to see if both companies can play nice with one another if one party ends up the clear victor in the courtroom.

Adam Del Gobbo is a JD Candidate at Osgoode Hall Law School.

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[IP Osgoode:  We have previously reported on this story in the , but thought it worthwhile to include another perspective from this exchange student whose home institution is in the Netherlands, where some of the patent litigation is being fought.]

Known as ‘, Samsung and Apple are currently engaged in a so-called global patent war. The two companies, as their moniker suggests, are both significant producers of smart phones with world-wide as of July of 2011.

The phrase patent war denotes world-wide hostilities, which consisted of , and it is predicted that this number will only grow in the future. Because of their leading positions in the field of smart phones the judgments are predicted to be of great consequence to how countries deal with related patents, as well as how other companies will approach later, alleged infringements.

One interesting case with regards to this patent war is the recently decided case of in The Netherlands concerning the prohibition of the Samsung Galaxy smartphones S, S II and Ace. As the , this case was of pivotal nature. Apple claimed that Samsung was infringing on 3 of their patents. In the end the court ruled that Samsung was infringing on only one of the patents (EP 2.058.868) of Apple, and prohibited the sale of the Samsung Galaxy smartphones Galaxy S, S II and Ace from 13 October 2011 onwards. However, Samsung was able to prevent the ban of the sale of the smartphones in question by ‘a simple software’ update.

that this patent-battle is damaging the consumers, and are of the school of thought that patents should stimulate inventions, rather than holding back on readily available techniques and innovations. However, may effectively prevent other businesses from . In another recent Dutch court proceeding, Samsung filed a case against Apple stating that based on their infringement of Samsung-held patents, the iPhone and iPad should be banned. Before the case could proceed however, that Samsung had neglected to comply with the FRAND terms. Samsung, as a holder of standards-essential patents, is obligated under these terms to make licenses available to others in the industry. FRAND, an acronym for Fair, Reasonable And Non-discriminatory is a commonly used criterion in Europe (source). is to prevent a monopoly (‘fair’), as the holder of the standards-essential patents has to offer the license for the use of the patents for an acceptable price (reasonable), equivalently to others (including competing companies such as Apple). In the USA similar norms apply,, although FRAND can be used as well, while their use in Canada seems to be more uncommon.

Furthermore, due to the use of these FRAND terms that the power balance – the patentee was previously literally holding all the cards, -- is shifting, namely favorably towards the licensee. that may not be the case, and that such a supposed shift may even be highly undesirable. In conclusion, the existence of the FRAND terms may prove to be significant to the outcomes of future cases between Apple and Samsung as , while the same does not apply to Apple.

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At the last count, between Apple and Samsung in relation to infringements of wireless and tablet computer technology had reached 21. This world-spanning legal battle between two of the tech industry’s titans has been a regular news item for the past few months and figures to continue as such for the foreseeable future. As , this case stands out as it has become increasingly complex.

To add some context, back in April, claiming that the Korean-based company’s Galaxy Tab tablet computer, among other products, infringes the patented design of its ever-popular iPhone and iPad 2 products. Apple claimed that the tablet computer infringes 10 patents it holds, including “selective rejection” touchscreen technology. This technology works to ensure that accidental touches to the device do not result in programs being launched.

Apple achieved key victories early on. At the Regional court of Dusseldorf in Germany, a and the court supported Apple’s claims of patent infringement. As a result, Samsung had been barred from selling the Galaxy Tab 10.1 in Europe (not including The Netherlands, where a separate lawsuit by Apple has been filed). Although a portion of the injunction was temporarily reversed, a Dutch court in The Hague imposed an EU-wide ban on the sale of Samsung’s Galaxy smartphone line.

The most recent victory for Apple came in Australia on October 13, 2011. Apple was , preventing Samsung from selling the Galaxy Tab 10.1 until the legal proceedings between these two companies are resolved. This has effectively delayed the launch of the Samsung product in Australia, which had been scheduled for the end of September 2011. As the decision regarding the preliminary injunction filed by Apple in the United States gets closer, Florian Mueller that a victory in California for Apple may be the tipping point. As Apple’s case keeps gaining momentum, Samsung may decide a settlement is an appropriate course of action to protect the viability of its valuable product line.

However, Samsung does not appear ready to give up just yet as it has ongoing countersuits against the iPhone and iPad. Filed in France and the Netherlands, Samsung claimed that the iPhone and iPad infringe three patents it owns for 3G data (3G is the third generation of standards relating to mobile phones and telecommunication services). This strategy is primarily aiming to hit Apple where it matters most – the iPhone. As Apple managed to sell 4 million of its recently released iPhone 4S model it was available, any legal setbacks may prompt Apple to back off in its battle against Samsung.

Any optimism on the part of Samsung on this front may have been squashed already. Just last week, a that Apple should not be able to sell devices that use the 3G technology it patented. Finding that 3G is the current industry standard, the court ruled that Samsung was obligated to offer Apple licenses to use the technology under “fair, reasonable and non-discriminatory terms”. Until it does so, Samsung cannot file a fresh patent injunction request.

The injunctions could not have come at a worse time for Samsung. Its Galaxy Tab had been praised as a to the market-dominating iPad and the it runs began to take a bite out of Apple’s market share. These days, it appears that every Tom, Dick and Harry is entering the market with their own version of the tablet computer, but none have even come close to usurping Apple’s stranglehold on consumers. Unless Samsung can mount a successful defence against Apple, the iPad and iPhone may continue to be the dominant forces in the consumer technology industry without rival.

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