Edible Apple

Apple’s patent litigation with Samsung grows more complex by the week as new lawsuits are continually being filed in countries all over the world. Without missing a beat, any time Apple files suit against Samsung in a specific court, Samsung fires back with its own counter-suit.

In doing so, however, Samsung may be trying to sow confusion over different kinds of patents.

The Wall Street Journal reports on a Samsung tactic which we ourselves highlighted not too long ago.

Whereas the patents asserted by Apple against Samsung are completely owned by Apple and unencumbered by any outside obligations and restrictions, many of the patents asserted by Samsung involve technologies that are part of established technological standards.

The significance of that is as follows: When a standards setting organization decides to set a standard for the industry – whether it be for wireless internet, video codecs, or in this case wireless mobile technology – companies can submit their own patents/technologies in an effort to have them be an indispensable part of an agreed upon standard.

In exchange for including a company’s technology in a industry-wide standard, any patents involved in a standard cannot be withheld from competitors and must be licensed out to friends and foes alike on reasonable and non-discriminatory terms, otherwise known as Frand terms.

Florian Mueller, a German consultant who runs the FOSS Patents blog about software-patent disputes, said Samsung appears to be counting on the prospect that courts in different countries will approach the Frand issue differently.

“It’s all about them really not having the depth and strength to say ‘Here are three or four killer patents and we’ll use them and scare the daylights out of Apple.’ They don’t seem to have that,” Mr. Mueller said. “So what they try to do with Frand and by going all around the globe is to create a minimum level of legal uncertainty for Apple in the hopes they will settle.”

…

“While having patents that are standards-based is great because you get revenue, you can’t control what competitors do with them,” said Jonathan Radcliffe, an intellectual-property attorney at Mayer Brown in London. “The really powerful intellectual-property rights are the patents that are not part of standards.”

Touching on this very issue, Apple here explains why Samsung’s counterclaims should be dismissed:

Samsung has improperly used patents that it claims to be essential to the Universal Mobile Telecommunications Standard (’UMTS’) in an attempt to disadvantage Apple.

Samsung has abusively asserted patents in this action that it claims are standards-essential to further its strategy of copying Apple products. Apple has repeatedly demanded that Samsung put a halt to its persistent pattern of copying. In retaliation, and to deflect from its own copying and to pressure Apple to allow Samsung to continue to imitate, Samsung asserted counterclaims alleging that Apple infringes Samsung patents that are purportedly essential to the UMTS standard.

Further, Apple alleges that Samsung purposefully failed to disclose a number of its patents which were later incorporated into technological standards. For what it’s worth, Samsung, in it’s response, doesn’t outright deny this but rather claims that Apple needs to show specific evidence to support its claim – and to be clear, Apple does just this.

In fact, in some cases, a named inventor on the application for the concealed patent or other Samsung personnel participated in the relevant working group, championed Samsung’s technical proposal, and affirmatively steered the SSO to standardize technology that Samsung now claims to be covered by its patents. Samsung disclosed certain of its IPR only after the relevant standard or standard specification was finalized.

That’s some shady stuff, and with pending lawsuits on the docket across multiple continents and in 19 countries, we’ll have no shortage of new developments between this legal battle of two tech behemoths.

via WSJ