Recent months have seen a flurry of patent litigation by two smartphone rivals, Apple and Samsung. The firms are engaged in full scale legal war, each suing the other for a number of patent infringements in the USA, South Korea, Japan, the UK, Netherlands and Germany, heralding mixed decisions in the courts.

The claim in the US

In the US, Apple sued Samsung, arguing that it infringed three patents relating to the software of the phone – the ‘bounceback’ function (that informs a user that they have reached the end of a list or document); ‘pinch to zoom’; ‘tap to zoom’ and various functions that enable single finger scrolling.

Apple also alleged design patent infringement, similar to the UK/Community Registered Design concept, alleging that Samsung copied the physical design of the iPhone 3G, including the front surface design, home button and rounded corners. They also argued that Samsung diluted its ‘registered and unregistered trade dress’, similar to a UK action of ‘passing off’, for its distinctive features.

Samsung counterclaimed for patent infringement relating to a number of functions, such as its 3G HSUPA technology, the ability to play music in the background, switching between display modes in the gallery function and greater efficiency in transferring data packets.

What did the US court hold?

The US court, in a jury trial, held that Samsung had infringed some, but not all, patents, thereby awarding Apple US $1bn instead of the claimed US$2.7bn. The patents held to have been infringed include pinch and tap to zoom, the iPhone front, round corners, the home screen and the general appearance of the iPhone and various Samsung models. Significantly, Apple’s products were also deemed not to have infringed Samsung’s patent counter-claims.

Of particular interest, however, is the fact that the Samsung Galaxy Tab was held not to infringe the iPad design. This is in line with the UK decision, following a claim by Apple on its Community Registered Design, where the judge found that the overall impression of the product was enough to displace the similarities between the tablets. He noted the simplicity of the Apple design and the thinner design of the Samsung Galaxy, as well as variations in designs on the back.

Korean claim

Meanwhile, a legal battle in South Korea, this time launched by Samsung against Apple found that both companies had infringed various patents – the Apple ‘bounceback’ patent by Samsung and Samsung’s ‘efficient transfer of data packets’ by Apple.  The South Korean court appears less faithful to its industry nationals – imposing a limited ban of national sales affecting both Apple and Samsung on iPhone models and iPads, Galaxy models and the Galaxy Tab. However, the Seoul court supported Samsung in declaring that there was no design infringement of the iPhone, noting that similarities such as rounded corners and large screens were used in previous products. That said, the damages awarded were in the tens of thousands of pounds, rather than US$1bn US award.

Japan

In Tokyo, Apple lost in yet another claim against Samsung, this time in a patent in relation to the technology that enables media players to sync with personal computers. The Japanese court held that there was no patent violation.

Where’s the next battleground?

The most recent battle in the Apple/Samsung war is the possibility of Samsung suing Apple in Korea, this time regarding the use of 4G Long Term Evolution (LTE) in the iPhone 5, to be launched in the next few days. It remains to be seen whether there will be a similar outcome to the previous US litigation i.e. where Samsung alleged Apple infringement of 3G technologies, only to be held itself in breach of failing to license these ‘essential patents’ to others on ‘fair, reasonable and non-discriminatory’ terms.

Patent Patriotism

It appears therefore that there is to some extent an element of ‘Patent Patriotism’. States seek to protect their own players at the expense of international competition. Following the US trial, the jury received criticism in the press on the grounds of inherent bias in favour of Apple – they were a Californian jury with a specialist in the field leading the jury. They have since then publicly defended their decision based on technological reasoning related to the operation of Samsung hardware and software, looking at how the design and functionality of the Samsung products has change following the release of the iPhone 3G. However, whilst some may level a criticism of ‘Patent Patriotism’, it should be noted that there are significant distinction between intellectual property protection afforded in different territories. As such, the differences in outcome represent the variable legal landscapes in each jurisdiction.

What now and what are the implications for the mobile sector?

Samsung may seek to challenge the decision made by the jury in the US on grounds that the jury’s decision was not a reasonable conclusion in the circumstances. In contrast, patent infringements in the UK are heard by specialist judges in the Patent Court who use their expertise to decide matters of fact and law (rather than by jury).

Much of the successful challenge against Samsung has been against its Android operating system (OS) rather than its hardware. This may have adverse repercussions for the Google’s OS. It comes as no surprise therefore that it is rumoured that Google and Apple senior executives have been in recent talks to discuss commercial alternatives to litigation. This could prove a persuasive catalyst in swaying the decision of manufacturers to employ the growing popularity of the Microsoft Windows OS to avoid potential involvement in expensive legal battles.

With the exception of the US, however, the judge’s comments in the Korean litigation are poignant: “Given that it’s very limited to make big design changes in touchscreen based mobile products in general…and the defendant [Samsung] differentiated its products with three buttons in the front and adopted different designs in the camera and [on the] side, the two products have a different look.”