Samsung Throws an Elbow at Apple on Walk to Negotiating Table
Not 48 hours after a California judge sent Samsung and Apple to the bargaining table to try to settle one of their many patent lawsuits -- a meeting the CEOs of both companies are expected to attend -- Samsung has hit Apple with a new round of patent counterclaims. The counterclaims relate to a different case, also in California, but they could affect the outcome of the settlement negotiations.
Just as it appeared that there would be a truce in the patent war between Samsung and Apple, Samsung fired another salvo at Apple.
In a filing in the federal district court for Northern California, Samsung claimed Apple infringed on eight of its patents.
Samsung's action was a counterclaim filed in response to a lawsuit filed by Apple in February. Apple's lawsuit charges that Samsung's Galaxy Nexus smartphone uses software, Android 4.0 (Ice Cream Sandwich) that violates four Apple patents.
In Samsung's counterclaim, it alleges that a host of Apple products step on eight of the Korean company's patents that relate to the "reliability, capacity, efficiency, compatibility and functioning of mobile devices."
The legal move by Samsung came less than 48 hours after it and Apple were ordered to sit down and settle their differences out of court in another patent lawsuit filed in April 2010 against the Korean company by the maker of iPhones and iPads.
Pass the Ammunition
Samsung's action on Wednesday was dictated by legal necessity, according to Florian Mueller, an intellectual property activist-turned-analyst and author of the FOSS Patents blog.
"Samsung simply had a deadline to meet for its answer to Apple's [February] complaint," he told MacNewsWorld. "Counterclaims are usually brought when responding to a complaint."
Nevertheless, the counterclaims are sending a message to Apple too, he continued.
"Samsung wants to demonstrate that it won't give up easily," he said. "By asserting three recently acquired patents as part of these counterclaims, Samsung shows to Apple that it keeps buying ammunition."
Three of the eight patents cited in the counterclaim were purchased by Samsung.
The counterclaims could play a role in the haggling that's expected to take place when the CEOs of Apple and Samsung sit at the negotiating table, as ordered by Judge Lucy Koh.
"It will give Samsung more leverage going into the negotiations," David Mixon, an attorney with Bradley Arant Boult Cummings, told MacNewsWorld.
"Samsung is showing that it has the capability to fight back against Apple should these lawsuits go to trial," he continued.
"I don't see it as something to sabotage the mediations or negotiations that are going on, although that could be an unintended consequence of it," he said.
The counterclaims will be another bargaining chip when Apple and Samsung sit down at the negotiating table, according to Adam L.K. Philipp, an attorney with Aeon Law.
"If you're going to get the two CEOs to horse trade and figure out what's going to be a good settlement, you want all your cards on the table," he told MacWorldNews.
The counterclaims will be among the chips played by the CEOs when working out a final settlement, he explained -- chips that will include patent infringement claims, licenses to items in their IP portfolios, business deals and exclusivity contracts.
At the end of the process, he maintained, "They're going to come up with some type of settlement and business understanding that's going to allow them both to go forward without having appeared to have 'lost.'"
"I would predict that there's going to be some burying of the hatchet and an announcement of some great, new partnership initiatives," he added.
Not So FRANDly
While the counterclaims may be a bargaining chip in the United States, they could be an an anchor in Europe. That's because among the patents cited in them are two FRAND patents.
FRAND (Fair, Reasonable And Non-discriminatory) patents are for technologies deemed essential for an industry to develop -- in this case, the mobile industry in Europe.
Samsung has an agreement with the European Telecommunications Standard Institute (ETSI) to license any patents essential to European telephony on a FRAND basis.
The European Union opened an investigation in January into possible abuses by Samsung of its FRAND patents.
"It could hurt them Europe," opined Mixon. "Any time you have patents that deal with standards, either imposed by the government or an industry group, that's always a very sensitive political issue."
Using FRAND patents to build its case against Apple in the United States could build the anti-trust case against Samsung in Europe, according Mueller.
"Samsung has demonstrated that it believes it has the right to seek injunctions against Apple's products based on standard-essential patents, a kind of conduct that I think it should refrain from," he declared. "Samsung should keep clear of antitrust trouble."