By Kim Yoo-chul
A leading intellectual property expert said Wednesday that Samsung Electronics and Apple are unikely to reach a compromise at the upcoming court-requested high-level mediation talks because of an "anti-cloning provision."
"Apple's insistence on an anti-cloning provision is probably going to be a key issue. Financial terms will be another one. I don't doubt both parties' intention to work out a deal, but they may be too far apart at this point," said German-based patent expert Florian Mueller in an e-mail interview.
A recent court filing confirmed that Apple is demanding that any potential patent-litigation settlement with Samsung includes an anti-cloning provision. Samsung's mobile boss Shin Jong-kyun plans to meet Apple CEO Tim Cook within the next month for talks.
Samsung Electronics is still eager to enter a comprehensive cross-licensing deal with Apple, allowing Samsung to access all of Apple's design and non-design patents. Samsung has so far preferred to resolve intellectual property issues through licensing.
B.J. Watrous, Apple's chief intellectual property counsel, said in a filing late last week with the U.S. District Court for Northern California that such a provision would prohibit future Samsung products from copying the design of Apple's mobile devices.
Mueller said the ongoing dispute with Samsung Electronics, the world's biggest smartphone manufacturer, is of far greater strategic importance to Apple.
"And that fact doesn't make it easy to reach an agreement. If Samsung is unwilling to sign, it's probably because Apple is asking for concessions that Samsung believes aren't justified by the leverage Apple actually has in court at this stage," the leading expert answered.
Taiwan's HTC, which is also a member of "Google Alliance" in the disputes, has previously accepted the provision to end the legal battle. "HTC was a low-priority rival for Apple because of its diminishing market share," Mueller said.
Samsung is currently in the phase of "judgment as a matter of law (JMOL)" with presiding Judge Lucy H. Koh after it is ordered to pay almost $1 billion to Apple.
This coming March, the two consumer electronics titans will head back to court in California over a dispute involving a different set of patents, including some that involve Samsung's flagship Galaxy S3 smartphone. Koh will preside over that trial , too.
In a question of what could be needed for Samsung to get a favorable offer from Apple before reaching an agreement, the expert said; "There are two scenarios in which Samsung can get a favorable deal. It either needs to gain leverage over Apple from its own lawsuits or it has to keep defending itself vigorously against Apple's claims for some more time and get some key Apple patents declared invalid in major markets like the U.S. and Germany."
Mueller stressed Apple is now relying on potentially-stronger patents that are more technical and less design-oriented, which means Samsung is being strategically situated.
"If Samsung could prove that Apple infringes one or more of its non-standard-essential patents, that would be a significant breakthrough," he responded to The Korea Times.
A previous decision by Samsung for a settlement with Microsoft over patents disputes in 2011 could be a positive factor in two ways, according to the expert.
"One, Samsung does not have to fight on yet another front — Apple, Ericsson and various U.S. patent trolls are enough to keep a legal department busy. Two, it shows that Samsung is, in principle, willing to resolve intellectual property issues through licensing."
In the handset business, Samsung rose to the global top and it also added up its brand recognition by leading consultancies. But it is still facing challenges in intellectual properties, though values of patents are differed by many.
Mueller said Samsung's primary challenge is to prevail on some non-standard essential patents at some point because those are unencumbered by FRAND licensing obligations and can give Samsung more leverage.
According to his observation, Samsung has fared well in disputes.
"Samsung has proven amazing defensive strengths: it has shot down some key Apple patents, especially but not only in Germany; it has avoided infringement findings over some others; and to the extent that Apple won injunctions, Samsung has time and time again found ways to work around them without losing market share anywhere," he observed.
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| Florian Mueller |
"Apple's insistence on an anti-cloning provision is probably going to be a key issue. Financial terms will be another one. I don't doubt both parties' intention to work out a deal, but they may be too far apart at this point," said German-based patent expert Florian Mueller in an e-mail interview.
A recent court filing confirmed that Apple is demanding that any potential patent-litigation settlement with Samsung includes an anti-cloning provision. Samsung's mobile boss Shin Jong-kyun plans to meet Apple CEO Tim Cook within the next month for talks.
Samsung Electronics is still eager to enter a comprehensive cross-licensing deal with Apple, allowing Samsung to access all of Apple's design and non-design patents. Samsung has so far preferred to resolve intellectual property issues through licensing.
B.J. Watrous, Apple's chief intellectual property counsel, said in a filing late last week with the U.S. District Court for Northern California that such a provision would prohibit future Samsung products from copying the design of Apple's mobile devices.
Mueller said the ongoing dispute with Samsung Electronics, the world's biggest smartphone manufacturer, is of far greater strategic importance to Apple.
"And that fact doesn't make it easy to reach an agreement. If Samsung is unwilling to sign, it's probably because Apple is asking for concessions that Samsung believes aren't justified by the leverage Apple actually has in court at this stage," the leading expert answered.
Taiwan's HTC, which is also a member of "Google Alliance" in the disputes, has previously accepted the provision to end the legal battle. "HTC was a low-priority rival for Apple because of its diminishing market share," Mueller said.
Samsung is currently in the phase of "judgment as a matter of law (JMOL)" with presiding Judge Lucy H. Koh after it is ordered to pay almost $1 billion to Apple.
This coming March, the two consumer electronics titans will head back to court in California over a dispute involving a different set of patents, including some that involve Samsung's flagship Galaxy S3 smartphone. Koh will preside over that trial , too.
In a question of what could be needed for Samsung to get a favorable offer from Apple before reaching an agreement, the expert said; "There are two scenarios in which Samsung can get a favorable deal. It either needs to gain leverage over Apple from its own lawsuits or it has to keep defending itself vigorously against Apple's claims for some more time and get some key Apple patents declared invalid in major markets like the U.S. and Germany."
Mueller stressed Apple is now relying on potentially-stronger patents that are more technical and less design-oriented, which means Samsung is being strategically situated.
"If Samsung could prove that Apple infringes one or more of its non-standard-essential patents, that would be a significant breakthrough," he responded to The Korea Times.
A previous decision by Samsung for a settlement with Microsoft over patents disputes in 2011 could be a positive factor in two ways, according to the expert.
"One, Samsung does not have to fight on yet another front — Apple, Ericsson and various U.S. patent trolls are enough to keep a legal department busy. Two, it shows that Samsung is, in principle, willing to resolve intellectual property issues through licensing."
In the handset business, Samsung rose to the global top and it also added up its brand recognition by leading consultancies. But it is still facing challenges in intellectual properties, though values of patents are differed by many.
Mueller said Samsung's primary challenge is to prevail on some non-standard essential patents at some point because those are unencumbered by FRAND licensing obligations and can give Samsung more leverage.
According to his observation, Samsung has fared well in disputes.
"Samsung has proven amazing defensive strengths: it has shot down some key Apple patents, especially but not only in Germany; it has avoided infringement findings over some others; and to the extent that Apple won injunctions, Samsung has time and time again found ways to work around them without losing market share anywhere," he observed.
