iPhone 5 ban over 4G/LTE standard-essential patents
Many readers will have followed the recent U.S. patent litigation court battle between Apple and Samsung that resulted in an Apple victory. Samsung was ordered to pay Apple over one billion dollars and Apple also moved to try to ban sales of some Samsung products. Samsung is set to appeal the verdict and in the meantime Apple begun attempts to ban sales of even more Samsung products including its flagship Samsung Galaxy S3 and Galaxy Note. However we recently told how Samsung is planning to fight back against Apple with action if Apple comes up with a 4G LTE iPhone 5 as expected and today we want to look at the possibility of an iPhone 5 ban over 4G LTE standard-essential patents.
Just a few days ago we told readers of the planned intensification of the current legal wrangles between Samsung and Apple as Samsung seems determined to stand its ground and even step up the battle. We told how Samsung currently holds 10% of 4G LTE connectivity patents and is now planning a counterstrike against Apple if the company ‘dares’ to introduce 4G LTE to the next iPhone, expected to be announced this month. It plans to be an intriguing next few weeks ahead then until the iPhone 5 is unveiled and Samsung knows whether it will move on the offensive. In the meantime an article on Foss Patents looks into areas where Samsung could possibly succeed in getting the iPhone 5 banned over 4G LTE patents and points out that it would seem like a truly uphill battle to satisfy every requirement necessary to do this.
The article points out that it will not be enough for Samsung to continue on the defensive against Apple as this merely “delays the inevitable” and that Samsung needs to come up with an offensive such as “enforceable injunctions over impactful non-standard-essential patents.” So far Samsung has been fighting its case/cases with standard-essential patents and has had no success with this, a case in point being last year when it tried to hit Apple with 3G patent assertions against the iPhone 4S. Foss Patents therefore advises against Samsung attempting the use of 4G LTE-essential patents against the iPhone 5 as antitrust regulators could take a dim view of this and instead advises that rather than injunctions Samsung could more reasonably fight for FRAND royalties over SEP’s.
However if Samsung really goes ahead with trying to get the iPhone 5 banned with 4G LTE standard-essential patents, does it stand any chance? Foss Patents details the requirements that this would entail and says Samsung “will have to find at least one jurisdiction of economic relevance in which it can surmount all of the following hurdles.” Those hurdles include patent exhaustion issues, contractual implications of its FRAND pledge and antitrust issues. On top of this the usual requirements for patent enforcement would also need to be established such as validity and infringement plus considering “potential claims that it failed to disclose its patents and patent applications on a timely basis.”
Foss Patents then goes on to look at the likelihood of Samsung winning such a victory in various jurisdictions and concludes that the only country where success might be likely would be in Korea but for other countries it would be a much bigger gamble. If you want to see the breakdown for various countries around the world and the likelihood of Samsung success then check out the original Foss Patent article at the earlier link. It looks into the possibilities in countries such as the U.S., Canada, France, the U.K., Spain and other European countries as well as other countries further afield such as China and Australia and basically the chances of Samsung achieving any success with an iPhone 5 ban seem slim to say the least.
Therefore if you’re looking forward to the Apple iPhone 5 becoming available then it sounds as though you should be able to sleep at night without worrying unnecessarily about the phone becoming the subject of a ban from Samsung. It will certainly be hugely interesting to watch the developments unfold over the next few weeks and see what happens if the iPhone 5 appears with 4G LTE connectivity. While you can’t really blame Samsung for attempting a counterstrike against Apple, it remains to be seen whether it will go ahead or decide to cut its losses so far.
We’re really interested to hear your thoughts on this. Maybe you’re an iPhone and Apple fan, relieved to hear that Samsung seems to have little chance of an iPhone 5 ban? Alternatively you may admire Samsung for continuing to take on Apple in the courts, seemingly against the odds? Send your comments to let us know where you stand on this controversial topic.