New developments today in the fight between Apple (NSDQ: AAPL) and Samsung over design and patent infringements in the company’s smartphones and tablets: the presiding judge in a case in Australia may issue Samsung with its first injunction in that market, on the Android-based Galaxy Tab 10.1 tablet; and the two sides duke it out in Holland over Samsung’s claim that Apple has failed to pay licensing fees for its 3G technology — a bid to get injunctions on Apple’s iPhone and iPad devices.
The legal fight between the two handset makers has been accelerating in the past several months and now threatens to disrupt device sales in nine countries, including several key markets for both companies.
Tablet wizards in Oz…
In Australia today, the judge presiding over the case there — Annabelle Bennett — said that she needed more time to evaluate the case being made by Apple against Samsung, over design and patent infringements. As a result she may grant a “brief” injunction on sales of Samsung’s Android-based Galaxy Tab 10.1 tablet.
This would be the first injunction granted in Australia against Samsung’s tablet. Up to now, Samsung has agreed to delay starting its sales until the dispute got resolved. It has already been delaying for nearly two months.
An injunction on the Galaxy Tab 10.1 would be a significant setback for Samsung, which has been working hard to paint a picture of Apple as waging a war on Samsung’s device mainly as a competitive tactic to give its iPad a cleaner run at the tablet market.
As David Catterns, Samsung’s lawyer in Australia, pointed out today, Apple didn’t seem to have any problems when Samsung had been selling only one tablet, the seven-inch version of the Galaxy Tab. Apple, he noted, only raised its voice when the bigger Tab, which competes more directly with the iPad, emerged.
“They didn’t sue before but now they’re worried,” he said (via Bloomberg). “It’s the thinness of our product that worries them.”
Samsung has already presented an “altered” version of the Tab 10.1 in Australia, which it says no longer violates the 10 patents that Apple claimed were at issue. Apple says it is still violating three of those patents.
Meanwhile, in Holland….
But if one can accuse Apple of playing a legal game to delay competition, Samsung may be no more innocent in that respect. The company is currently suing Apple in several markets claiming that Apple is violating technology patents concerning areas like 3G technology, and is also requesting injunctions on the products in question, which include the iPad and iPhone.
One of those cases had a day in court today, in The Hague in Holland, where the two sides met to argue their cases for how much Apple is and should be paying Samsung to license patents for technology, under the so-called FRAND (Fair, Reasonable And Non-Discriminatory) terms.
Some revealing gems came out of the meeting today, which underscore a real sense of acrimony between the two sides. These come courtesy of the Dutch journalist Andreas Udo de Haes, editor of Webwereld, who was tweeting live from the courtroom:
— Samsung claims that Apple has been selling iPhones since 2008 in Holland (when it launched the iPhone in that market) without paying certain 3G patent licenses, which Samsung says it offers under FRAND terms.
— Apple says it does pay, not to Samsung — but to Intel/Infineon (which presumably incorporates some of Samsung’s technology).
— Samsung claims that Apple has caused problems by obscuring who its component suppliers are. Apple claims that Samsung only started to talk about licenses in 2010.
— Samsung says Apple has delayed FRAND negotiations because it refuses to sign NDAs. Apple claims that it has already entered into a FRAND negotiation, which is as good as an agreement to pay once the terms have been decided: “Not an invitation, but an obligation,”as described by the lawyers. (Hence no right to sue Apple based on this not yet being decided; and injunctions are premature.)
— Apple accuses Samsung of “Patent Ambush” by withholding its patent rights until its technology becomes part of a standard (which then means mass payments). Samsung denies this, and says that Samsung is claiming different patents in different markets.
— Apple, in the words of De Haes, describes Samsung’s injunction attempts as a “blackmail scheme to extort Apple.” Samsung’s royalty requests on patents are “outrageous”: “We have made a clear and complete offer.”
– Samsung, according to Apple, is demanding 2.4 percent of the price of each chip to be paid in royalties. Considering that Samsung supplied Apple with $5.7 billion in components last year alone (although that figure would include more than just chips) that could mean a hefty royalty payment.
The case in Holland is significant not only for the ramifications for injunctions in Europe, but also, because, as De Haes points out, FRAND is also one of the issues in the case between Samsung and Apple in the U.S.