APPLE vs.

SAMSUNG: SMARTPHONE PATENT WAR,

PRACTICAL IMPLICATIONS AND REPERCUSSIONS OF
SAMSUNG VERDICT WITHIN THE SMARTPHONE
INDUSTRY

Jessica H. Bui, Esq.
1


I. INTRODUCTION

The smartphone industry today is characterized by a thicket of patents and an ongoing
business battle by every major smartphone manufacturer in which patents are used as leverage
against competitors to secure or increase their respective market shares while slowing
competitors progress.
2
The conflict is part of the larger patent wars between technology and
software multinational corporations based in the United States, Canada, Europe, Japan, Korea,
Taiwan and China. The companies involved include Apple, HTC, Microsoft, Motorola Mobility,
Nokia, Research in Motion (RIM), and Samsung.

The current smartphone wars started in the late 2000s in part because of a long-running
feud between Apple, the worlds largest technology company by market capitalization, and
Google regarding Googles competing Android mobile operating system (OS) and Android
phones when Google jumped into the smartphone market while former Google CEO Eric
Schmidt was on Apples Board of Director from 2006-2009, and in part because of the success
of Google Android as the dominant operating system (OS) in the global smartphone market
relative to Apples own operating system (iOS).
3
The late Steve Jobs, co-founder and former

1
Jessica H. Bui, Esq. is a Patent Attorney at Bui Garcia-Zamor, an Intellectual Property law firm
located in Washington D.C. (see www.buigarcia.com). Ms. Bui received a BS in General Biological
Science with emphasis in Genetics from the University of Maryland, a MS in Biotechnology from John
Hopkins University, and a JD from the University of Baltimore. Copyright January 10, 2013 Bui
Garcia-Zamor. The views expressed in this paper are personal to the author alone.
2
Michael A. Carrier, A Roadmap to the Smartphone Patent Wars and FRAND Licensing, CPI
ANTITRUST CHRON., Apr. 2012, (http:papers.ssrn.com/sol3/papers.cfm?abstract_id=2050743).
3
Apple had an early advantage in the smartphone market because of lead-time and network effects.
Apple encouraged independent software developers to produce apps that could run on Apples iOS
system. The availability of these apps became a major feature driving consumers to purchase Apples
iPhones. None of the competing smartphone manufacturers had sufficient market penetration to attract
similar app development, until Google introduced the Android operating system. Google widely licensed
the Android software to a number of smartphone manufacturers, including Samsung (for free). The
emergence of Android enabled other manufacturers to compete with Apples iPhones. By mid-2011,
Android phones were outselling iPhones more than 2-to-1. See IDC, Android and iOS Surge to New
Smartphone OS Record in Second Quarter (Aug. 8, 2012),
http://www.idc.com/getdoc.jsp?containerID=prUS23638712 (last visited Oct. 21, 2012) (reporting Q2
2011 shipments of 50.8 million Android phones and 20.4 million iOS phones). By the middle of 2012,
however, the gap has widened; four Android phones were being sold for each iPhone. See id. (reporting
1

chairman and CEO of Apple, referred to Googles Android phone concept as a stolen product.
In the Steven Jobs
4
biography by Walter Issacson, Jobs promised thermonuclear war against
what he saw as Androids systematic copying of Apple features.

However, Apple has not attacked Google head on;
5
rather, Apple fired off a series of
lawsuits against Google-Android partners and smartphone manufacturers in part because these
smartphone manufacturers actually generate revenue and profit from those Android phones
whereas Google gives the Android operating system (OS) away for free and generates revenue
only indirectly through mobile advertising. For example, in March 2010, Apple first sued
Google-Android partner HTC for patent infringement of iPhones features including iOS user
interface, underlying architecture and hardware in the U.S. District Court for the District of
Delaware and the International Trade Commission (ITC).
6
The conflict with HTC mushroomed
into 10 different lawsuits in various jurisdictions in the United States, United Kingdom and
Germany, and eventually settled in November 2012.
7
Similarly, in October 2010, Apple also
filed lawsuits against Motorola Mobility over six multi-touch OS patents that make up much of
the signature touch-screen inventions of the iPhones.
8


In April 2011, Apple then sued Google leading Android partner, Samsung for patent
infringement of user interface and design features of iPhones and iPads in the U.S. District Court
for the Northern District of California.
9
However, unlike HTC, Samsung is the worlds largest

Q2 2012 shipments of 104.8 million Android phones and 26.0 million iOS phones). At the time of the
trial, Samsung was the leading producer of Android phones. See id. (Androids success in the market
can be traced directly to Samsung, which accounted for 44% of all Android phones shipped worldwide in
the 2
nd
quarter of 2012 and totaled more than all other Android vendors volumes combined.)
4
Steve Jobs is the authorized biography of Steve Jobs, written by Walter Issacson. The book
was released on October 24, 2011 by Simon & Schuster in the United States.
5
In its ongoing effort to build up its patent portfolio and defend Android operating system (OS)
against patent infringement lawsuits, Google purchased Motorola Mobility on August 15, 2011 for $12.5
billion, primarily for its 17,000 patent portfolio. According to Google CEO Larry Page, the acquisition
of Motorola will increase competition by strengthening Googles patent portfolio, which will enable
[Google] to better protect Android from anti-competitive threats from Microsoft, Apple and other
companies... In addition to Motorola Mobility, Google has also stockpiled patents from IBM and other
companies in late 2011.
6
Apple v. HTC, C.A. Nos. 10-166-GMS, 10-167-GMS, U.S. Dist. Ct., D. Del., 2011-1-14.
Retrieved 2 July 2012; and Apple's ITC complaint against HTC, 75 Fed. Reg. 17434, 2010-4-6.
7
Mullin, Joe, Apple and HTC reach a sudden patent peace, but at what cost?, ArsTechnica,
arstechnica.com, 2012-11-11. Retrieved 21 December 2012.
8
Motorola Mobility, Inc. v. Apple Inc., In the Matter of Certain Wireless Communication Devices,
Portable Music and Data Processing Devices, Computers and Components Thereof, ITC Inv. No. 337-
TA-745, 2010-10-6; Motorola Mobility, Inc. v. Apple Inc. and NeXT Software, Inc., U.S. Dist. Ct., Dist.
Del., 2010-10-8; Apple Inc. v. Motorola, Inc. and Motorola Mobility, Inc., U.S. Dist. Ct., W.Dist. Wisc.,
2010-10-29; In the Matter of Certain Mobile Devices and Related Software, ITC Inv. No. 337-TA-750,
2010-10-29; Apple v. Motorola, 337-TA-750, 2012-3-16; Apple, Inc. and Apple Sales International v.
Motorola Mobility, Inc., case 12CV0355 JLS BLM, U.S. Dist. Ct., S.D. Cal., 2012-2-10.
9
Apple Inc., v. Samsung Elecs. Co., No. 11-CV-01846-LHK, 2012 WL 3627731 (N.D. Cal. Aug.
21, 2012).
2

technology company by revenues from 2009 to 2012,
10
and also the worlds largest maker of
smartphones supporting Google Android as the primary operating system (OS). Samsung is also
no stranger to patent lawsuits and innovation, having one of the largest patent portfolios in the
United States and the World.
11
The legal battle between Apple and Samsung is particularly
intriguing because Apple and Samsung have worked closely together for many years. Samsung
has been one of Apples largest suppliers of components such as memory chips and components
for all Apples products including iPhones and iPads, and Apple one of Samsungs biggest
customers. Nevertheless, this symbiotic relationship between Apple and Samsung has not
deterred either company from competing head-on in the smartphone market, together winning
of the global market share and 90% of the profit for smartphones and tablets,
12
and now using
patents as weapons to gain market share and draw product differentiations. The legal dispute
between Apple and Samsung has mushroomed into 50 different lawsuits in 10 different
countries, including four in the U.S., 12 in Germany, one in the UK, two each in France, Italy,
the Netherlands, South Korea, and Australia, and three in Spain.

On August 24, 2012, Apple won a $1.049 billion patent-infringement verdict in a jury
trial against Samsung in the United States District Court for the Northern District of California.
The jury found that Samsung had infringed on all three Apples user interface patents (U.S.
Patent No. 7,469,481, known as Bounce-Back-Effect patent; U.S. Patent No. 7,844,915,
known as On-Screen Navigation patent; U.S. Patent No. 7,864,163, known as Tap-To-Zoom
patent), and three out of four design patents that Apple had asserted. The jury rejected
Samsungs defense that these patents were invalid. In addition, the jury found that Samsung
willful infringed five of these patents. The jury also denied all of Samsungs infringement
counterclaims.
13


This paper will focus on the lawsuits between Apple and Samsung both in the U.S. and
around the world, and explore the practical implications and repercussions of the Apple vs.
Samsung case relative to Google and other smartphone competitors within the smartphone
industry, patents and innovation, and the general public.






10
Samsung Beats HP to Pole Position, Financial Times. Retrieved 28 January 2010.
11
Samsung Electronics Co., is ranked 2
nd
in the United States for seven (7) consecutive years, from
2006-2012 (see www.uspto.gov) and has over 100,000 patents in the fields of flash memory, system LSI,
mobile phones and other major products (see Samsung Patent Report 2012).
12
See IDC, Android and iOS Surge to New Smartphone OS Record in Second Quarter (Aug. 8,
2012), http://www.idc.com/getdoc.jsp?containerID=prUS23638712 (last visited Oct. 21, 2012).
13
Lowensohn, Josh (August 24, 2012). Jury awards Apple more than $1B, finds Samsung
infringed (http://news.cnet.com/8301-13579_3-57500159-37/jury-awards-apple-more-than-$1b-finds-
samsung-infringed/). Cnet. Retrieved December 20, 2012; also see Amended Verdict Form, Apple Inc.,
v. Samsung Elecs. Co., No. 11-CV-01846-LHK (N.D. Cal. Aug. 21, 2012)
(http://cand.uscourts.gov/fileliberary/1079/Amended%20%Jury%20Verdict.pdf).
3

II. THE APPLE vs. SAMSUNG CASE
Lawsuits in the U.S.

On April 15, 2011, Apple filed a complaint in the United States District Court for the
Northern District of California alleging that several of Samsung Android phones and tablets
infringed on Apples patents and trademarks. Specifically, these products included Nexus S,
Epic 4G, Galaxy S 4G, and Samsung Galaxy Tab. In addition to patent infringement claims,
Apples complaint also included false designation of origin, unfair competition, and trademark
infringement under federal laws, as well as unfair competition, common law trademark
infringement, and unjust enrichment under state laws.
14
In its complaint, Apple alleged that
instead of pursuing independent product development, Samsung had chosen to slavishly copy
Apples innovative technology, distinctive user interfaces, and elegant and distinctive product
and packaging design, in violation of Apples valuable intellectual property rights.
15
Apple also
claimed that as of March 2011, 108 million iPhones and 19 million iPads had been sold. In
addition, Apple spent more than $2 billion in advertising its products between fiscal years 2007
to 2010.
16
Apple calculated that financial damages incurred by Apple and profits wrongly
gained by Samsung total to $2.5 billion which Apple claimed that Samsung ought to pay.
17


In response, on April 28, 2011, Samsung filed counterclaims in the Northern District of
California alleging ten counts of patent infringement against Apple

(after filing lawsuits in South
Korea, Japan, and Germany against Apple on April 21, 2011).
18
These ten counts did not include
a reply to Apples lawsuit, and thus, setting the tone that Samsung was prepared to strike back
instead of just defending itself against Apples complaint. In the complaint, Samsung stated that
from 2005 to 2010, it spent $35 billion on research and development, and obtained 28,700 US
patent, 5,933 of which are related to telecommunications, implying that they had many more
than just ten claims against Apple, and that Samsung was equally if not more inventive than
Apple in making and designing their own products.
19
Samsungs counter-attacks included

14
Apple Inc. v. Samsung Electronics Co. Ltd. et al.
(http://cand.uscourts.gov/lhk/applevsamsung). United States District Court, Northern District of
California. Retrieved December 20, 2012.
15
Wall, Michael (July 28, 2012). Apple vs. Samsung: case overview for the patent trial of the
century (http://www.brighthand.com/default.asp?newsID=19124&news=samsung+apple+lawsuit+case).
Brightland. Retrieved December 20, 2012.
16
Patel, Nilay (April 29, 2011). Samsung sues Apple for infringing 10 patents: a closer look.
(htt://www.theverge.com/2011/04/29/samunsg-sues-apple-infringing-10-patents/). The Verge. Retrieved
December 20, 2012.
17
Wall, Michael (July 28, 2012). Apple vs. Samsung: case overview for the patent trial of the
century (http://www.brighthand.com/default.asp?newsID=19124&news=samsung+apple+lawsuit+case).
Brightland. Retrieved December 20, 2012.
18
Patel, Nilay (April 22, 2011). Samsung countersues Apple in Korea, Japan, and Germany, but
not the USyet. (htt://www.theverge.com/2011/04/29/samunsg-countersues-apple-in-korea-japan-
germany/). The Verge. Retrieved December 20, 2012.
19
Patel, Nilay (April 29, 2011). Samsung sues Apple for infringing 10 patents: a closer look
(htt://www.theverge.com/2011/04/29/samunsg-sues-apple-infringing-10-patents/). The Verge. Retrieved
December 24, 2012.
4

allegation that Apple infringed its 3G wireless patents and that Apple ought to royalties of 2.4%
of all sales of devices using Samsungs iOS technology.
20


First U.S.Trial

From the time this lawsuit started on April 15, 2011 to April 2012, Apple and Samsung
continued to hurl a series of claims and counter-claims regarding infringement allegations.
However, because Judge Lucy H. Koh
21
restricted that both sides are allotted 25 hours to present
their respective cases, the issues at trial were greatly reduced.
22
Specifically, Apple alleged
Samsung of infringing on three of its utility patents (U.S. Patent Nos. 7,469,481; 7,844,915; and
7,864,163) and four design patents (U.S. Patent Nos. D504,889; D593,087; D618,677; and
D604,305). Apple also alleged that Samsung had diluted its trade dresses relating to Apple
iPhone. In response, Samsung accused Apple of infringing on five of its utility patent (U.S.
Patent Nos. 7,675,941; 7,447,516; 7,698,711; 7,577,460; and 7,456,893) and one design patent
(U.S. Patent No. D504,899), of which the design patent was at the heart of Samsungs argument.
Samsung also accused Apple of violating antitrust law by monopolizing markets related to
Universal Mobile Telecommunication System (UMTS) standard.
23


However, even with reduced claims and restricted time allotted, the first trial lasted more
than three weeks and involved many complex technical issues and massive amount of evidence.
The jurors had a daunting task of working through hundreds of pages of technical information to
determine which devices infringed or not infringed on which claims, especially when Apple
accused about two dozens of Samsung products infringing on their patents.
24



Apples Case

Throughout trial, Apple kept its story simple. Apple told just one story, which was
essentially the same from the beginning of the lawsuit: Apple invested greatly in developing and
marketing iPhones and iPads, and as the result, Apple products and designs became the

20
Macari Matt (July 30, 2012). Apple vs. Samsung: the complete guide to a billion-dollar trial
(htt://www.theverge.com/2012/07/30/apple-vs-samsung-trial-guide/). The Verge. Retrieved December 24,
2012.
21
Judge Lucy H. Koh is the first Asian American United States District Court Judge in the Northern
District of California, and the first District Court of Korean descent in the United States. Judge Koh was
nominated by President Barack Obama on January 20, 2010, confirmed by the Senate on June 7, 2010,
and received her commission on June 9, 2010. Previously, she served as an Assistant United States
Attorney and then as litigation partner at McDermott Will & Emery representing technology companies in
patent cases.
22
Id.
23
Lowensohn, Josh (August 24, 2012). Jury awards Apple more than $1B, finds Samsung
infringed (http://news.cnet.com/8301-13579_3-57500159-37/jury-awards-apple-more-than-$1b-finds-
samsung-infringed/). Cnet. Retrieved December 20, 2012.
24
Lowensohn, Josh (August 24, 2012). Jury awards Apple more than $1 billion, finds Samsung
infringed (http://news.cnet.com/8301-13579_3-57500159-37/jury-awards-apple-more-than-$1b-finds-
samsung-infringed-on-apple-patents/). CNET Online. Retrieved January 6, 2013.
5

benchmark for competitors and consumers.
25
Instead of fairly competing, Samsung copied
Apple patented products and designs. Apple asked for a $2.525 billion award for financial
damages in its trial brief. Apple claimed that it incurred lost profits of $500 million due to sales
of Samsung products that infringed on Apples patents, and a $2 billion Samsungs wrongful
profits associated with infringement on Apples patents.
26


Apple also chose to reduce its complaint to utility and design patents that are relatively
straightforward and fairly easy to understand. Specifically, the claims of U.S. Patent No.
7,469,481 are directed to Apples famous iOS Scrollback or Bounce-Back-Effect patent,
where a background texture is displayed when a user scrolls beyond the edge of a document or
webpage. As for Apples On-Screen Navigation patent, U.S. Patent No. 7,844,915, its claims
are directed to determining when a user is using one finger to scroll versus two or more fingers to
zoom. The claims of Apples Tap-To-Zoom patent, U.S. Patent No. 7,864,163, are directed to
tapping to zoom a screen on an area with multiple content areas displayed.
27
As for Apples
design patents, they are also very simple. Two of them are directed to an iPhone, one on an iPad,
and one on general iOS icon layout on a screen. However, trying to prove that about two dozens
of Samsung products, including Galaxy S, SII, Epic 4G, Captivate, Vibrant, Infuse 4G, Droid
Charge, and Galaxy Tab 10.1, infringed these utility and design patents during trial were not as
simple.
28
Apple was required to demonstrate that each of Samsungs accused products contain
elements that infringed at least one claim in Apples patents. This was definitely a simpler task.


Samsungs Case

At trial, Samsung claimed that it spent billions on research and development and had
entered the mobile market decades before Apple. Samsung also claimed that it owned thousands
of patents, some of which cover standardized technologies, such as 3G cellular networking
which Apple products infringed on. In contrast, Apple was a relatively new player in the mobile
market and used Samsungs research without paying for it. Samsung also claimed that Apple
enter the mobile market via industry-standard cross-licensing agreements instead of starting from
scratch. Samsung accused Apple of being anticompetitive for using patents to block Samsung
products instead of fairly competing in the market.
29
Samsung also argued that these patents are
not valid because their claims are too vague and broad. Samsung also asked for $421 million in
its countersuit that Apple products infringed on their patents.
30
However, Samsung was faced to

25
Macari Matt (July 30, 2012). Apple vs. Samsung: the complete guide to a billion-dollar trial
(htt://www.theverge.com/2012/07/30/apple-vs-samsung-trial-guide/). The Verge. Retrieved January 5,
2013.
26
Macari Matt (July 30, 2012). Apple vs. Samsung: the complete guide to a billion-dollar trial
(htt://www.theverge.com/2012/07/30/apple-vs-samsung-trial-guide/). The Verge. Retrieved January 5,
2013.
27
Id.
28
Lowensohn, Josh (August 24, 2012). Jury awards Apple more than $1 billion, finds Samsung
infringed (http://news.cnet.com/8301-13579_3-57500159-37/jury-awards-apple-more-than-$1b-finds-
samsung-infringed-on-apple-patents/). CNET Online. Retrieved January 6, 2013.
29
Id.
30
Id.
6

rebut Apples defense under the legal doctrine of patent exhaustion
31
which states that you only
get one bite at the apple. In other words, Apples defense was simply that Samsung was trying to
double dip on licensing fees at Apple's expense. Apple argued that the wireless baseband chips in
iPads and iPhones were purchased from companies like Qualcomm and Intel. Thus, Apple was
expected to argue that Samsung already got payment from Qualcomm and Intel for licensing the
patents that Samsung was accusing that Apple infringed on. Samsung cannot turn around and
demand payment from Apple for those same chips that Apple bought from Qualcomm and Intel.
In sum, Apples defense was that Samsung's enforceable patent rights relative to those
components are now exhausted and used up.
32
Samsung was faced with a difficult task of
rebutting this argument.

Verdict of First Trial

A nine-person-jury awarded Apple $1,049,393,540 in damages on August 24, 2012. The
jury found Samsung infringed on most of Apple patents infringement claims. The jury also
found willful infringement on five of six patents. In addition, the jury found Samsung diluted
Apples registered iPhone, iPhone 3, and combination iPhone trade dress on some products.
Although the jury found Samsung did not violate antitrust law by monopolizing markets related
to UMTS standard, it found no Apple infringement of Samsung utility patents, and thus did not
award Samsung any damages.
33
Specifically, the jury found Samsung infringed on Apples
utility patents that cover iPhones user interfaces including Bounce-Back-Effect as claimed in
U.S. Patent No. 7,469,481, On-screen Navigation U.S. Patent No. 7,844,915, and Tap-To-
Zoom U.S. Patent No. 7,864,163. The jury also found Samsung infringed on Apples design
patents that cover iPhones features the home button, rounded corners and tapered edges as
recited in the claims of U.S. D593087, and On-Screen Icons as recited in the claims of U.S.
D604305.
34


Damaging I nformation Revealed During First Trial

As often occurred in public trials, highly confidential information of both Apple and
Samsung were revealed. Evidence was introduced to show that Apple was secretly planning to
develop mini iPads. Apples highly detailed financial records were revealed far beyond what

31
Quanta Comp. v. LG Electronics, 553 U.S. 617 (2008), the U.S. Supreme Court unanimously
reaffirmed the validity of the so-called patent exhaustion (or 1
st
sale) doctrine, holding that patentees
have little or no power to restrict what a purchaser does with a product after the first sale. The Court also
noted that a patentees rights are exhausted against a buyer when the patentee sells a patented product to
the buyer, and more importantly, against parties who later buy the product from that buyer, provided that
the buyer is authorized to sell the product.
32
Macari Matt (October 31, 2011). Apple harmonizes its patent defenses against Samsung
(http://www.theverge.com/2011/10/31/2522418/apple-brings-proven-defense-strategy-to-its-u-s-case-
against-samsung). The Verge. Retrieved January 5, 2013.
33
Lowensohn, Josh (August 24, 2012). Jury awards Apple more than $1 billion, finds Samsung
infringed (http://news.cnet.com/8301-13579_3-57500159-37/jury-awards-apple-more-than-$1b-finds-
samsung-infringed-on-apple-patents/). CNET Online. Retrieved January 6, 2013.
34
Burnette, Ed (August 25, 2012). The verdict is in: Samsung vs. Apple
(http://www.zdnet.com/the-verdict-is-in-samsung-vs-apple-7000003163/). Zdnet Online. Retrieved
January 6, 2013.
7

companies typically make available to the public. As for Samsung, damaging internal
documents were uncovered revealing that Samsung conducted research on Apple devices while
designing its software icons as well as general features. The most damaging evidence was
internal reports containing side-by-side comparison of Galaxy smartphones and Apple iPhones,
and proposals of how to make the Galaxy devices even more similar to Apple devices.
35



I njunction of US Sales during First Trial

Even before the trial started, Samsung was faced with Apples motion seeking
preliminary injunction in the U.S. on July 1, 2012 to block sales of Samsung smartphones, such
as Infuse 4G and Droid Charge. Apple claimed that sales of Samsung smartphones caused
irreparable harm to Apple. However, on December 2, 2011, Judge Lucy H. Koh denied Apples
motion for preliminary injunction stating that although Apple had established a likelihood of
success at trial on the merits of Apples alleged infringement claims, Apple had not established
that it could overcome Samsungs arguments that the Apples alleged patents are valid.
36

Apple appealed Judge Kohs ruling, and won. On May 4, 2012, the U.S. Court of
Appeals for the Federal Circuit reversed the ruling and ordered Judge Koh to issue an
injunction.
37
Thus, on June 12, 2012, a preliminary injunction was granted and Samsung was
prevented from making, using, offering to sell, selling, or importing into the U.S Samsung
Galaxy Nexus and any of its technology making use of the disputed patents. At the same time,
the court ordered Apple to post a bond in the amount of $95.6 million in the event that Samsung
prevailed at trial, which Samsung did with regard to the Galaxy Nexus devices.
38
Galaxy Nexus
was found not infringing on Apples patents as a result of the trial.

On October 11, 2012 the Federal Circuit granted Samsungs motion to remove the
preliminary injunction after the first trial.
39





35
Lowensohn, Josh (August 24, 2012). Jury awards Apple more than $1 billion, finds Samsung
infringed (http://news.cnet.com/8301-13579_3-57500159-37/jury-awards-apple-more-than-$1b-finds-
samsung-infringed-on-apple-patents/). CNET Online. Retrieved January 6, 2013.
36
Levine, Dan (December 3, 2011). U.S. judge rejects Apple bid to halt Galaxy sales
(http://www.reuters.com/article/2011/12/03/us-apple-samsung-ruling-idUSTRE7B206D20111203).
Reuters. Retrieved January 5, 2013.
37
Bieneman, Charles (May 14, 2012). The Software Intellectual Property Report
(http://swipreport.com/preliminary-injunction-for-apple-in-patent-fight-against-samsung/). RSS Online.
Retrieved January 6, 2013.
38
Lowensohn, Josh (June 29, 2012). Judge Oks Apple injunction on Samsungs Nexus phone
(http://news.cnet.com/8301-1035_3-57464191-94/judge-oks-apple-injunction-on-samsungs-nexus-
phone/). CNET Online. Retrieved January 6, 2013.
39
Bartz, Diana (October 11, 2012). Update 3-U.S. court clears Samsung phone, hands Apple
setback (http://www.reuters.com/article/2012/10/11/apple-samsung-patent-
idUSL1E8LBG4G20121011). Reuters. Retrieved January 6, 2013.
8

Verdict Delivered but Trial Not Over

Apple Continues to Fight

Based on the jury verdict, Apple filed a motion for permanent injunction on August 31,
2012 seeking to ban all sales of the Samsung products cited as infringed on Apples patents.
However, this motion was denied by Judge Koh on December 17, 2012 ruling that Apple had not
proven irreparable harm.
40
In order to be eligible for injunctive relief, the prevailing party
(Apple) must show that it will suffer irreparable harm in absence of an injunction. Under the
irreparable harm doctrine, proof of the nexus between the infringement and the irreparable harm
must be established, i.e., infringement of the particular features or designs by Samsung protected
by Apple patents must have caused the loss of Apples market share. Unlike infringement and
damages, issues relating to injunctive relief are viewed as equitable issues, and thus are decided
by a judge instead of a jury.

In its motion for permanent injunction, Apple alleged three irreparable injuries: (1) loss
of market share; (2) loss of downstream and future sales; and (3) injury to Apples ecosystem. In
denying Apples motion, Judge Koh stated that although Apple had proven injuries, it failed to
prove the causal nexus between specific infringement and the irreparable harm. In fact, Apples
proof was simply too general and did not present any analysis of alleged harm on a claim-by-
claim or even a patent-by-patent analysis. Thus, Judge Koh denied injunctive relief.
41


Although this is a major victory for Samsung, Apple had the right to appeal this decision
to the Federal Circuit,
42
and then to the Supreme Court even as the district court continues to
decide additional post-verdict motions.
43


In addition to seeking permanent injunction, on September 21 and 22, 2012, Apple filed a
motion seeking an additional $707 million, alleging that was an interest amount of Apples

40
Order Denying Motion for Permanent Injunction by United States District Court Northern
District of California. (http://www.scribd.com/doc/117196813/Apple-Denied-Motion-for-Permanent-
Injunction). (December 17, 2012). Retrieved January 6, 2013.
41
Id.
42
On appeal, the Federal Circuit endorsed Kohs articulation and application of a nexus
requirement. See Apple, Inc. v. Samsung Elecs. Co., 678 F.3d 1314, 1324 (Fed. Cir. 2012) (we hold that
the district court was correct to require a showing of some causal nexus between Samsungs infringement
and the alleged harm to Apple as part of the showing of irreparable harm. To show irreparable harm, it is
necessary to show that the infringement caused harm in the first place. Sales lost to an infringing product
cannot irreparably harm a patentee if consumers buy that product for reasons other than the patented
feature. If the patented feature does not drive the demand for the product, sales would be lost even if the
offending feature were absent from the accused product. Thus, a likelihood of irreparable harm cannot be
shown if sales would be lost regardless of the infringing conduct.)
43
Levine, Dan (January 7, 2013). Analysis: Apple bid for Samsung Sales ban faces skeptical
court (http://money.msn.com/business-
news/article.aspx?date=20130107&feed=OBR&id=15966739#scptid). Money. Retrieved on January 7,
2013.
9

damages. Apple met with Judge Koh for a hearing on December 6, 2012 on this post-trial
motion together with Samsung who filed a separate motion seeking for a new trial.
44


Samsung also Continues to Fight

In addition, to show that it is still in the fight, Samsung issued a statement after the
verdict which states:

Todays verdict should not be viewed as a win for Apple,
but as a loss for the American consumer. It will lead to fewer
choices, less innovation, and potentially higher price. It is
unfortunate that patent law can be manipulated to give one
company a monopoly over rectangles with rounded corners, or
technology that is being improved every day by Samsung and other
companies. Consumers have the right to choices, and they know
what they are buying when they purchase Samsung products. This
is not the final word in this case or in battles being waged in courts
and tribunals around the world, some of which have already
rejected many of Apples claims. Samsung will continue to
innovate and offer choices for the consumer.
45


Samsung then filed a motion for a new trial on September 21, 2012 in San Jose,
California. Samsung argued that the verdict was not supported by evidence or testimony.
Samsung also argued that the judge imposed limits on testimony time and the number of
witnesses prevented Samsung from receiving a fair trial. Finally, Samsung argued the jury
verdict was unreasonable.
46
A hearing was held with Judge Koh on December 6, 2012 on this
motion, in which Apple also attended due to a separate motion filed on September 21 and 22,
2012 requesting an additional $707 million in interest.
47


On October 2, 2012, Samsung requested the San Jose district court to overturn the August
24, 2012 jury verdict and grant Samsung a new trial. Samsung claimed that the jury foreman,
Velvin Hogan, was biased and deceitful during voir dire. This appeal was filed based primarily

44
Alan, F. (December 6, 2012). Apple and Samsung returned to court for hearing in front of Judge
Koh (http://www.phonearena.com/news/Apple-and-Samsung-return-to-court-for-hearing-in-front-of-
Judge-Koh_id37363). Phonearena.com. Retrieved January 6, 2013.
45
Burnette, Ed (August 25, 2012). The verdict is in: Samsung vs. Apple
(http://www.zdnet.com/the-verdict-is-in-samsung-vs-apple-7000003163/). Zdnet. Retrieved January 6,
2013.
46
Ellas, Paul (September 22, 2012). Apple, Samsung demand changes to $1B verdict
http://news.yahoo.com/apple-samsung-demand-changes-1b-verdict-210635615--finance.html). Yahoo
News. Retrieved January 6, 2013.
47
Alan, F. (December 6, 2012). Apple and Samsung returned to court for hearing in front of Judge
Koh (http://www.phonearena.com/news/Apple-and-Samsung-return-to-court-for-hearing-in-front-of-
Judge-Koh_id37363). Phonearena.com. Retrieved January 6, 2013.
10

on interviews given by the jury foreman, Velvin Hogan, after the verdict.
48
Samsung claimed
that during the jury deliberation process, the jury foreman improperly introduced incorrect and
erroneous standards. Samsung also claimed that bias should be presumed in this case because
the jury foreman deliberately concealed his lawsuit with Seagate Technology during voir dire
when he gave an incomplete answer regarding prior lawsuits. Seagate was the jury foremans
former employer and had strategic relationship with Samsung. The jury foreman was forced to
file bankruptcy as a result of being sued by Seagate. Samsung alleges that the juror foreman lied
because he wanted to secure a seat on the jury. However, Samsungs request was denied.
49


On December 17, 2012 by Judge Koh denied Samsungs request stating that the
integrity of the jury system and the Federal Rules of Evidence demand that the Court not
consider Mr. Hogans post-verdict statements concerning the jurys decision-making process.
Thus, Judge Koh concluded that since the district court cannot consider inadmissible statements
when considering whether or not to hold an evidentiary hearing, the court cannot grant Samsung
a hearing because Samsung had not provided proper evidence.
50


Reexamination of Apples Software Patents

One unexpected outcome after the trial was that on October 15, 2012, the U.S. Patent and
Trademark Office (USPTO) tentatively invalidated all the claims of Apples bounce back patent,
U.S. Patent No. 7,469,381 in a non-final office action during a reexamination proceeding.
51

Several weeks later, on December 3 and 19, 2012, the USPTO also rejected all the claims of
Apples On-Screen Navigation patent, U.S. Patent No. 7,844,915
52
and Apples Tap-To-
Zoom patent, U.S. Patent No. 7,864,163.
53
However, Apple has been given opportunities to

48
(October 3, 2012). Samsung claims jury foreman misconduct tainted Apple case
(http://www.bloomberg.com/news/2012-10-03/samsung-claims-jury-foreman-misconduct-tainted-apple-
case/ Bloomberg. Retrieved January 6, 2013.
49
Koh, Lucy, District Judge (December 17, 2012). Apple Inc. v. Samsung Electronics Co., Ltd, et
al. Case No.: 11-CV-01846-LHK.
50
Id.
51
See USPTO non-final Office Action issued on October 15, 2012 on Apples bounce back
patent, U.S. Patent No. 7,469,381 (Application No. 90/012,304 filed on May 23, 2012) in which all
claims were rejected in view of new prior art. Specifically, claims 1-16, 8-12, 16, 19 and 20 were rejected
under 35 U.S.C. 102(b) as being anticipated by Lira, PCT Publication No. WO 03/081458; claims 7 and
13-15 were rejected under 35 U.S.C. 103(a) as being unpatentable over Lira; and claims 1-5, 7-13, and
15-20 were rejected under 35 U.S.C. 103(a) as being unpatentable over Ordering, U.S. Patent No.
7,786,975.
52
See USPTO non-final Office Action issued on December 3, 2012 on Apples On-Screen
Navigation patent, U.S. Patent No. 7,479,949 (Application No. 90/012,308 filed on May 24, 2012) in
which all claims were rejected in view of new prior art. Specifically, claims 1, 2, 4-8, 11, 14-17, 19, and
20 of the 949 patent were rejected under 35 U.S.C. 102(b) as being anticipated by Wakai, U.S.
Publication No. 2002/0036618; claim 3 was rejected under 35 U.S.C. 103(a) as being unpatentable over
Wakai in view of Geaghan, U.S. Publication No. 2003/0063073; and claims 9, 10, 12, 13 and 18 were
rejected under 35 U.S.C. 103(a) as being unpatentable over Wakai in view of Pallakoff, U.S. Publication
No. 2005/0012723.
53
See USPTO non-final Office Action issued on December 19, 2012 on Apples Tap-To-Zoom
patent, U.S. Patent No. 7,844,915 (Application No. 90/012,332 filed on May 30, 2012) in which all
11

explain to the USPTO Examiner why the claims should be patentable (valid) in view of newly
cited prior art. According to the USPTO statistics, Apple will have about 11% chance that all the
claims will be confirmed, 42% chance that all the claims will be canceled and invalided, and
47% chance that all the claims will survive the re-examination with new claims changes.
54

Generally, the USPTO determinations of unpatentability in reexamination, if affirmed by the
Federal Circuit, would trump district court rulings of no invalidity. Thus, the USPTO could
find Apples patents invalid, even after the District Court for the Northern District of California
has upheld their validity.
55
As such, the USPTO reexamination decision could negatively impact
the ruling of this trial.

Second U.S. Trial

On February 9, 2012, Apple requested a preliminary injunction against the Samsung
Galaxy Nexus for infringing four of Apples newly acquired patents as well as filed a suit against
Samsung.
56
Simultaneously, Apple filed a complaint against Samsung asserting that 17 more of
Samsung products infringe on eight of Apples patents.
57


claims were rejected in view of new prior art, including Hillis, U.S. Patent No. 7,724,242; Hill, U.S.
Publication No. 2005/0057524; Ullmann et al., U.S. Patent No. 6,677,965; Makus, U.S. Patent No.
6,757,673; Japanese Pub. No. 2000-163031 to Nomura; International Publication No. WO 03/081458 to
Lira; and Dean Harris Rubine, The Automatic Recognition of Gestures CMU-CD-91-202, December
1991. Specifically, claims 1, 5-8, 12-15 and 19-21 were rejected under 35 U.S.C. 102(e) as anticipated
by Hillis; claims 2, 9 and 16 were rejected under 35 U.S.C. 103(a) as unpatentable over Hillis and Lira;
claims 3, 4, 10, 11, 17 and 18 were rejected under 35 U.S.C. 103(a) as unpatentable over Hillis in view
of Makus; claims 1, 5-8, 12-15 and 19-21 were rejected under 35 U.S.C. 103(a) as unpatentable over
Nomura and Rubine; claims 2, 9 and 16 were rejected under 35 U.S.C. 103(a) as unpatentable over
Nomura, Rubine and Lira; and claims 3, 4, 10, 11, 17 and 18 were rejected under 35 U.S.C. 103(a) as
unpatentable over Nomura, Rubine and Makus.

55
In re Baxter, Intl Inc., 678 F.3d 1357, 1366 (Fed. Cir. 2012), the Court of Appeals for the
Federal Circuit held that the USPTO can invalidate a patent during reexamination that had been upheld
during litigation. Specifically, Baxter International won a patent infringement suit against rival Fresenius
USA in early 2007, convinced the Federal Circuit to uphold the validity of claims in Fresenius USA, Inc.
v. Baxter Intl, Inc., 582 F.3d 1288 (Fed. Cir. 2009) and on March 16, 2009 obtained a final judgment for
more than $23.5 million dollars. Between 2006 and 2010, the USPTO reexamined Baxters patent. The
Board of Appeals at the USPTO, even after consideration of the Federal Circuit decision, found Baxters
invention obvious and invalidated its patent. Nevertheless, the Federal Circuit affirmed the Board
decision that the same claims previously affirmed are invalid as obvious. Different result is based on a
different evidentiary standard used in reexamination proceedings and patent infringement actions. In an
infringement action, the standard of proof for invalidity is clear and convincing evidence. In contrast,
in USPTO reexamination, the standard of proof is substantially lower at a preponderance of the
evidence and there is no presumption of validity.
56
Melanson, Donald (February 10, 2012). Apple seeks injunction against Samsung in California
with newly acquired patents (http://www.engadget.com/2012/02/10/apple-seeks-injunction-against-
samsung-in-california-with-newly/). Engadget. Retrieved on January 8, 2013.
57
Gorman, Michael (February 16, 2012). Apple v. Samsung: Cupertinos latest complaint alleges
17 devices infringe 8 of its patents (http://www.engadget.com/2012/02/16/apple-v-samsung-cupertinos-
latest-complaint-alleges-17-device/). Engadget. Retrieved on January 8, 2013.
12

Global Battle
The Apple-Samsung global war is extraordinarily huge. This global battle started on
April 15, 2011 when Apple filed lawsuit in U.S., and Samsung filed countersuits in Seoul,
Tokyo, and Mannheim, Germany on April 22, 2011. By the summer of 2011, Samsung also
filed suits in Britain High Court of Justice, in the US District Court for the District of Delaware,
and with the ITC all in June. By August 2011, 19 litigations in 9 countries were filed by both
Apple and Samsung.
58
By October 2011 this battle expanded to ten countries. By July 2012, 50
lawsuits around the globe with billions of dollars in damages claimed between them. While
Apple won in US, Samsung won in South Korea, Japan and UK.
59


South Korean Battle

The South Korean lawsuit began in April 22, 2011 when Samsung filed a complaint
against Apple in the Seoul Central District Court a week after Apple sued Samsung in the U.S.
court. Samsung alleged that Apple infringed on five of Samsung utility patents. Samsung
claimed that Apple infringed on Samsungs wireless technology that connects mobile phones to
personal computers for wireless data transfer. On the same day that Samsung filed a complaint in
Korea, it also filed a complaint in Tokyo and Germany on June 22, 2011.
60

On August 23, 2012, Samsung scored a victory in South Korea. The Seoul Central
District Court ruled that Samsung did not copy Apple iPhone design. The judge stated that
because both Apple and Samsung have their respective logos on the back of each iPhone and
each Galaxy, it would be difficult to argue that consumers would confuse the iPhone with the
Galaxy.
61


With regard to the utilities patents, the South Korean Court ruled that Apple infringed on
two of Samsungs wireless patents, and that Samsung violated Apples bounce-back patent. The
Court ordered Apple to pay Samsung 40 million won ($35,400), and Samsung to pay Apple 25
million won. These fines were small because the compensation sought by both parties was small
due to the small market in South Korea. The judge also banned sales of four of Apple products,
including the iPhone 4 and iPad 2, and ten of Samsung products which included the Galaxy S II.
This, however, did not affect the latest-generation of Apples iPhone 4S or Samsungs Galaxy

58
Meyer, David Apple sues Samsung in the UK over Android (http://www.zdnet.com/apple-sues-
samsung-in-the-uk-over-android-4010024342/) Zdnet. Retrieved on January 4, 2013.
59
Mueller, Florian (July 24, 2012). Apple seeks $2.5 billion in damages from Samsung, offers
half a cent per standard-essential patent (http://www.fosspatents.com/2012/07/apple-seeks-25-billion-in-
damages-from.html). Retrieved on January 4, 2013.
60
Yang, Jun (April 22, 2011). Samsung sues Apple on patent-infringement claims as legal dispute
deepens (http://www.bloomberg.com/news/2011-04-22/samsung-sues-apple-on-patent-infringement-
claims-as-legal-dispute-deepens.html). Bloomberg. Retrieved on January 2, 2013.
61
Kim, Miyoung (August 24, 2011). Samsung Electronics Co.s flagship Galaxy smartphone looks
very similar to Apples iPhone, but the South Korean firm has not violated the iPhone design, a Seoul
court ruled on Friday (http://www.reuters.com/article/2012/08/24/us-samsung-apple-court-
idUSBRE87N03J20120824). Reuters. Retrieved January 2, 2013.
13

S3.
62
In addition, this victory was short lived because the very next day Samsung got struck
down in the U.S. court with a $1 billion fine.

J apan Battle

On April 22, 2011, Samsung filed a complaint against Apple in Tokyo Court, accusing
Apple of infringing on two of its patents after Apple initiated a lawsuit against Samsung on April
15, 2011 in the U.S. In response, Apple filed a series of lawsuits against Apple alleging that
Samsung infringed on its patents.
63


On August 31, 2012, the Tokyo District Court ruled in favor of Samsung. The Court
ruled that Samsungs Galaxy smartphones did not infringe on an Apple patent relating to
synchronizing music and video data with servers.
64
The presiding Tokyo judge also ordered
Apple to pay Samsungs legal fees. At the same time, the Tokyo judge denied Apples request to
ban eight models of Samsungs Galaxy products in Japan. This was a major win for Samsung
after losing the U.S. lawsuit earlier that month, in which Apple won a $1.05 billion verdict.
Right after this ruling, Samsung shares rose as much as 1.6 percent after this decision, reversing
earlier losses after the U.S. verdict a week earlier.
65


German Battle

When the lawsuits filed in Germany on April 22, 2011, Samsung did not expect that so
many of its own products to be banned in Germany before beating Apple in the German Court.
Because Germany is the largest economy is Europe, a series of lawsuits and countersuits were
filed in Germany by both Samsung and Apple, as well as other giant smartphone players, such as
Motorola. In April 8, 2012, New York Times ran an article calling German courts the epicenter
of patent battles.
66


The first strike against Samsung in Germany was from the Landgericht Court in
Dusseldorf on August 9, 2011. This court granted Apples request for an EU-wide preliminary
injunction banning the sale of Galaxy Tab 10.1 throughout European Union, with the exception
of the Netherlands. The German Court claimed that Samsung infringed on two of Apples

62
Id.
63
Id.
64
Worstall, Tim (August 31, 2012). Links 31 Aug: Samsung beats Apple in court, Apple sues
Samsung again (http://www.forbes.com/sites/timworstall/2012/08/31/links-31-aug-samsung-beats-apple-
in-court-apple-sues-samsung-again/). Forbes. Retrieved on January 2, 2013.
65
Yasu, Mariko (August 31, 2012). Apple lose patent lawsuit against Samsung in Japan
(http://www.bloomberg.com/news/2012-08-31/apple-loses-japan-patent-lawsuit-against-samsung-over-
devices.html). Bloomberg. Retrieved on January 2, 2013.
66
OBrien, Kevin (April 8, 2012). Apple lose patent lawsuit against Samsung in Japan
(http://www.nytimes.com/2012/04/09/technology/09iht-patent09.html?pagewanted=all&_r=0). New York
Times. Retrieved on January 2, 2013.
14

interface patent. Although this was a temporary ban, it took immediate effect in Germany.
67

This was a major win for Apple and a huge setback for Samsung.

Samsung immediately requested a hearing accusing Apple of tampering with the
evidence. Samsung managed to compel the German Court to rescind the EU-wide injunction.
Thus, the ban was only applicable in Germany and lifted throughout Europe outside Germany on
August 11, 2011.
68


Samsung faced another setback when it was forced to remove its Galaxy Tab 7.7 tablet
on a display from a booth fair during an IFA electronic fair in Berlin on September 2, 2011
shortly after Apple received an injunction against the tablet on September 9, 2011.
69
Less than a
week later, the German Court ruled that Samsung Galaxy Tab 10.1 infringed on Apples patents
and upheld ban barring Samsung local unit from selling Galaxy Tab 10.1 in Germany. However,
retailers in Germany would still be able to sell the tablets by selling off existing stock or get new
supplies directly from South Korea. Thus, this sale ban had no real consequences. Samsung
remained strong in this fight and appealed this ruling.
70


On January 17, 2012, Apple sued Samsung in Germany claiming that Galaxy 2 infringes
on Apples patents.
71
On March 2, 2012, the Mannheim Court dismissed both Samsung and
Apple suits involving the slide-to-unlock technology on their smartphones.
72
On March 16,
2012, the Mannheim Court suspended a separate lawsuit in which Apple accused Samsung of
infringing on its slide-to-unlock patents.
73
Germany then gave a ruling on July 24, 2012,

67
King, Rachel (August 9, 2011). Apple secures injunction against Samsung Galaxy Tab in E.U.
(http://www.zdnet.com/blog/btl/apple-secures-injunction-against-samsung-galaxy-tab-in-e-u/54459).
Znet. Retrieved on January 2, 2013.
68
Foresman, Chris (August 9, 2011). Apple secures injunction against Samsung Galaxy Tap in
E.U. (http://arstechnica.com/apple/2011/08/apples-worldwide-court-battles-against-samsung-where-
they-stand-and-what-they-mean/). Arstechnica. Retrieved on January 2, 2013.
69
Moyer, Edward (September 4, 2011). Samsung pulls Galaxy Tab 7.7 tablet from IFA booth
(http://news.cnet.com/8301-13579_3-20101414-37/samsung-pulls-galaxy-tab-7.7-tablet-from-ifa-booth/).
Cnet. Retrieved on January 2, 2013.
70
Macari, Matt (January 17, 2012). Apple files new patent case against Samsung in Germany (
70
).
The Verge. Retrieved on January 2, 2013.
71
A German court on Friday dismissed two cases brought by Apple Inc. and Samsung Electronics
against each other as part of a global battle for dominance in the market for smartphones and tablet
devices (http://www.reuters.com/article/2012/03/02/us-apple-samsung-idUSTRE8210JN20120302)
Reuters (March 2, 2012). Retrieved on January 2, 2013.
72
Id.
73
Update 1- German court delays Apples slide-to-unlock lawsuit
(http://www.reuters.com/article/2012/03/16/samsung-apple-idUSL5E8EG18920120316) Reuters (March
16, 2012). Retrieved on January 2, 2013.
15

granting Apple a ban on Samsung Galaxy Tab 7.7, a 7-inch tablet. This ruling came from the
Duesseldorf Higher court.
74


Samsung appealed this ruling.
75


Samsung finally received a victory in the Mannheim Regional Court on September 21,
2012. This court ruled that Samsung did not infringe on Apples touch-screen patent.
Coincidently, this court also ruled against Apple on a different case against Motorola on the
same patent, thus giving Samsung a double taste of winning after a series of losses.
76


On December 18, 2012, a day after Samsung received a victory ruling by a U.S. court
rejecting Apples request for a ban on sales of Samsungs smartphones in the U.S., Samsung
announced that it would drop attempts banning sales of Apple iPhones and iPads in Europe,
including Germany as well as France and Italy, Great Britain, and the Netherlands. However,
Samsung was silent as to whether or not it will continue to seek compensation for damages.
77


French and I talian Battles

After a German court ruled that Samsung could not directly sale its Galaxy Tab 10.1
tablet in Germany in September 9, 2011, Samsung official declared that it will aggressively seek
preliminary injunction against it rival, Apple, in two large European markets, i.e., France and
Italy, blocking sales of its new iPhone 4.
78


However, by December 18, 2012, Samsung publicly announced that it was dropping
attempt to ban sales of Apples iPhones and iPads in Europe, including France and Italy, as well
as Germany, Great Britain, and the Netherlands. This announcement came a day after Samsung
received a victory ruling by a U.S. court rejecting Apples request for a ban on sales of
Samsungs smartphones in the U.S. However, Samsung was silent as to whether or not it will
continue to seek compensation for damages.
79




74
Apples worldwide court battles against Samsung: where they stand and what they mean
(http://www.telegraph.co.uk/technology/samsung/9423424/German-courts-grant-Apple-ban-on-Samsung-
Galaxy-Tab-despite-High-Court-cool-ruling.html). Telegraph. (July 24, 2012). Retrieved on January 2,
2013.
75
Meyer, David Apple sues Samsung in the UK over Android (http://www.zdnet.com/apple-
sues-samsung-in-the-uk-over-android-4010024342/). Zdnet. Retrieved on January 4, 2013.
76
Yang, Jun (September 21, 2012). Apple loses German court ruling against Samsung in patent
suit (http://www.bloomberg.com/news/2012-09-21/apple-loses-german-court-ruling-against-samsung-in-
patent-suit.html). Bloomberg. Retrieved on January 2, 2013.
77
Samsung drops attempt to ban Apple sales in Europe
(http://www.reuters.com/article/2012/12/18/us-apple-samsung-idUSBRE8BH06620121218). Reuters.
Retrieved on January 4, 2013.
78
Sang-Hun, Choe (October 5, 2011). Samsung wants courts in 2 nations to bar iPhone
(http://www.nytimes.com/2011/10/06/technology/samsung-to-seek-block-on-iphone-in-
europe.html?_r=0). New York Times. Retrieved on January 3, 2013.
79
Samsung drops attempt to ban Apple sales in Europe
(http://www.reuters.com/article/2012/12/18/us-apple-samsung-idUSBRE8BH06620121218). Reuters.
Retrieved on January 4, 2013.
16

Dutch Battle

When the German court granted Apples request for an EU-wide preliminary injunction
banning the sale of Galaxy Tab 10.1 throughout European Union in August 24, 2011, a court in
Hague followed suit and banned three of Samsung smartphones in the Netherlands. Samsung
immediately declared that it would appeal, especially since it received a losing ruling without
given an opportunity to fight.
80
In addition, on September 26, 2011, Samsung asked the German
court for an injunction on sale of Apples iPhones and iPads on the ground that Apple did not
have licenses to use Samsungs 3G mobile technologies. Samsungs request was denied on
October 14, 2011 on the ground that 3G was an industry standard, and that Samsung was
obligated to offer Apple licenses under fair, reasonable and nondiscriminatory or FRAND
terms. The Netherlands court added that Samsung could file a separate injunction request if no
agreement could be reached after Samsung made Apple a reasonable offer for a license fee.
81

However, Samsung officially announced that it would drop attempts banning sales of Apples
iPhones and iPads in Europe, and Netherlands on December 18, 2012, a day after Samsung
received a victory ruling by a U.S. court rejecting Apples request for a ban on sales of
Samsungs smartphones in the U.S.
82


Australian Battle

On July 26, 2011, Apple filed a lawsuit against Samsung in Australia 3 days after it got
hold of the US version of Galaxy Tab 10.1 tablet on July 22, 2011. Apple claimed that due to
the imminent release of Samsung Galaxy Tab 10.1 in Australia, it requested the Australian court
to make a speedy ruling, banning Samsung from promoting, taking pre-orders, shipping to sales
channels or even generating interest in the new Galaxy tablet until the infringement suit was
resolved. After a hearing shortly after, the Australian court suggested that Samsung would be
penalized heavily if its tablets were deemed infringing on Apples design patents. This hearing
resulted in an agreement which states that Samsung would restrict the sales of its Galaxy tablet in
Australia and would also give Apple sample devices and source code of devices.
83
As a result,
Samsung Galaxy Tab 10.1 sales were halted in Australia on August 2, 2011.
84



80
Apple wins key German patent case against Samsung (http://www.independent.co.uk/life-
style/gadgets-and-tech/apple-wins-key-german-patent-case-against-samsung-2352133.html ). The
Independent (September 9, 2011). Retrieved on January 3, 2013.
81
Dutch court refuses to ban iPhone, iPad sales
(http://usatoday30.usatoday.com/tech/news/story/2011-10-14/samsung-apple-patent/50771524/1). USA
Today (October 14, 2011). Retrieved on January 8, 2013.
82
(http://www.reuters.com/article/2012/12/18/us-apple-samsung-idUSBRE8BH06620121218).
Reuters. Retrieved on January 4, 2013.
83
Hopewell, Luke (October 13, 2011) Apple blocks Samsung Galaxy 10.1 in Australia
(http://www.zdnet.com/apple-blocks-samsung-galaxy-10-1-in-aus-1339319626/ ). Zdnet. Retrieved on
January 4, 2013.
84
Schneider, Joe (August 1, 2011) Apple lawsuit puts Samsung Tablet sales in Australia on hold
(http://www.bloomberg.com/news/2011-08-01/apple-seeks-to-block-samsung-from-selling-tablet-in-
australia.html). Bloomberg. Retrieved on January 4, 2013.
17

Samsung countersued on September 17, 2011 claiming that Apple infringed on seven of
Samsungs patents.
85
On October 12, 2011, an Australian court issued a preliminary injunction
against Samsung Galaxy Tab 10.1 in Australia, and thus preventing Samsung from the 2011
holiday sale.
86
Samsung appealed and in November 2011, the Australian appeals court
overturned Apples injunction of Samsung Galaxy Tab 10.1 tablet. However, the court ordered
that the ruling be stayed until Apple had the opportunity to appeal this ruling.
87
On December 8,
2011, the ban on the Galaxy Tab 10.1 tablet was lifted in Australia.
88


The Australian battle continued when Samsung counter-sued Apple in Australia after
having to delay the Galaxy Tab 10.1 launch. Samsung complaint was filed with a Federal Court
of Australia in New South Wales, claiming that Apple infringed seven of its patents related to 3G
networking on Apples 3
rd
and 4
th
generation iPhones and iPad 2 devices. Samsung also
attempted to block the sales of Apples iPhone 4S in Australia.
89
On February, 3, 2012, Apple
retaliated by adding 278 claims in 22 of its Australian patent to its complaint which originally
covered only 3 patents.
90
At the beginning of the trial in July 2012, the Australian court declared
that the patent dispute between Apple and Samsung is ridiculous and might be best settle in
mediation.
91
However, it is unlikely that Apple and Samsung will enter mediation discussions,
especially since they had already gone down that path during the U.S. trial with no success. The
outcome of this case is expected early this year.
92





85
Reisinger, Don (September 17, 2011) Samsung fires back at Apple in Australia, report says
(http://news.cnet.com/8301-13506_3-20108148-17/samsung-fires-back-at-apple-in-australia-report-
says/). Cnet. Retrieved on January 8, 2013.
86
Ricker, Thomas (October 12, 2011) Apple wins injunction halting Galaxy Tab 10.1 sales in
Australia (http://www.theverge.com/2011/10/13/2487233/apple-wins-injunction-halting-galaxy-tab-10-
1-sales-in-australia). The Verge. Retrieved on January 8, 2013.
87
Patel, Nilay (November 29, 2011). Apples Australian Samsung Galaxy Tab 10.1 ban
overturned for now (http://www.theverge.com/2011/11/29/2599188/apples-australian-samsung-galaxy-
tab-10-1-ban-overturned-for-now/in/2297513). The Verge. Retrieved on January 4, 2013.
88
Pyett, Amy (December 8, 2011) An Australian court on Friday lifted a ban on the sale of
Samsung Electronics Galaxy tablet computer in the country, adding to a U.S. legal victory for the South
Korean technology firm in its bruising battle with Apple Inc.
(http://www.reuters.com/article/2011/12/09/us-apple-samsung-australia-idUSTRE7B801Z20111209).
The Verge. Retrieved on January 8, 2013.
89
Whitetaker, Zack (October 13, 2011) Apple wins Samsung Galaxy tablet in Australia
(http://www.zdnet.com/blog/btl/apple-wins-samsung-galaxy-tablet-ban-in-australia/60619). Zdnet.
Retrieved on January 4, 2013.
90
Keene, Jamie Apple broadens Samsung lawsuit in Australia to 278 claims across 22 patents and
10 devices (http://www.theverge.com/2012/2/3/2768122/apple-broadens-samsung-lawsuit-
australia/in/2297513). The Verge. Retrieved on January 4, 2013.
91
Schneider, Joe Australia Judge class Apple-Samsung dispute over 3G ridiculous
(http://www.bloomberg.com/news/2012-07-22/samsung-and-apple-global-patent-fight-moves-to-
australia-trial.html). Bloomberg. Retrieved on January 4, 2013.
92
Taylor, Josh Oz Apple-Samsung judge threatens to hear case on Xmas day
(http://www.zdnet.com/au/oz-apple-samsung-judge-threatens-to-hear-case-on-xmas-day-7000003384/).
Zdnet. Retrieved on January 4, 2013.
18

The British Battle

Samsung sued Apple on June 29, 2011 in the High Court of Justice, Chancery Division in
the United Kingdom (UK) for a declaration that its Galaxy tablets were not too similar to
Apples products. Apple filed a countersuit against Samsung in the UK court on September 14,
2011.
93


On July 9, 2012, British Judge Colin Birss ruled that Samsungs Galaxy Tab 10.1, Tab
8.9 and Tab 7.7 do not infringe Apples design patent, after making a backhanded comment that
Samsungs Galaxy tablets were not cool enough to be confused with Apples iPad.
94
This
ruling has effect throughout European Union. Apple appealed but the Court of Appeal of
England and Wales upheld the lower court judgment on October 18, 2012.
95
This was a big
victory for Samsung because the German court gave the opposite ruling on the same patent.

One other outcome of this case was that, on July 18, 2012, the British court ordered
Apple to publish an announcement on their website a disclaimer stating that Samsung did not
copy the iPad. Apple appealed; however, the British Court of Appeals upheld the lower court
ruling.
96


III. PRACTICAL IMPLICATIONS & REPERCUSSIONS OF THE APPLE
vs. SAMSUNG CASE
The practical implications and repercussions of the Apple v. Samsung case are enormous
both short term and long term, not only for the smartphone industry but also the patent law and
innovation in the United States.
The obvious is that market shares of Apple stocks rose almost 2% and Samsung stumble
almost 8% the day after Samsung verdict on August 24, 2012.
97
One other short term
implication is that innovative phone startups will likely have a difficult time raising funding
because investors are concerned of being sued.

93
Meyer, David Apple sues Samsung in the UK over Android (http://www.zdnet.com/apple-
sues-samsung-in-the-uk-over-android-4010024342/). Zdnet. Retrieved on January 4, 2013.
94
Chellel, Kit Samsung wins U.K. Apple ruling over not as cool as Galaxy Tab
(http://www.bloomberg.com/news/2012-07-09/samsung-wins-u-k-apple-ruling-over-not-as-cool-galaxy-
tablet.html) Bloomberg. Retrieved on January 4, 2013.
95
Worstall, Tim Apple Finally Posts the Correct Apology: Hurrah!
(http://www.forbes.com/sites/timworstall/2012/11/03/apple-finally-posts-the-correct-apology-hurrah/)
Forbes. Retrieved on January 4, 2013.
96
Id.
97
Saeronmi Shin & Jun Yang (August 26, 2012). Samsung Shares Fall After Apple Wins $1
Billion Verdict (hhttp://www.bloomberg.com/news/2012-08-27/samsung-shares-fall-after-apple-wins-1-
billion-verdict.html); and Brian Bondus (August 27, 2012). Apples Stock Soars After Samsung Verdict
(http://www.newsy.com/videos/apple-s-stock-soars-after-samsung-verdict-lifts-nasdaq/).
19

For Apple, the $1.05 billion in damages the jury awarded Apple and the prospects of
triple damages for willful infringement are relatively insignificant compared to Apples nearly
$120 billion in cash and investments. However, the verdict is an endorsement of Apple's legal
strategy which focuses on Apples distinctive industrial design, software platforms, and user
interfaces, also known as Apples unique user experience intellectual property that which
makes Apple brand identity and keeps Apple in the marketplace. Equally importance is Apples
playbook for success
98
which consists of four main features: (1) a top down understanding of
the importance of design in the consumers purchasing decision; (2) a top-tier industrial design
team to create appealing designs that drive product demand and, in turn, create an insatiable
desire to copy and emulate its products; (3) a sophisticated design patent acquisition program;
and (4) the desire to invest significant effort and resources to enforce and defend product design.
While the verdict is being appealed, the ruling still marks an important symbolic victory for
Apple against Googles Android. Competitors will think twice about embracing the Android
ecosystem, and will be forced to alter their software (i.e., user interfaces) and hardware to ensure
unique designs relative to Apple products which could lead to lengthen product cycles and higher
development cost. As a result, Apples pricing umbrella could be sustained longer and Apples
products could be sold more over time. However, Apple would need to promote the view that
Apple was just protecting its innovation and IP and work to reinforce its image as an innovator;
otherwise, there could be a backlash from consumers and the public.
For Samsung, the verdict will not create any meaningful interruption. Apples user
interface patents (U.S. Patent No. 7,469,481, known as Bounce-Back-Effect patent; U.S.
Patent No. 7,844,915, known as On-Screen Navigation patent; U.S. Patent No. 7,864,163,
known as Tap-To-Zoom patent), and design patents are relatively easy to design around.
Samsung has already made software modifications to design around Apples patented software
features. Samsung already employs an accomplished industrial design team that has received
many design accolades, including at the prestigious 2012 International Design Excellence
Awards from the Industrial Designers Society of America.
99
Samsung is also a prolific user of
the U.S. design patent system. For example, Samsung is on pace for 500 U.S. design patents this
year.
100
With such talents and resources, Samsung could create products that are unique in their
own rights and are distinctively different in visual appearance from Apple. Ultimately, however,
Samsung is more likely to begin constructive patent cross-licensing negotiations with Apple.
Nevertheless, Samsung has already explored ways to reduce its reliance on Googles Android
after Google acquired handset maker, Motorola Mobility, including developing an alternative
Linux-based operating system for smartphones.
101


98
Canari, Christopher (September 1, 2012). Apple verdict: set to stifle or spur innovation?
(http://edition.cnn.com/2012/08/29/business/opinion-carani-apple-samsung/index.html). CNN. Retrieved
on January 7, 2012.
99
Id.
100
Id.
101
Roger Cheng (December 31, 2012) Samsung to sell first Tizen smartphone next year: Tizen is
an alternative Linux-based operating system seen as a more open platform that will rival Googles
Android and Apples iOS (http://news.cnet.com/8301-1035_3-57561316-94/samsung-to-sell-first-tizen-
smartphone-next-year-report-says/). Cnet.
20

For Google, the claims involved between Apple and Samsung relate to only user
interfaces and designs, and dont relate to the core Android operating system. Nevertheless,
competition between Apple and Google has grown fierce, ranging from competing online
mapping services and mobile ad platforms to media stores and cloud storage. However, having
acquired Motorola Mobility which was meant to give it a big patents war chest, Google is fully
prepared to combat Apples infringement claims; ironically at the same time, however, Google is
also inviting Apple for further scrutiny, especially in view of media reports circulated within the
smartphone industry that Google and Motorola Mobility are working on a top-secret X Phone
designed to compete with Apple as well as Samsung.
102
Regardless, Google will have to
increase software spending to update Android and help its partners to steer clear of Apples
patent claims. Other reports have also surfaced that Google has been making overtures to Apple
for peace.
103
The new Apple CEO Tim Cook, who is not emotionally involved with Google,
would likely welcome peace gesture from Google and settle the dispute with Google over the
Android operating system for smartphones.
For other competitors such as Apples old rival Microsoft and Microsofts key partner,
Nokia, the $1.05 billion jury verdict and any subsequent settlement could result in public
relations and investment victory. Microsoft Windows Phone operating system has not gained
traction in the marketplace since late 2010.
104
The problem has been simple: There are too few
Windows Phone users to make it an attractive platform for developers, and without developer
interest, users shy away from a platform that is lacking in quality apps.
105
In order to reach
critical mass, Microsoft needs some group of stakeholders to turn away from Android as their
go-to alternative to the iPhone. Legal trouble for Android might be just the turning point for
Microsoft and Nokia. Similarly, Blackberry maker Research in Motion (RIM) will also likely to
benefit from the Samsung verdict for these same grounds.
As for the long term implications, skeptics believe that the Samsung verdict will hurt and
stifle innovation, and thus result in fewer product choices and higher prices in the U.S. and the
world. Many skeptics are even critical of the U.S. patent system, especially, software patents
which has been severely attacked from multiple stakeholders within the IT industry.
Nevertheless, the patentability of software has now been firmly established in the U.S.
106


102
Balaji Sirdharan (December 22, 2012). Google and Motorola Are Working On A Top-Secret
X-Phone (http://www.businessinsider.com/google-and-motorola-x-phone-2012-12). Business Insider.
103
Google and Apple Making Peace? CEOs in Talks on Patent Issues
(http://www.cnbc.com/id/48847122/Google_and_Apple_Making_Peace_CEOs_in_Talks_on_Patent_Issu
es). CNBC. Retrieved 30 August 2012.
104
Who Really Lost the Apple vs Samsung Case? You Did. The Patent Verdict is Great News for
Microsoft, Nokia, and Research in Motion but Bad News for Telecoms and You.
(http://www.slate.com/articles/business/moneybox/2012/08/apple_vs_samsung_verdict_a_win_for_micro
soft_nokia_and_research_in_motion_and_a_loss_for_google_telecoms_and_consumers_.html). Slate.
Retrieved 27 August 2012.
105
Id.
106
Software was not recognized as a patentable process until the Federal Circuits en banc
decisions in Arrhythmia Research Technology Inc. v. Corazonix Corp., 958 F.3d 1053 (Fed. Cir. 1992)
21

Others believe that the verdict should be viewed as a victory for consumers, engineers
and designers, patent rights, and the U.S. patent system as a whole. The verdict of this case will
force as well as challenge designers and engineers to be creative and come up with newer
designs while steering away from Apples design. This can be viewed as a great opportunity for
designers and consumers alike because the so desirable Apples design of today will be old in the
future. As for other smartphone makers, this can also be viewed as an opportunity to be creative
with licenses, as well being creative and innovative in making new products. Design patents
107

will be strengthened and will have a more prominent role in a patent portfolio of every
smartphone manufacturer in order to protect the design elements in conjunction with the
functional elements of new products.
Many observers are confident that the U.S. patent system will sort things out properly,
pointing to the re-examination proceedings that are available at the U.S. Patent & Trademark
Office (USPTO) to challenge the validity of software patents, such as Apples user interface
patents (U.S. Patent No. 7,469,481, known as Bounce-Back-Effect patent; U.S. Patent No.
7,844,915, known as On-Screen Navigation patent; U.S. Patent No. 7,864,163, known as
Tap-To-Zoom patent).
In a keynote address delivered at the Center for American Progress on November 20,
2012, David Kappos,
108
Under Secretary of Commerce for IP & Director of the USPTO, offered
a strong defense of software patents and the so-called smartphone patent wars, noting that
patent protection for software-implemented innovations is well-deserved and the volume of
patent litigation in the smartphone industry was a sign that the patent system was working as
intended. Addressing those who claim the U.S. patent system is broken and software patents
stifle innovation, Mr. Kappos said, "Give it a rest already. Mr. Kappos also touted several new
provisions of the America Invents Act
109
(AIA) enacted into law on September 16, 2011,
including post-grant review and transitional program for covered business method patents that

and In re Alappat, 33 F.3d 1526 (Fed. Cir. 1994). Similarly, business methods were not recognized as
patentable processes until the Federal Circuits en banc decision in State Street Bank & Trust Co. v.
Signature Financial Group, 149 F.3d 1368 (Fed. Cir. 1998). Since then, both the U.S. Supreme Court
and the Federal Circuit have tightened the standard for granting software patents. For example, in In re
Nujiten, 500 F.3d 1346 (Fed. Cir. 2007), the Federal Circuit held that signal claims are
no longer statutory. In Bilski v. Kappos, 130 S. Ct. 3218 (2010), the Supreme Court held that the
machine or transformation (otherwise, known as MoT) test is not the exclusive test for determining
an eligible process under 35 U.S.C. 101. Nevertheless, the MoT test remains the safe harbor test for
determining an eligible process under 35 U.S.C. 101.
107
In contrast to utility patents, design patents protect only the appearance or ornamental
aspects of a useful article of manufacture, not its functional aspect; see 35 U.S.C. 171. A
design patent covers, for example, the shape or body features of Apples iPhone, iPod, or iPad. Design
patents last for fourteen (14) years after issuance; see 35 U.S.C. 174.
108
See An Examination of Software Patents by David Kappos on November 20, 2012 (see
www.uspto.gov/news/speeches/2012/kappos_CAP.jsp).
109
See An Overview of Patent Reform Act of 2011: Navigating the Leahy-Smith America Invents
Act (AIA) Including Effective Dates for Patent Reform, authored by Hung H. Bui, Esq., published on
Northeast Asian Law Review Vol. 5, 2011, Northeast Asian Law Center, Hongik University, Seoul,
Korea.
22

allow the USPTO to weed out low-quality software and business method patents. Even more
recently, on January 3, 2013, the USPTO announced that it was seeking to form a partnership
with the software community to enhance the quality of software-related patents.
110
Hopefully,
these efforts will enhance the quality of software-related patents, and the future of competition in
the smartphone industry will be more vibrant and will promote even more innovations.

110
See Request for Comments and Notice of Roundtable Events for Partnership for Enhancement
of Quality of Software-Related Patents. Federal Register Vol. 78, No. 2, January 3, 2013.