|Samsung goes after HTC deal to undercut Apple-filing|
By Dan Levine and Poornima Gupta
SAN FRANCISCO, Nov 16 (Reuters) - When Apple Inc
and HTC Corp <2498.TW> last week ended their worldwide legal
battles with a 10-year patent licensing agreement, they declined
to answer a critical question: whether all of Apple's patents
were covered by the deal.
It's an enormously important issue for the broader
smartphone patent wars. If all the Apple patents are included
-including the "user experience" patents that the company has
previously insisted it would not license - it could undermine
the iPhone makers efforts to permanently ban the sale of
products that copy its technology.
Samsung Electronics Co Ltd <005930.KS>, which could face
such a sales ban following a crushing jury verdict against it in
August, now plans to ask a U.S. judge to force Apple to turn
over a copy of the HTC agreement, according to a court filing on
Representatives for Apple and Samsung could not immediately
be reached for comment.
Judges are reluctant to block the sale of products if the
dispute can be resolved via a licensing agreement. To secure an
injunction against Samsung, Apple must show the copying of its
technology caused irreparable harm and that money, by itself, is
an inadequate remedy.
Ron Laurie, managing director of Inflexion Point Strategy
and a veteran IP lawyer, said he found it very unlikely that HTC
would agree to a settlement that did not include all the
If the deal did in fact include everything, Laurie and other
legal experts said that would represent a very clear signal that
Apple under CEO Tim Cook was taking a much different approach to
patent issues than his predecessor, Steve Jobs.
Apple first sued HTC in March 2010, and has been litigating
for more than two years against handset manufacturers who use
Google's Android operating system.
Apple co-founder Jobs promised to go "thermonuclear" on
Android, and that threat has manifested in Apple's repeated bids
for court-imposed bans on the sale of its rivals' phones.
Cook, on the other hand, has said he prefers to settle
rather than litigate, if the terms are reasonable. But prior to
this month, Apple showed little willingness to license its
patents to an Android maker.
In August, a Northern California jury handed Apple a $1.05
billion verdict, finding that Samsung's phones violated a series
of Apple's software and design patents.
Apple quickly asked U.S. District Judge Lucy Koh to impose a
permanent sales ban on those Samsung phones, and a hearing is
scheduled for next month in San Jose, California.
In a surprise announcement on Saturday, however, Apple and
HTC announced a license agreement covering "current and future
patents" at both companies. Specific terms are unknown, though
analysts have speculated that HTC will pay Apple somewhere
between $5 and $10 per phone.
During the Samsung trial, Apple IP chief Boris Teksler said
the company is generally willing to license many of its patents
- except for those that cover what he called Apple's "unique
user experience" like touchscreen functionality and design.
However, Teksler acknowledged that Apple has, on a few
occasions, licensed those holy patents - most notably to
Microsoft , which signed an anti-cloning agreement as
part of the deal.
In opposing Apple's injunction request last month, Samsung
said Apple's willingness to license at all shows money should be
sufficient compensation, court documents show.
Apple has already licensed at least one of the prized
patents in the Samsung case to both Nokia and IBM
. That fact was confidential until late last year, when
the court mistakenly released a ruling with details that should
have been hidden from public view.
In a court filing last week, Apple argued that its Nokia,
IBM and Microsoft deals shouldn't stand in the way of an
injunction. Microsoft's license only covers Apple patents filed
before 2002, and IBM signed several years before the iPhone
launched, according to Apple.
"IBM's agreement is a cross license with a party that does
not market smartphones," Apple wrote.
Apple's seeming shift away from Jobs-style war, and toward
licensing, may also reflect a realization that injunctions have
become harder to obtain for a variety of reasons.
Colleen Chien, a professor at Santa Clara Law in Silicon
Valley, said an appellate ruling last month that tossed Apple's
pretrial injunction against the Samsung Nexus phone raised the
legal standard for everyone.
"The ability of technology companies to get injunctions on
big products based on small inventions, unless the inventions
drive consumer's demand, has been whittled away significantly,"
The case in U.S. District Court, Northern District of
California is Apple Inc v. Samsung Electronics Co Ltd et al,
disclaimer: good luck, markets are systems to fool the masses