Saturday, June 9, 2012


At a Thursday hearing on Apple's motion for a preliminary injunction against the Galaxy Nexus as well as Apple's concern over the launch of the Galaxy S III (scheduled for June 21), Judge Koh indicated that a request for a temporary restraining order (TRO) may be the only way for Apple to get a decision ahead of the scheduled launch of the Galaxy S III, and told the parties to make a joint submission the next day regarding differences between the Nexus and the S III with respect to the accused features.

Owing to the tight schedule, Apple focuses on two of its four preliminary injunction patents with respect to which it believes there aren't any outcome-determinative differences between the ways in which the Nexus and the S III implement the relevant features: the '604 (unified search, i.e., Siri) and '647 (data tapping) patents. The parties now refer to the accused features as "Android Browser" and "Quick Search Box".

On Friday evening local time, Apple and Samsung filed a joint propoal for a near-term roadmap to answer the question of different implementations. In the following, I will summarize its practical implications for the process that could delay the launch of the S III:

Samsung has committed to identifying by Tuesday (June 12) "whether it contends that the accused features [...] of the Galaxy S III are more than colorably different from the comparable features of the Galaxy Nexus".

If Samsung doesn't identify differences, then I guess Judge Koh will immediately approve Apple's motion to add the S III as another accused product to its Nexus motion.

But Samsung will certainly try very hard to argue that there are potentially outcome-determinative differences. In that case, Samsung's Tuesday filing "will identify the relevant differences between the respective features, as well as any additional non-infringement arguments related to such differences that Samsung contends exist", and Samsung will then "make its best efforts to produce the source code implemented on the Samsung Galaxy S III relating to the accused features by no later than Thursday, June 14, 2012". Given that Samsung certainly has that source code, an agreement to "make its best efforts" is a relatively weak commitment. It provides Samsung with an opportunity to cause further delay, though it wouldn't be in Samsung's interest to delay things too much since it would be viewed negatively by the court.

At any rate, the parties will reconnect within three days of Samsung's statement on differences to "determine what additional discovery and briefing regarding the Samsung Galaxy S III may be required, if any, and the amount, timing, and exact nature of any such discovery and briefing".

This schedule suggests to me that Apple will make its final decision on whether to file for a TRO either in a few days (if Samsung concedes that the relevant features are implemented in pretty much the same way, or if Samsung grossly overstates the significance of any differences) or in the early part of the following week.

Various media reports quote Samsung as assuring the market that the S III will launch on time. But Samsung has committed to a schedule that would enable Apple to cause significant delay and, potentially, force Samsung to throw out features.

I heard that many Google lawyers were in the courtroom at the Thursday hearing. Google doesn't admit it but it's very nervous about the situation. It overpromised last summer when it told the Android ecosystem that its acquisition of Motorola Mobility, which was closed last month, would enable it to "protect Android". For now it appears that all those who said that this was "too little, too late" were right. Motorola has so far won only one ruling over a non-standard-essential patent (the push notification patent, in Germany). It also won a German injunction against Apple over a standard-essential one but can't enforce it anymore. And in the United States it's not going to enforce a non-standard-essential patent against Apple for another two years based on current court schedules. Its only chance to enforce a standard-essential one during that period is an ITC investigation that has drawn an unprecedented level of statements on the public interest arguing against an import ban (from the competition enforcers at the FTC and from major industry players including Cisco, HP and Nokia as well as industry associations such as the Business Software Alliance and the Retail Industry Leaders Association, not because any of those stakeholders want to favor Apple over Google/Motorola but for overarching reasons: injunctive relief based on standard-essential patents causes widespread concern.

Every time Google or its partners fend off an Android infringement lawsuit, there's celebration. But six patents have already been enforced against Android in three different jurisdictions, and many more will be over time. It's clear that Google and its partner can fend off some but not all such assertions. That's why the key question is: how will Google make good on its promise to "protect Android"? If it wants to do so, it must get some legitimate (i.e., non-abusive) leverage against Apple. Paying $12.5 billion doesn't necessarily buy enforceable decisions. Prior to the year 2014, Google most likely won't get leverage in the U.S. to force Apple to tolerate Android's infringement. As a result, Android device makers like Samsung continue to be under pressure, and Google's lawyers going to the courtrooms can watch but they can't help.


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