Samsung and Apple's patent clash heads to trial by jury

By Leo Kelion
Technology reporter

image captionApple's court filing demonstrates what it says is evidence that Samsung copied its iPhone design

Samsung and Apple's patent battle heads to a court in California this Monday - one of the biggest trials of its kind.

The tech firms have accused each other of intellectual property infringement.

Billions of dollars of payments could be triggered from one business to the other and sales bans imposed if the jury finds one or both parties guilty.

Submitted documents and testimony are also likely to throw fresh light on decision making processes and deals made by the two tech firms with others.

Together the two companies account for more than half of all the world's smartphone sales.

Despite the fact that Apple buys many of its components from Samsung, the two have failed to agree cross-licencing deals even after the courts forced their bosses to meet for talks.

Phone patents

The case was prompted by a lawsuit from Apple in April last year. A countersuit by Samsung followed and the two actions were combined.

The iPhone maker is claiming a total of $2.5bn (£1.6bn) in damages - although the judge could triple that figure if she decides to punish Samsung for wilful misconduct.

Apple claims it is victim to seven patent breaches in addition to other trade violations.

It alleges these include copies of its designs for the bodies of the original iPhone and the iPad as well as user-interface elements such as the bounce-back response when a person scrolls beyond the end of a list, and tap-to-zoom .

image captionSamsung says its mock-ups demonstrate it did not "switch its design direction" after the iPhone

Samsung is demanding a "reasonable royalty rate" for five patents which it claims Apple has infringed.

Two of these relate to mobile phones' ability to use 3G technology . These are called standard-essential patents since the innovations are necessary to offer a feature recognised as an industry-standard which must therefore be offered and licensed on "fair and reasonable terms".

The South Korean firm says that Apple rejected its original licence proposal, never made a counter-offer "and to this day has not paid Samsung a dime".

The Galaxy S3 maker's three other patent claims cover the integration of a mobile phone, digital camera and email into a single device; bookmarking a picture in an image gallery ; and using an app while continuing to listen to music in the background.

Although Samsung's trial brief does not specify a sum that it thinks it is owed, Apple's filing suggests its rival is seeking a share of 2.4% of the sale price of its products for the standards-essential patents alone.

Apple says this would be the equivalent of "$14.40 per unit" based on the average selling price of an iPhone. It notes that is more than the cost of the chip it uses to provide 3G functionality.

Sony's influence

Apple says: "Samsung must play by the rules. It must invent its own stuff. Its flagrant copying and massive infringement must stop."

Samsung counters: "Apple's overreaching claim for damages is a natural extension of its attempts to monopolise the marketplace... It seeks to collect 'lost profits' despite the fact that no one buys phones because they have 'bounce back' feature or other manifestations of Apple's alleged inventions."

image captionThis filing by Samsung shows a concept design created by Apple in March 2006, which was inspired by Sony

Samsung's paperwork suggests it seeks to undermine Apple's accusations by showing it was already working on rounded rectangular handsets dominated by a screen and a single button months before the iPhone was revealed.

It also claims that Apple's ideas were not one-offs, but were instead heavily influenced by Sony.

It alleges that the US company changed direction after reading an interview with two of Sony's product designers and has submitted images of Apple-created concept designs featuring the Japanese company's logo to back up its claims.

Apple argues the models it created looked nothing like Sony's Walkman phones at the time and has asked the judge to exclude the evidence and stop it being presented to the jury.

Confused customers

The US company's filings suggest it will argue that Samsung brought to market products it knew were "confusingly similar" to Apple's.

In particular it highlights a Samsung survey that found that the most common reason for customers returning a Galaxy Tab 10.1 to the retailer Best Buy was because they had thought they had purchased an iPad.

It also says Samsung was warned by Google that its tablet designs were "too similar". The claim carries weight because the search giant designed the Android system which powers the South Korean firm's devices.

"The ferocity of the assorted Apple-Samsung legal battles reminds us that the courtroom has become perhaps just as important as the research lab for today's technology companies," commented Andrea Matwyshyn, assistant professor of legal studies and business ethics at Wharton School, University of Pennsylvania.

"The factual details of the various Apple-Samsung suits highlight the fluidity of the design process in the smartphone and tablet space - with Apple alleging that Samsung copied its designs and Samsung alleging that Apple's intellectual property rights are subject to the prior art of Sony."

image captionApple filed this drawing as part of its iPad design patent in March 2004

Unsealed deals

The jury will hear the evidence over at least four weeks. Florian Muller, a patent consultant who has blogged about the run-up to the trial, said it was likely to be a complicated case.

"No trial before this one has been about such a diversity of intellectual property rights - we have different kinds of patents and so-called trade dresses [packaging and appearance claims] in play," he told the BBC.

"The jury is probably going to be able to tell whether some of Samsung's products look similar to Apple's, but it will almost certainly be overtaxed as far as the highly technical patents are concerned."

Other tech firms may also find the coming weeks hard going.

Chip designer Qualcomm has already seen details of one of its licensing deals become common knowledge despite requesting that the details remain confidential.

Microsoft, Nokia and Google's Motorola unit have also asked that some portions of the evidence remain sealed, but the judge has said she would be guided by the rule that "public access must be respected unless truly unwarranted".

Whatever the outcome, the lawsuits are likely to continue.

Apple and Samsung are already scheduled to attend a separate US hearing on 20 August to discuss another patent dispute.

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