Apple Claims it “Warned” Samsung Pre-Lawsuit About Android Infringements

It was one of the most bitter feuds of tech visionary Steven P. Jobs waning years — Apple versus Android.  The rivalry would come to consume the stricken leader of Apple, Inc. (AAPL) leading him to infamously declare to his autobiographer that he would resort to “thermonuclear war” to deal with Android, which he views as a “stolen product”.

I. Apple Tried to “Negotiate” With Samsung (Redux)

But reportedly Apple was wary of creating precisely the kind of drawn out court mess that it would eventually find itself in [1][2][3][4] [5][6][7][8] [9][10][11].  A new filing [PDF] in U.S. federal court have added to the perspective of previous court testimony from Apple’s Australian lawsuit against Samsung Electronics Comp., Ltd. (KS:005930).

As stated by Richard Lutton, a senior director at Apple and the company’s patent attorney, in his Australian court testimony, Apple allegedly tried to inform Samsung of its infringement, with the implied suggestion that a settlement agreement may have been discussed.  The new filing puts these claims on the official U.S. court record and fleshes them out with fresh details

Apple in court is again claiming it told Samsung to remove features, but was met with resistance. [Image Source: Wired]
According to the filing, Samsung and Apple first met in July 2010, shortly after Apple smacked HTC Corp. (TPE:2498) with the first lawsuit in the legal conflict.  Apple claims Samsung willfully infringed, despite its July presentation and a handful of follow-up meetings.  It writes [PDF]:

On or about August 4, 2010, Apple representatives met with Samsung in Korea and showed a presentation titled ‘Samsung’s Use of Apple Patents in Smartphones.’ This presentation emphasized Samsung’s copying of the iPhone and identified two of the patents-in-suit (the ‘002 and ‘381 patents), giving Samsung actual notice of at least these patents, and many more.

On or about August 26, 2010, Apple sent Samsung an electronic archive file containing claim charts further illustrating Samsung’s infringement of Apple patents. A presentation document that accompanied these claim charts identified the ‘002 and ‘381 patents as two patents that Samsung products infringed, and it substantiated these allegations with text from the patents and photographs of Samsung devices illustrating infringing functionality. Apple later presented these slides to Samsung at a meeting in Cupertino, California on or about September 9, 2010.
Patent ‘002 was U.S. Patent No. 6,493,002, a patent on “Method and apparatus for displaying and accessing control and status information in a computer system”, covers preventing a static toolbar GUI element from overlapping with active windows.  There are several places where such touches could be construed as occurring in Android, including with its notifications bar, which is drawn over the active window.  The patent was filed in 1997 and issued in 2002.  While clearly originally intended for a non-handheld environment Apple claimed the patent was broad enough to apply to mobile devices as well.

Patent ‘381 was U.S. Patent No. 7,469,381, a patent describing “List scrolling and document translation, scaling, and rotation on a touch-screen display”, offered a much more mobile-centric invention claim.  It covered Apple’s “kinetic scrolling” mechanisms, which allowed for faster scrolling within long lists (say an email inbox) on a handheld.  Despite modifying its devices to try to skirt Apple’s claims, Samsung’s dumbed down scrolling is still being targeted by Apple, who appears to be claiming broad ownership of all scrolling on handheld devices. 

II. The Great Unknown — What Did Apple Offer Samsung Behind Closed Doors?

While Apple made it clear that it presented the alleged infringements to Samsung, one thing not made clear by the filing is what happened next.  Did it offer licensing?  Did it simply demand the features be removed?

Rumor has it that Apple made Samsung a deal with the devil — it would not sue, if Samsung voluntarily agreed to pay licensing and, more painfully, agreed to forgo the lucrative tablet market that Apple had just bred months earlier with the launch of the first generation iPad.

Apple allegedly had high hopes that Samsung would back down.  After all it had a long history of bullying open source companies like Sun Microsystems into unfavorable settlement agreements.  But the notorious bully was surprised to find Samsung not cowed like Sun and unafraid of the recent court action against HTC.  Apple had underestimated Samsung — a company that is itself known as a bit of a “patent bully”.

Apple and Samsung could not reach an out of court settlement regarding Apple’s allegations of infringement.  Samsung claims Apple infringes on its IP. [Images Source: 9to5Google]
Ultimately the fight between the two companies would commence months later when a bitter Apple — frustrated at lack of cooperation from Samsung — filed suit in April 2011 in Northern California District Court.  Samsung, which in 2011 ascended to become the world’s top Android phonemaker and enter a virtual tie with Apple for the position of the world’s top smartphone seller, would go on to escalate the court battle into an international war.

There have been loses on both sides.  In some regions (such as Germany), Samsung has been forced to adopt a clumsy spiral unlock, which is far less easy than the slide unlock that U.S. users still enjoy.  Likewise, where as U.S. customers enjoyed untainted Galaxy Tab 10.1’s in 2011, in Germany Samsung was force to put out a revised design in order to regain entrance into the market.  And of course, as mentioned, Samsung was forced to remove certain scrolling functionality and other perks from its Android distribution via updates.

Apple also has had its casualties.  While it has largely blocked Samsung’s questionable efforts to slap it with 3G patent violations (which arguably should never have been used in a lawsuit as they were licensed under the “fair, reasonable, and non-discriminatory” (FRAND) rules), it has been less successfully in fighting Samsung’s technology patents.  Samsung has successfully forced Apple to kill push email service to customer in Germany.

III. Despite Reports of Pending Truce, Fight Far From Over

That loss led to reports that Apple was negotiating a licensing settlement, seeking $5 to $15 USD per device from Samsung, HTC, and other Android phonemakers, a similar payout to Microsoft’s Android licensing arrangement.

If such a licensing deal is in the works, there’s no official sign of it yet.  Ultimately Samsung is still actively suing Apple and Apple is actively suing Samsung (as the document filed in U.S. court illustrates).  Ultimately, most experts agree that an armistice would behoove both gadget makers, but both companies appearing to be holding out, hoping to strengthen their respective bargaining positions with court victories.

Like Japanese movie monsters, Samsung and Apple are slugging it out, leaving a path of sales destruction in their wake. [Image Source: Toho Pictures]
The latest court revelation from Apple and its leaked release to the public is certainly a clever public relations ploy on Apple’s part.  It is absolutely in Apple’s interest to portray itself not as the aggressor in the global dispute, but as the victim.

But in reality, without knowing what Apple demanded from Samsung, it’s hard to say exactly how reasonable Apple’s request was.  And one must bear in mind that much of Apple’s asserted intellectual property against Android is overly broad non-mobile operating system patents, which cover fundamental GUI elements.  In that regard, the described talks may have been less of a friendly warning and more of a bully’s threat of legal blows.  What Apple clearly did not anticipate was that it was talking to a bully who was equally willing to hit back.

The “King Kong” and “Godzilla” of the gadget world should enjoy a fiercely fought 2012, both in the store and in the courts.

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