When Two Tribes Go To War

We have seen the significant legal bills that publishing is now having to stomach and now more often than not are pitted against organisations with significant ‘war chests’ and deep pockets. However these pale into chump change when you look at the patent battles between the technology giants.

Samsung Galaxy family of smartphones and tablets are now a serious threat to Apple they are starting to gain a quiet momentum to dominate the market. Remember RIM (Blackberry), Nokia, Sony Ericson, HTC? They have all challenged but in the end failed to deliver that extra piece and take the market. Now Samsung is everywhere and you only have to look over your shoulder on the train, the underground to see Samsung devices and the company now expects to deliver operating profits of 8.1 trillion won ($7.3bn; £4.5bn), which is nearly double last year's figure and beating analyst expectations and sending Samsung shares 1.5% higher.

But with success comes the legal battles and costs and it is not all plain sailing for Samsung and the increasingly acrimonious patent battles with Apple continue and are escalating. Some are now starting to question the effectiveness or appropriateness on some patent laws especially in the US.

We have had the rejection of Apple claims in some countries and the notably victory on home turf in California. Samsung to be fair also has won patent cases on its home turf of South Korea. Samsung have now added Apple's latest handset to a US patent lawsuit claiming the iPhone 5 infringes eight of its technologies. These include features to synchronise photos, music and video files across several devices, and a method tocapture and send video over the internet. There are also ‘Frand patents’, which refer to technologies Samsung has an obligation to licence on "fair, reasonable and non-discriminatory" terms as these are regarded as essential to data transmission standards. The other six disputed innovations are feature patents, and in theory Samsung could force Apple's products off the shelves if it does not remove the functions from the devices.

We have potential huge fines and moves to remove devices from the market on both sides of the fence and with Samsung owning some 30,000 US patents it is easy to see this is going to get very legal and costly for everyone. Judge Richard Posner who presided and subsequently threw out a case involving Motorola and Apple in June, has posted a blog calling for an overhaul of the law regarding software patents.

"Nowadays most software innovation is incremental, created by teams of software engineers at modest cost, and also ephemeral - most software innovations are quickly superseded." he wrote.

"Software innovation tends to be piecemeal - not entire devices, but components, so that a software device (a cellphone, a tablet, a laptop, etc) may have tens of thousands of separate components (bits of software code or bits of hardware), each one arguably patentable.”

He advocates that the 20-year-long patent protection that is sensible for pharmaceutical drugs do not apply to software.

Irrespective we now have a further twist in the notorious Californian $1bn patent dispute which Samsung lost on Apple’s home turf earlier this year. Samsung are now claiming that the jury foreman in the original trial did not fully declare his interests so engaging in a serious misconduct that prejudiced the verdict. It is claimed that jury foreman Velvin Hogan "failed to answer truthfully" on information about his past involvements in lawsuits, had a grievance against Seagate over a breach of contract he lost and led to his bankruptcy some six months later, (Samsung are Seagate’s largest shareholder), had a grievance against the law firm Quinn Emmanuel which s the same firm in both cases. Samsung have also raised points on interviews, given by Hogan where he admitted giving instructions to other members of the jury on matters of patent law based on his own experience – instructions that Samsung contest. It all sounds like a plot from a John Grisham novel. Judge Koh has now to rule on the various issues and motions related to the case.

‘When two tribes go to war, a point is all that you can score ‘ Frankie Goes to Hollywood.