Apple and Samsung return to court for new trial over Android patents

The smartphone world's fiercest rivalry is heading back to court again this week in the heart of the Silicon Valley, as Apple and Samsung begin a new trial - accusing each other, once again, of ripping off designs and features.

The trial will mark the latest round in a long-running series of lawsuits between the two tech giants that underscore a much larger concern about what is allowed to be patented. 

Like the previous trial, held in summer 2012, the new one will be overseen by Judge Lucy Koh in the California district court in San Jose. Samsung is appealing against that verdict, where a jury found in Apple's favour on every count, though reducing its damages claim.

In the new trial Apple is seeking damages of $2bn, claiming infringement of five patents by Samsung devices sold in the US between 2010 and 2012, including Galaxy smartphones and tablets. Samsung is claiming infringement of two of its patents by the iPhone and iPad. Jury selection begins on Monday relating to data transmission and the use of video, audio and photos.

"There's a widespread suspicion that lots of the kinds of software patents at issue are written in ways that cover more ground than what Apple or any other tech firm actually invented," Notre Dame law professor Mark McKenna said. "Overly broad patents allow companies to block competition."

If Apple is successful, it could bring similar lawsuits against other Android handset makers, because the patents at issue are part of Google's Android software, rather than being particular to Samsung's TouchWiz software. Apple cannot sue Google directly because it is only when the Android code is implemented in hardware that infringement arises.

However the slow pace of lawsuits has raised the question of how effective such lawsuits are. Apple began the lawsuits when Steve Jobs expressed frustration at what he saw as "copying" by Android of iPhone features, and vowed to go "thermonuclear" in his attempts to stamp them out. But Apple has had very few concrete successes in courts, despite a number of successful cases, with Google's software now powering about a billion devices worldwide.

Apple filed the suit against the South Korean consumer electronics behemoth in February 2012 in what Koh called "one action in a worldwide constellation of litigation between the two companies".

The latest Apple-Samsung case will be tried less than two years after a federal jury found the South Korean firm was infringing on Apple patents. Samsung was ordered to pay $929m but has been allowed to continue selling products using the technology after Judge Koh denied Apple a sales injunction pending appeal. Koh ruled then that there was no clear evidence that the specific patents which Samsung had been found to infringe actually drove sales.

"Apple revolutionized the market in personal computing devices," Apple attorneys wrote in court filings. "Samsung, in contrast, has systematically copied Apple's innovative technology and products, features and designs, and has deluged markets with infringing devices."

Samsung countered that it has broken technological barriers with its own ultra-slim, lightweight phones.

"Samsung has been a pioneer in the mobile device business sector since the inception of the mobile device industry," Samsung attorneys wrote. "Apple has copied many of Samsung's innovations in its Apple iPhone, iPod, and iPad products."

In the upcoming case, Apple claims Samsung took a tap-from-search technology that allows someone searching for a telephone number or address on the web to tap on the results to call the number or put the address into a map. It also points to a Google Quick Search Box in the Android-powered Galaxy Nexus steals from patented technology used by virtual assistant Siri to answer queries in the iPhone. It also claims patents on autocorrection when words are typed. In addition, Apple says Samsung copied "Slide to Unlock," which allows users to swipe the face of their smartphone to use it.

Last week an Apple engineer who worked on the original iPhone told the Wall Street Journal about the intense pressure from Steve Jobs to come up with the company's first smartphone model - and how the team devised the slide-to-unlock feature. But Samsung is expected to counter that the idea had already been implemented by other companies on phones, which could render it invalid, depending on when Apple's patent was filed.

Samsung countered that Apple is stealing a wireless technology system that speeds up sending and receiving data.
The most attention-grabbing claim in the case is Apple's demand that Samsung pay a $40 royalty for each Samsung device running software allegedly conceived by Apple, more than five times more than the amount sought in the previous trial and well above other precedents between smartphone companies.

Each side has 25 hours of court time to put their case and rebut the other side's.

If Apple prevails, the costs to Samsung could reach $2 billion. Apple's costs, if it lost, are expected to be about $6 million.

"You rarely get from the jury what you ask for, so companies aim high," German patent analyst Florian Müller said. "But in my opinion this is so far above a reasonable level the judge should not have allowed it." However the owner of a patent is under no obligation to license it at any price, unless it is part of a "standards-essential patent" (SEP) class - used in standards such as Wi-Fi or the video encoding system H.264 - in which case licensing at a "fair and reasonable" is obligatory. Neither side has any standards-essential patents at issue in the trial.

The problem, Müller said, is that each smartphone has thousands of patented ideas in it; Apple is challenging just five. Equally, a high proportion of those patents are SEPs, which are typically licensed for fractions of a penny per device.

Throughout the three years of litigation, Samsung's market share has grown. One of every three smartphones sold worldwide last year was a Samsung, now the market leader. Apple, with a typically higher price, was second, with about 15% of the global market. In the US, Samsung is now the provider of about a quarter of all smartphones in use, against 40% for Apple - making Samsung the second-largest smartphone maker there.

Apple claims the following Samsung products now infringe on Apple patents: Admire, Galaxy Nexus, Galaxy Note, Galaxy Note II, Galaxy SII, Galaxy SII Epic 4G Touch, Galaxy SII Skyrocket, Galaxy SIII, Galaxy Tab II 10.1, and Stratosphere.

Samsung claims the following Apple products infringe on Samsung patents: iPhone 4, iPhone 4S, iPhone 5, iPad 2, iPad 3, iPad 4, iPad mini, iPod touch (5th generation), iPod touch (4th generation), and MacBook Pro.

With the San Jose federal courtroom just a 15-minute drive from Apple's Cupertino headquarters, even jury selection can be difficult. In the previous case, several prospective jurors were dismissed because of their ties to the company.

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