Damodaram Sanjivayya National Law University VISAKHAPATNAM

INTELLECTUAL PROPERTY LAW(IPR) Research paper on Global smartphone patent wars.

PRESENTED BY Mithun shashank VIIth Semester ROLL NO: 20092

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ACKNOWLEDGMENT
I have taken efforts in this project. However, it would not have been possible without the kind support and help of Prof.Mathew. for their guidance and constant supervision as well as for providing necessary information regarding the project & also for their support in completing the project.

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List of cases
Apple Inc. v HTC Europe Co. Ltd [2012] EWHC 1789 (Pat) Case No: HC11 C02826 & HC11 C02703 & HC11 C03080 Apple Inc. V. Motorola (German Courts)( citation not found.) Apple Inc. v . Samsung( citation not found.) Samsung Electronics (UK) Ltd v Apple Inc Court of Appeal (Civil Division), 18 October 2012. ( citation not found.) HTC Europe Co Ltd v Apple Inc Chancery Division (Patents Court), 04 July 2012.( citation not found.) Apple Computer Inc v Design Registry Registered Designs Appeal Tribunal, 24 October.( citation not found.) Apple Inc. vs Samsung Electronics.( citation not found.) Apple Inc. vs Samsung Electronics January 5 2012 in the court of Milan. ( citation not found.) Motorola Mobility V. Apple Inc on august 17, 2012 .( citation not found.)

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CONTENTS
INTRODUCTION SOFTWARE PATENTS Standards-Essential patent.(SEPs) What is FRAND AND RAND? Trade Dress patent CONCLUSION pg.no.2 pg.no.3 pg.no.5 Pg.no.6 pg.no.8 pg.no.11

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THE GLOBAL SMART PHONES PATENT WAR

INTRODUCTION

Every new patent is a licence to sue, a patent war is a battle between multinational companies and individuals to secure their patents through litigation. The patent wars have occurred both in past and in the present market in technologies and softwares corporations. The patent war is a global phenomenal in the world markets. The birth of telephone into this world had it patent war, the inventor of telephone Alexander Graham Bell was dragged into a patent war against his rivals, which involved, in just 11 years, 600 lawsuits1. One notable was the case with ELISHA GRAY also credited with inventing telephone2. In the current global market the smartphone patent war started in late 2000s.According to PC Magazine published on 6 august 2012 Apple Inc. brought the patent wars to the smartphones market by its desire to go thermonuclear on the major technology companies in the mobile market3 The stakeholder of the smartphone war are Apple Inc., Google, Samsung , Mircosoft, Nokia, Motorola, and HTC among others and the costumers. Through the course of the paper I will give you the various patent litigations fought between these companies.

1 2 3

The Worldwide History of Telecommunications. John Wiley & Sons. pp. 176177.

http://en.wikipedia.org/wiki/Patent_war http://www.pcmag.com/article2/0,2817,2399098,00.asp Pg No.5

In the smartphones patent wars all the companies sue on the following infringement of patents. 1. Software patents. 2. Standards-Essential patent. 3. Trade Dress patent4.

SOFTWARE PATENTS. A software patent has been defined by the Foundation for a Free information infrastructure (FFII) as being a "patent on any performance of a computer or a mobile realised by means of a computer programme"5 in my words Software patents are mostly code, but have some physical outcome and on what the mobiles are built. The term software patents is a little bit of a misnomer since in general, it is not the software that is patented, but the underlying method or algorithmic means of accomplishing an end result.6 In different parts of the world the patent laws are different in the European nations you cant patent a software as such, but you can patent software which achieves a technical effect. In a noted case law where Apple has been able to patent slide-to-unlock to some though not universal effect in Europe .The slide to unlock has a physical effect of allowing you to interact usefully with the rest of the screen.7 In the Apple Inc. v HTC Europe Co. Ltd8 in the case where apple sued HTC for the infringement of the slide t o unlock
http://www.guardian.co.uk/technology/2012/oct/22/smartphone-patentwars-explained?newsfeed=true
4 5 6 7

"The Gauss Project". FFII. Retrieved 2007-05-30.

http://bioinformatics.oxfordjournals.org/content/22/13/1543.full http://www.guardian.co.uk/technology/2012/oct/22/smartphone-patentwars-explained?newsfeed=true Pg No.6

which is a software patent where the courts said that You cant be sued for the fact that some code exists, but once you embody it in something a smartphone, say, or a tablet and make it do something, you might be infringing on the invention that is embodied by another piece of code.9

Apple Inc. V. Motorola (German Courts) For a similar infringement where MOTOROLO was sued by Apple in the German courts, where the judgement given makes Apples first patent victory over Motorola in any any part of the world.10 The patent in question EP1964022 - relates to the process of unlocking a smartphone by simply swiping a finger from one area of the screen to another.11 This is why, for example, modern versions of Android's unlock system let you pull a lock icon in pretty much any direction. There's no line to even hint about how you should drag the lock - only a target to show where to aim for. That cleverly lies outside the patented "slide-to-unlock" functionality. Then speaking about the new dispute which entered the court room in July 2011 Apple Inc. v . Samsung In which apple put forth in course of the argument the software patents infringed by Samsung. 1.utility Patent 163: Enlarging documents by tapping the screen 2.Utility Patent 381: 'Bounce-back' feature when scrolling beyond the edge of a page. This is also known as the rubber band patent. 3.Utility Patent 915: Distinguishes between single-touch and multi-touch gestures. An example of this would be pinch to zoom.12

Neutral Citation Number: [2012] EWHC 1789 (Pat) Case No: HC11 C02826 & HC11 C02703 & HC11 C03080 9 http://www.forbes.com/sites/timworstall/2012/10/22/all-you-need-to-knowabout-the-apple-google-samsung-motorola-patent-wars/ 10 http://www.bbc.co.uk/news/technology-17058508 11 http://www.bbc.co.uk/news/technology-17058508 12 http://www.businessinsider.com/apple-versus-samsung-2012-8?op=1
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All the three utility patents which Apple questioned come under the software infringement patents only. Below are few references of the latest smartphone software patent infringement cases. Samsung Electronics (UK) Ltd v Apple Inc Court of Appeal (Civil Division), 18 October 2012.13 HTC Europe Co Ltd v Apple Inc Chancery Division (Patents Court), 04 July 201214 Apple Computer Inc v Design Registry Registered Designs Appeal Tribunal, 24 October15 Again coming back to the term software patents which are also known as computer implemented programs is always a debate in the intellectual property world, few feel that patenting a software is restriction in development of the software so is the principle followed in the European nations where patenting a software is not easy. Standards-Essential patent.(SEPs) The standard Essential patents are the key to understand many of the patent wars going on. The term essential patent is usually defined as patent that contain one or more claims that are unavoidable and necessarily infringed by the implementation of a specification or standard for which they are essential.16 The patents of mobile phones are set for standardising to set the technical standards to ensure that different manufactures products are compatible. The GSM,GPRS,EDGE,3G and 4G and digital photography if the device is camera enabled are the few standards essentials patents.
13

[2012] EWCA Civ 1339; Official

Transcript(http://login.westlawindia.com/maf/wlin/app/search/navigate?page

=2&crumb-action=replace&crumblabel=Search+Results&sortid=publication&context=12)
[2012] EWHC 1789 (Pat); Official Transcript [2002] E.C.D.R. 19; [2002] F.S.R. 38; [2002] Masons C.L.R. 21; (2002) 25(2) I.P.D. 25015; Official Transcript
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http://www.managingip.com/Article/2251048/Licensing-essential-patents-in-the-telecomsindustry.html Pg No.8

A question arises who and how do they standardise something like this ? In European nations a standard approval process run by the experts European Telecommunications standards institute ETSI. Approves a new standard and various organisations in various countries. What is FRAND AND RAND? "Fair, Reasonable and non-Discriminatory" (FRAND) and in US it is RAND, once the patents that are essential to the standard have been identified the relevant patentees are required to give a commitment to licence those patents to anyone who wants to implement the standard on a "fair, reasonable and nondiscriminatory" (FRAND) basis.17 As explained the basics of SEPs why are the SEPs a reason for patent wars in the global market? Having an SEP is like having a lottery ticket coz everyone has to licence your patent, if a company x want the new WI-FI wireless technology an standard essential patent which is patented by company Y then company Y can licence it to company x at a decided price, like APPLE and FIREWIRE .providing something that is going to be a part of mobile phone the companies are going to have millions and millions of licensors. When a company inputs and SEP in its device without licencing from the company which holds the patent leads to patent infringement,which similarly happened in the Apple Inc. vs Samsung Electronics.

Apple Inc. vs Samsung Electronics. In the case where the judgement was given in favour of Apple Inc. over its claim that Samsung infringed over six patents of Apple products.

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http://www.guardian.co.uk/technology/2012/oct/22/smartphone-patent-warsexplained?newsfeed=true Pg No.9

Samsung Electronic in its appeal would challenge iPhone 5 ban over 4G/LTE standard-essential patents. In which Samsung electronics holds 12% of all 4G/LTE patents where it has not licenced its patents according to FRAND and to sue Apple for infringement of SEPs.18 Apple Inc. vs Samsung Electronics. In the case case where on January 5 2012 in the court of Milan Samsung Electronics claimed to be the owner of serval essential patents 3G/UMts and requested the court of Milan to grant a preliminary injunction against the Apple Inc. for allegedly infringing the standards essentials patents at issue.19 In Ericsson and GSM/EDGE case In which the Ericsson held essentials patents in Italy claiming GSM/EDGE technology. Ericsson claimed for injunction on seizure against the Italian company ONDA before the court of Trieste. In this case where the defendant ONDA CO. was an previously licensee of Ericsson essential patents, and was allegedly still negotiating the renewal of licence before the pending proceedings, it conforms that its willingness to negotiate the new licence under FRANDA terms. Through a real offer tro Ericsson.20 Google Inc.'s Motorola Mobility V. Apple Inc. Where Google sued Apple Inc. on august 17, 2012 for infringement of seven of its standard essential patents. The patents relate to Apple devices including the iPhone, iPad and iPod Touch, the company is seeking a ban on the import of those products made overseas.21 Nokia Electronics vs. Apple Inc.
http://www.fosspatents.com/2012/09/where-on-earth-could-samsung-getiphone.html 19 http://www.managingip.com/Article/3082465/The-cases-changingenforceability-of-standard-essential-patents-in-Italy.html 20 http://www.managingip.com/Article/3082465/The-cases-changingenforceability-of-standard-essential-patents-in-Italy.html
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http://online.wsj.com/article/SB100008723963904445085045775958240471 84552.html Pg No.10

Nokia, once the world's biggest mobile phone maker sued Apple on October 22,2009 over infringement of 10 patents which also involved SEPs. The involved SEPs were wireless data, speech coding, security and encryption. The breaches applied to all models of the iphone science the launch in 2007. The court said Nokia Corp had agreements with about 40 firms including most mobile phone handset makers allowing them to use the firm's technology, but that Apple had not signed an agreement. "The basic principle in the mobile industry is that those companies who contribute in technology development to establish standards create intellectual property, which others then need to compensate for,"22

Trade Dress patent Registered designs or Design Patents or The Trade Dress patent is roughly what something looks like rather than what it dose, It is an nonfunctional. These are different from regular patents but are a from of Intellectual property and these are Tangible Things. In the United States, a design patent is a patent granted on the ornamental design of a functional item. Design patents are a type of industrial design right. Ornamental designs of jewelry, furniture, beverage containers and computer icons are examples of objects that are covered by design patents.23 Trade Dress is not really a "subset" of trademark law. It is trademark law. Lanham Act Section 43 allows protection against any use of a mark or device that might confuse as to origin of goods or sponsorship. Trade dress is that device, so if the trade dress causes confusion, then it will generally be actionable. But the story doesn't end there. You must have distinctiveness.24

The trade depress patents are very important part in the smartphones patents wars as these relatively are easy to file, the design patents dont have long complex claims, they are drawings and the end result with the overall look of the product.
http://news.bbc.co.uk/2/hi/business/8321058.stm http://en.wikipedia.org/wiki/Design_patent 24 http://www.guardian.co.uk/technology/2012/oct/22/smartphone-patentwars-explained?newsfeed=true
22 23

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Apple has argued in US and English courts that its iPhone and iPad designs have registered designs, specifically for elements including its rounded corners. That is, it argues that, for example, the rounded corners - at a particular radius are visually distinctive features that were unusual when they first introduced them25. Anybody can understand what an iPhone or iPad looks like and that the look is kinda distinctive. Apple Inc. showed its Iphone boxes and packing as part of it trade dress. who would have thought these little out of the experience details could be intellectual property. Apple Inc. which believe in the End to End service to the costumer showed the world the importance of trade dress, as they fetch money as the award of $ 1.05 billion damages for the infringement of design patents and trade dress. There are a list of cases where the smart phone companies sued each oother over design or trade dress infringement. In Apple Inc. v. Samsung Electronics. Apple sued Samsung with infringement of three Design patents. Design Patent 087: Ornamental design of the iPhone (white color), Apple has patented the fundamental design and shape of the iPhone. This means that its rectangular shape and f orm belong to Apple. Samsung violated this design patent with 12 phone models. Design Patent 677: Ornamental design of the iPhone (black color) , In addition to patenting the shape and color of the white iPhone, Apple also patented the shape and color of its black iPhone. Design Patent 305: Rounded square icons on interface, Samsung's phone icons copied Apple's with 13 phone models. They were the same in their design and shape.26

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https://docs.google.com/viewer?a=v&q=cache:dz4ucIP3SRYJ:64.237.99.10 7/media/pnc/7/media.827.pdf+design+patent+trade+dress&hl=en&gl=in&pi d=bl&srcid=ADGEEShNbfGIy0nbMHTuI12nrUhwgfVqzUvfMLpUr-aURUrQXtXIJ6Gbmyfch3XMKWXfI3VNldL8Ug_5NN6wLhjPOIapZVXz2cLyzY8m 8GmDF_GtQIjhh3KDrTpmO5rZsPa0T5P7DtL&sig=AHIEtbRu37jQu12rv0WAK CJg1Wq66jybag 26 http://www.businessinsider.com/apple-versus-samsung-2012-8?op=1 Pg No.12

The Apple v Samsung case was one which made history in showing the importance of trade dress. Like were many case in past which had court room filled with trade dress infringement. In 2011 Apple sues Samsung in south Korea in five trade dress patents, in japan 2 patents and in Germany 3 patent.27 2011, Jul 01: Apple files for preliminary injunction against 4 Samsung products: Infuse 4G, Galaxy S 4G, Droid Charge, and Galaxy Tab 10.1 based on 3 design patents28. 011, Aug 23: Microsoft files a complaint with the ITC requesting a ban on several key Motorola smartphones and devices in the USA based on infringements of 7 patents of design.29 The above are a few case which and there are many in the trade dress infringement patents.

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http://edition.cnn.com/2011/TECH/innovation/04/19/apple.samsung.lawsuit.wired/ http://www.fosspatents.com/2011/07/apple-files-motion-for-preliminary.html http://techcrunch.com/2011/08/23/microsoft-asks-for-an-import-ban-on-motorola-smartphones/ Pg No.13

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CONCLUSION

The smartphones in our hands are a marvel on innovations but they are a litigation magnet, the companies in the business are spending billions buying patents and hundreds of millions suing one another. This shows how dysfunctional the patent system has become but in the end the consumers are the losers. The use of patents in the smartphone showed a system in chaos. With the major companies moving around the courts in fight for their battle in the patent war. The companies are using their patents as both defensive and offensive weapons as the granting of patents in the government offices as become too easy, where a question arises could the patenting fundamentals be right? With so many patents battles being hung in the court rooms throughout the world and verdicts being ruled in favour of one company is asset back in the innovation on technology and its development impacting on the consumers of the product, and with the current battles one can only see the companies fight their rivals through courts but not through the market competition. With so many patent litigations pending in the courts I suggest why not a separate tribunal setup for resolving the dispute, tribulation for patent wars will give the global companies a platform where there can be alternative ways in resolving the dispute by the means of arbitration, consolation and etc. At the end of the paper a question arses when are the companies going to stop? Sadly what I feel is this is like being an ancient Greek. Shown in the movies they imagined there were multiple gods who were often at war with each other, leaving mere mortals as spectators. Thats the situation we find ourselves in. However I fell the ultimate winners are the lawyers who make gold out of it.

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http://en.wikipedia.org/wiki/Smartphone_wars http://www.afr.com/p/technology/un_convenes_smartphone_patent_war_QjrJS ZER9JODpqFejQHmUJ http://www.guardian.co.uk/technology/2012/oct/22/smartphone-patent-warsexplained?newsfeed=true http://en.wikipedia.org/wiki/Patent_war see also in Wikipedia.

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http://www.eetimes.com/electronics-news/4394921/7-reasons-to-file-design-patents--tradedresses http://online.wsj.com/article/SB10000872396390444508504577595824047184552.html http://economictimes.indiatimes.com/tech/software/google-cant-patent-injunction-againstmicrosoft-in-germany-us-court-ruling/articleshow/16597458.cms

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