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Samsung Galaxy Tab vs Apple iPad: the tablet patent wars hit Australia

The mobile patent wars, it seems, have reached Australian shores. On Monday, representatives of Apple and Samsung were in the Australian Federal Court, fighting it out over Samsung’s Galaxy Tab tablet…

The battles currently being waged raise serious questions about patent law. Yonhap/AAPIMAGE

The mobile patent wars, it seems, have reached Australian shores.

On Monday, representatives of Apple and Samsung were in the Australian Federal Court, fighting it out over Samsung’s Galaxy Tab tablet computer.

Apple is alleging infringement of a series of Australian patents – mainly related to gesture-sensitive touch screens (see list below) – as well as, it seems, breaches of consumer protection law (by misleading people into thinking that the Galaxy Tab is the iPad, or is licensed by Apple).

The hearing on Monday ended with Samsung undertaking not to sell its US Galaxy Tab 10.1 in Australia (without permission from Apple first), and to give Apple, seven days before launch, samples of an allegedly different “Australian version” of their tablet. The parties are back in court for a procedural hearing at the end of this month.

But this is far from an isolated battle. It’s a very small part of a global battle over patents in the mobile space. Apple and Samsung are currently involved in litigation in at least nine other countries, and these fights aren’t all one-way: in some, Samsung has countersued Apple for infringing Samsung’s patents.

Apple is also fighting with HTC and Nokia.

Microsoft, too, has been filing patent infringement suits against companies using Google’s mobile system, Android, and observers have commented that Google’s recent patent acquisitions have a lot to do with these battles.

Just recently too, all the big companies in this space had a battle for a portfolio of 6,000 wireless patents previously owned by communications equipment manufacturer, Nortel.

The reasons for the breakout of patent litigation in the mobile space aren’t all that hard to understand.

Historically, the big mobile phone companies (Nokia, Ericsson etc.) had plenty of patents, but ended up licensing each others’ technology.

The entry of Google, via the Android system, and Apple into this space must have been a massive disruption to these comfortable arrangements. And the result has been war.

It is entirely possible – even likely – that the Federal Court will never get to rule on the case – either because the parties settle all the litigation, or because rulings by courts elsewhere lead to a settlement of the remaining cases.

In a way, that’s a shame, because the proceedings raise some interesting legal and policy questions.

The key legal question is whether these patents are valid – whether Apple can really claim that the inventions described are really new and inventive across the full scope of the claims.

Even once the Australian Patent Office issues a patent, it is still possible for someone sued for infringement, such as Samsung, to allege the patent shouldn’t have been granted.

And the breadth of the monopoly Apple is claiming, particularly in patent 2007286532, is breathtaking. On my quick reading, that patent seems to cover most commands given using more than one finger on a touchscreen of any computing device (mobile phone, tablet, or anything else). Think “pinch to zoom” and everything else.

I’d like to think Apple won’t be able to maintain a claim that broad, but in patent law, you never know – it all depends on what existed before the date of the patent.

The policy questions raised by this case – and all its foreign cousins – are whether the patent system is encouraging innovation in software and mobile technologies, and whether the costs these patents have for competition are just getting too high.

What if we were to tote up all the legal fees and expenses, the costs in court time and the diversion of efforts away from innovation and towards litigation, the costs in getting the patents in the first place, and fighting over them worldwide, and buying the patents of defunct companies?

Do you think we’d be convinced the costs are worth it? Apple and Samsung are big enough and ugly enough to take care of themselves in this kind of battle. But I do worry about the little guys. And I worry about the impact on competition.

If the case settles, we’ll forget these issues for a while – we’ll get our Galaxy Tabs and all the rest. But the patents will stay with us until the mid 2020s.


The Australian patents Apple alleges Samsung infringed are:

Innovation Patents

  • 2008100283: List scrolling and document translation, scaling, and rotation on a touch-screen display
  • 2008100372: Electronic device for photo management
  • 2009100820: Unlocking a device by performing gestures on an unlock image
  • 2008100419: Unlocking a device by performing gestures on an unlock image
  • 2008101171: Portable electronic device for imaged-based browsing of contacts

Standard Patents

  • 2008201540: List scrolling and document translation, scaling, and rotation on a touch-screen display
  • 2005246219: Multipoint touchscreen
  • 2007283771: Portable electronic device for photo management
  • 2009200366: List scrolling and document translation, scaling, and rotation on a touch-screen display
  • 2007286532: Touch screen device, method and graphical user interface for determining commands by applying heuristics

Related: Read the blog post by Google’s Senior Vice President and Chief Legal Officer David Drummond, in which he argues that the patent wars are part of a “hostile, organised campaign” to push up the prices of Android smartphones and tablets.

Should companies be able to patent ideas such as those listed above? Leave your comments below

Join the conversation

24 Comments sorted by

  1. Paul Richards
    Paul Richards is a Friend of The Conversation.

    Like it or not, the patent game is played and deep pockets is essential.
    Patent laws work well for rapidly introduced products, but fail when it comes to keeping corporate secrets.

    During the Mac's early history Apple generally refused to adopt prevailing industry standards for hardware, instead creating their own. Apple learned the hard way when it came to patents and industry standards, as it employed a contractor called Microsoft to write a word processor for it's newly designed mouse platform / GUI in the early eighties. History shows, just from this single multi billion dollar business and culture of emulation that developed, using a legal protection of intellectual property is essential.

    It is hardly a surprise that Apple follows up on patents with efficiency and deploys secrecy as a part of it's corporate culture?

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    1. Kimberlee Weatherall

      Associate Professor of Law at University of Sydney

      In reply to Paul Richards

      Thanks Paul for the comment. I don't think it is at all surprising that Apple uses the tools that the law provides to gain every advantage it can. That's sensible corporate strategy. And of course Samsung uses similar weapons in return - its own IP rights.

      My query is whether the law should be giving such strong tools. Is it sensible that a company can get a 20 year monopoly (however questionable/challengeable) on something like 'two finger gestures on a touchscreen'? Are strong, broad monopolies…

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    2. Paul Richards
      Paul Richards is a Friend of The Conversation.

      In reply to Kimberlee Weatherall

      You are right in law they could be addressed differently, and most certainly should. However we have embraced multinational corporatism politically, socially and in law.

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    3. Paul Richards
      Paul Richards is a Friend of The Conversation.

      In reply to Kimberlee Weatherall

      Please don't let me discourage you, it is entirely appropriate to confront this harsh reality and challenge the 'business as usual' model. Raising awareness in this forum and challenging the concept of self sacrifice for the corporate group is important.

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    4. Paula Chavez

      activist

      In reply to Paul Richards

      It would nice if the effort at finding what is wrong with the patent system would be matched by an effort at how can we use the patent system to promote Australian business, for example in solutions for clean energy production - one that would use the innovative talents of Australia to wean itself off of a steady diet of fossil fuel consumption. There is a heap of research going on in Australia around solar thermal concentrators (BZE and at CSIRO from what I can tell). Using the patent system to rope in some IP rights that can be promoted world wide could help grow a new industry in Australia.

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    5. Kimberlee Weatherall

      Associate Professor of Law at University of Sydney

      In reply to Paula Chavez

      You'll find that there is effort on both issues. Both *are* important.

      Postgrad courses, esp in business schools in Australia, *do* look at these issues of IP commercialisation and IP strategy. And businesses, consultants, and lawyers should be doing this too. You can't solve everything in the education field.

      Think about it from a govt perspective too. Should govt focus on assisting businesses to work the current system, or on adjusting the current system to make it better? I'd say both are important, but I'm happy to acknowledge people might take a different view.

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    6. Paula Chavez

      activist

      In reply to Kimberlee Weatherall

      I offer a course on writing draft patent applications, and in particular, claim sets, which is in response to a need that I see for better utilisation of the Australian patent system by Australians. Unfortunately, hiring patent attorneys to do all of the writing is too expensive for most businesses, especially startups, and it is my experience that preparing a draft patent application is within the ability of most science/engineering folks. Please see www.patentodyssey.com.au. I'd be interested to know how the government is assisting businesses to work the current system. The Office of Innovation ... has a grant program to hire experts, including patent attorneys. Do you know of any other government assistance? Thanks in advance.

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  2. Paula Chavez

    activist

    In response to your question as to whether companies should be able to patent ideas such as those listed above - my answer is: why not? This article, my guess is not written by a patent expert. To say something like "[a]nd the breadth of the monopoly Apple is claiming, particularly in patent 2007286532, is breathtaking. On my quick reading, that patent seems to cover ..." First of all, there is no quick read of a patent. You cannot learn the breadth of a patent on a quick read. An analysis of…

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    1. Kimberlee Weatherall

      Associate Professor of Law at University of Sydney

      In reply to Paula Chavez

      Thanks Paula.

      I think it's important to point out that I did *not* argue (although if I had had more time, perhaps I could have been more explicit) that the relevant patents are method or software patents that are in the area of 'things that only became patentable recently and controversially'.

      I have no real argument with you on the question of what Australian companies should be doing under current conditions. There is no doubt that companies from elsewhere - including from many of the emerging…

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    2. Kimberlee Weatherall

      Associate Professor of Law at University of Sydney

      In reply to Paula Chavez

      oh, and one more thing re patent prosecution history estoppel. I'm not sure - is the law in Australia on this point as stringent as that in the US? I had thought not, but it's outside my area of expertise.

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    3. Paula Chavez

      activist

      In reply to Kimberlee Weatherall

      Patent History Estoppel may be called something else here - but the process of evaluation of a patent's claims I'm sure would be the same. And if it weren't as stringent, I would then agree with you that simply looking at the face of a patent is all you need to do to determine its breadth, but I seriously doubt that. That you are concerned about the policy of the "broad claims," I can almost guarantee that the claims involving "using more than one finger on a touchscreen of any computing device" is an incremental improvement at best. I wouldn't be to fussed about worrying about "the littler guys. The app developers, the coders and the like," since they are using the platforms of the bigger guys. I would however, be very concerned about the bigger picture - the things that can be changed - that Australian business moves out of living on mining resources and instead begins to promote, protect, and profit from its innovation, and using the patent system is part of that process.

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    1. Paula Chavez

      activist

      In reply to Kimberlee Weatherall

      Google employs 35 patent attorneys in-house - and I'm sure that they are all managing outside patent attorneys. Do their patent attorneys not write "bogus patents?" They are in this game too. Qualcomm has 100 patent attorneys in house and gets $5 per handset sold using CDMA from its over 150 licensees. The CDMA handsets are most likely much less expensive than the Androids. From my cursory perspective, $15 per device doesn't seem so unreasonable to settle the matter, but then I'm not in-house at Google.

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    2. Kimberlee Weatherall

      Associate Professor of Law at University of Sydney

      In reply to Paula Chavez

      Surely no one thinks $15/device is the end of the patent claims.

      And again, I'd draw the distinction. Your focus is on what companies should be doing, taking the existing system as a baseline. That's fine, I have no real argument with you there about what companies should do, given current system, to protect themselves and ensure freedom to operate/compete.

      My main questions/arguments arise at a broader policy level. I look at the current system and I see a hell of a lot of waste and diversion of resources to unproductive activities - like lawsuits and drawing up legal instruments like patents - and away from productive activities - like competing on price and product. And I wonder whether the system can be adjusted to reduce the waste or at least make it less attractive/profitable to focus resources on the legal side of things rather than the innovation side of things.

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    3. Paula Chavez

      activist

      In reply to Kimberlee Weatherall

      Did you know that nearly 2 million patent applications were filed world-wide last year? The broader policy that you are concerned about is only a problem because Australia is such a small player in the global patent system. The biggest problem is that Australians do not use their own patent system to leap into the global patent system, where they could also profit from patent revenues such as those generated by licenses. Patents are a product, only intangible. For example, they are a by-product…

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    4. James Allworth

      Senior Researcher

      In reply to Kimberlee Weatherall

      Kimberlee

      Great post, and great example. Though I think it's a great example for an entirely different reason than the one that you used in your article.

      The reason it's such a good example is because, although you think the patents Apple have are very broad, Apple pretty much did do all the innovation in this domain. While "pinching to zoom" and everything else that the iPhone brought out with it seems obvious now, the whole thing was revolutionary at the time. Google has not brought anything…

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    5. James Allworth

      Senior Researcher

      In reply to Kimberlee Weatherall

      two other things. first of all; i'm not crying too much for google. it appears they got the offer of joining up in the patent consortium:
      http://read.bi/rmpJFG

      second. the galaxy tab is still coming to australia, samsung just agreed to the injunction because it was for a version that wasn't:
      http://ausdroid.net/2011/08/02/samsung-australias-official-comment-on-apples-complaint-to-the-federal-court/

      -- james

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  3. Peter Treloar

    Patent Attorney

    Kimberlee, the situation is even worse as Apple appear to legitimately availed themselves of the Innovation Patent System which allows for the grant of 'obvious' patents (they have no obviousness test).
    This represents an even greater hurdle for Samsung if they try to invalidate an innovation patent. Of course, nobody seems too concerned or motivated as to the overall consequences of having these dangerous tools available.

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    1. Kimberlee Weatherall

      Associate Professor of Law at University of Sydney

      In reply to Peter Treloar

      good point, I hadn't really focused on the innovation patent angle, but you're right - this is one of those downsides of a system that was, of course, *meant* to help the smaller innovators get inexpensive but limited protection.

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  4. Daniel Payne

    logged in via Facebook

    A lot of the problem with patents, both in the tech and the medical/health research fields, appears to be exacerbated by acquisitions. I don't want to argue that an innovator shouldn't be protected against IP theft or infringement, but I don't buy the argument that IP can be "owned", bought and sold. Buying somebody else's patent is not only not innovative, it prevents new innovation to either find a way around the IP, or to extend into new functions.
    Perhaps it's a naive thought, but how much would the problem be addressed by making IP patents non-transferable? Patents would continue to protect the innovator, but the incentive to buy up firms to acquire their patents, or to buy the patents of defunct firms (either to act as a patent troll, or to prevent the patents being used against you) would be removed.
    I do understand that this will never happen, the system is too big and too many people have far too much to lose.

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    1. Paula Chavez

      activist

      In reply to Daniel Payne

      Look into Intellectual Ventures here in Australia - looking to buy up patents from universities if you'd like to get upset about something.

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    2. Kimberlee Weatherall

      Associate Professor of Law at University of Sydney

      In reply to Daniel Payne

      Daniel - interesting thoughts. But one of the problems would be that making patents non-transferable would make certain quite useful business models difficult: for example, a business model applied by Australian companies that develop technology to proof of concept stage then sell it: that is, companies which specialise in the research and development side of things rather than taking products to market.Given the importance of small, innovative start-ups, I'm not sure that the costs of a policy you moot wouldn't outweigh the benefits.

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  5. Stephen Boonstoppel

    logged in via Facebook

    Apple prides itself on design and I have no problem with that. My issue is with patents awarded for some of the design choices.
    Apple users and Apple itself are always claiming their interface is the most intuitively obvious and yet they have patents covering just about every touch screen gesture. My understanding of patent law says that anything that is obvious cannot be patented (a better explanation is given at http://en.wikipedia.org/wiki/Person_having_ordinary_skill_in_the_art). If there is anything intuitive or obvious about the pinch-to-zoom type gesture it was clearly publically demonstrated by Jeff Han in a TED talk in 2006 before the release of any i-phone using the technique.
    There is no way patents such as this should be granted.
    Next thing they will patent are facial expressions.

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