FOSS Patents: Apple’s deliberate approach allows Samsung to launch the Galaxy S III on time

Late on Monday, Judge Lucy Koh responded to a joint Apple-Samsung proposal for a nearest-term schedule regarding the S III. The agreement that the parties had reached on the next steps reflected caution on both sides. Samsung apparently tried to be reasonably cooperative, while Apple wanted to take Samsung’s claim of technical differences between the Galaxy Nexus and S III phones seriously. But Judge Koh had told Apple to notify by June 8 (last Friday) whether or not it wanted to file for a temporary restraining order (TRO). Judge Koh takes Apple’s stipulation with Samsung for a “no TRO”.

The problem that Apple faced is that a TRO motion would have delayed the process in its first California lawsuit against Samsung. Judge Koh would have postponed a hearing scheduled for June 21, and as a result, the July 30 trial date could also have slipped.

It’s easy to understand that Apple didn’t want to act rashly against the S III. The worst outcome would have been for Apple to fail with a TRO motion against the S III due to technical differences between the Nexus and the S III and to see the summer trial postponed.

Judge Koh’s Monday order also announces that “[a]n order on the pending motion for preliminary injunction [the one against the Nexus] will issue shortly”, but I’m not sure what she means by “shortly”. At the end of a September 2011 hearing on Apple’s first motion for a preliminary injunction she also indicated that a decision would come down not long after — and it took almost three months. I don’t think this here will take three months, or even two, but I don’t think “shortly” means this week.

For Apple, the ruling on the Nexus motion will provide some indication as to its chances of a quick win against the S III. If one or two of the patents it wanted to assert against the S III are deemed valid and infringed, then it all comes down to whether there really are outcome-determinative technical differences between the Nexus’s and the S III’s implementation of the claimed inventions. If, however, Apple doesn’t prevail on at least one of those patents with respect to the Nexus, then it would be unlikely to do so against the S III, given that Samsung was well aware of Apple’s enforcement of those patents when it made technical decisions on the S III.

Since it’s unclear exactly when Judge Koh will rule on the Nexus motion, Apple wouldn’t know by the time of filing a motion against the S III whether that motion turns out to have been a non-starter from the outset only a few hours, days or weeks later. If this happened very quickly, Apple could at least withdraw the S III motion and keep the schedule for the summer trial. But if it happened after the court reschedules the first lawsuit, then it’s possible that even a withdrawal of the motion doesn’t reinstate the original schedule.

Apple also faces a tough choice with respect to the patents and other intellectual property rights it dropped from the first California litigation. Judge Koh allowed reassertion. If Apple reasserts immediately, there’s a risk of those claims being added to its second California litigation against Samsung. That case is on a relatively slow schedule anyway, and if it becomes inflated, it will only get slower, and pressure on Apple to drop claims from that litigation will grow. Apple could bring a second ITC complaint against Samsung over those intellectual property rights, but the ITC has become a difficult forum for Apple’s purposes and an ITC judge would have to familiarize himself with the asserted IPRs while Judge Koh already knows those assets fairly well.

All of this uncertainty is in Samsung’s and the court’s interest, but not in Apple’s. The court doesn’t want to encourage Apple to file too many complaints and motions. Samsung wants to continue to sell its existing products and to launch new ones.

No one can blame Apple’s decision makers for acting responsibly and proceeding deliberately. The United States is a difficult jurisdiction to get quick decisions, and to have multiple lawsuits pending in parallel. The courts can transfer and consolidate cases, and thereby cause delay. This worked to Apple’s advantage against Google/Motorola in the Southern District of Florida, but it’s a problem in other contexts. By contrast, Apple could bring any number of lawsuits in different German regional courts, and as long as there aren’t any entirely duplicative claims (asserting the very same patent against the very same defendant), everything will progress in parallel.

For Samsung it’s definitely a win that it can go ahead and launch the S III in the United States. Apple’s attempt to block it even provided some additional publicity, though pre-orders for the S III were huge anyway. It looks like the S III will be wildly successful all over the world. While Apple continues to innovate, it will really need the iPhone 5 to keep Samsung in check. But if Apple wins a preliminary injunction against the Nexus over patents that the S III implements in more or less the same manner, things could fall into place rather quickly. Also, if Apple enforces any patents against older Samsung products at the summer trial, it can then ask for quick decisions against the S III with respect to the prevailing patents. And the situation in the U.S. may lead Apple to file a number of lawsuits against the S III in some other jurisdictions.

Samsung can run, but it can’t hide forever. Its ability to launch the S III on time is a tactical win, not a strategic one.

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