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But Apple admits Samsung deserves some time to roll out workarounds, and admits that workarounds won't be hard

Apple, Inc. (AAPL) -- the world's second largest smartphone maker -- was in court late last week demanding a ban on some of its competitors older products, after a jury found the world's largest smartphone maker -- Samsung Electronics Comp., Ltd. (KRX:005930) (KRX:005935) -- guilty of infringing on three Apple patents.  Apple claimed the ban shouldn't prevent its Samsung from competing in the market.
 
I. The Ban List
 
While the request bans are largely on two-year-old devices that are already in the process of being phased out of U.S. carriers' catalogs, there was some interesting language in Apple's request that some fear could give Apple a blank check to ban current Samsung devices as well; before it even takes its rival to court.

14-05-24 Public Version of Apple Motion for Permanent Injunction Against Samsung by Florian Mueller



The filing for a permanent injunction (a permanent ban on imports and sales) explicitly named nine Samsung smartphones:
  • Smartphones
    • Variants of the Original Galaxy S (June 2010)
      • Stratosphere
        • Carriers (U.S.): Verizon Communications Inc.'s (VZ) Verizon Wireless
    • Variants of the Galaxy S II
      • (Unspecified Base Model)

        Galaxy S II
         
      • Epic 4G Touch
        • Carriers (U.S.): Sprint Corp. (S)
      • Skyrocket
        • Carriers (U.S.): AT&T, Inc. (T)
    • Variants of the Galaxy S III (May 2011)
      • (Unspecified Base Model)


         
    • Other
      • Admire
        • Key Specs: 480x320 pixel display; 3G
        • Release: Aug. 2011
        • Carriers (U.S.): MetroPCS
      • Galaxy Nexus
        • Key Specs: 720p display; LTE
        • Release: Nov. 2011
        • The third gen. Nexus smartphone
        • Carriers (U.S.): Sprint, Google Inc. (GOOG) Play Store (discontinued)
           
  • Phablets
The biggest blow to Samsung would probably be the Galaxy Note II ban as those devices are still volume sellers.  Many of the devices in question such as the Stratosphere and Galaxy Nexus have been more or less discontinued in the U.S., but a ban could prevent the resale of existing devices, on an official basis, at least.
 
II. A Blank Check to Ban Future Infringing Devices?  Sort of.
 
The more interesting part of Apple's filing is this bit:

[Apple requests that the order refer to] software or code capable of implementing any Infringing Feature, and/or any feature not more than colorably different therefrom.

That bit -- which appears to be redacted in the published court filing, but was reported by FOSS Patents' Florian Mueller -- could allow Apple to ban current and future devices like the Galaxy S4 and S5, via rapid court motions, without the need for a trial that could draw out for years.  Of course it only would apply to the three features in the case -- autocorrect, the link-generating algorithm, and the slide-to-unlock code.
 
Apple says it takes "huge risks" and commits to "significant investment" to come up with inventions like Slide to Unlock which amounts to an animated deadbolt across the screen.  It should be noted, however, that Apple actually has one of the smallest research and development budgets of any smartphone maker.

Slide to unlock

Apple was also found to be "stealing" the technology used to power FaceTime from Samsung, but the jury ruled that those infringements were accidental, while Samsung's were willful.  The ruling that the infringement was accidental shrinks Samsung's damages and could make it a little harder to seek permanent injunctions on Apple's older devices. However, it could maneuver as Apple did to ask the court for a blank check permission to file motions to quickly ban newer Apple devices as well.  As nearly all Apple devices use the feature (FaceTime is based on a patent Samsung bought in 2011 from Hitachi Ltd.  (TYO:6501)), virtually every Apple mobile device would be at risk.
 
III. Apple Admits Key Feature in Case Would Take a Single Engineer Only a Day to Implement
 
The pair is reportedly in settlement talks.  Google and Apple recently settled their long-standing set of lawsuits and countersuits.  That settlement only involved direct disputes between Apple and Google, not disputes between Apple and other Android OEMs such as Samsung.
 
Still, signs that Apple may be growing weary of its legal campaign can be found in the court filing.  For example, Apple's lawyers have offered Samsung a "sunset period" to implement workarounds to the features in question, in order to avoid sales bans.
 
It says Samsung has a keyboard that does not infringe on the autocorrect patent.  The reason why that keyboard doesn't infringe is because it was first included with the Galaxy Dart, which was commercially released before Apple was granted its patent on the feature.
 

Fuzzy Android

Likewise it makes the interesting move of quoting Samsung's expert witness who said that a workaround to data link patent to implement nearly identical features "shouldn’t take more than a day for an engineer".  Quoting that seems a questionable move, as it brings into question Apple's valuation.
 
Should Apple be awarded tens of millions in damages for a simple software algorithm that would a skilled engineer under a day to make?
 
Many would say no, but the jury has already said yes.  Nonetheless, Apple's decision to quote that comment could be used against it in future filings.

Source: Scribd [Apple via Foss Patents]





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