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The Galaxy S (pictured) is outselling Apple's iPhone in Japan, but Apple hopes to change that by banning its competitor from the market.  (Source: Japan Now)

Those tricky devils! Somehow movie makers traveled back in time 37 years to infringe upon Apple's patented iPad design, which it fantasized in 2005, finally figuring out how to produce it commercially five years later.  (Source: Cinerama)
Samsung is outselling Apple, but Apple hopes lawyers will succeed in restricting market selection

Apple, Inc. (AAPL) has a very big problem.  It can't compete with the superior hardware and broader selection of devices running Google Inc.'s (GOOG) Android operating system.  But its large legal staff has devised a clever solution -- it will try to kill Android in court [1][2][3][4][5].

I. In the Court of the Rising Sun

Apple's quest to remove its competitor from the market has now taken it to the "Land of the Rising Sun", Japan.  In Japan, according to market research firm Strategy Analytics, top Android handset maker Samsung Electronics Comp., Ltd.'s (SEO 005930) Galaxy S smartphone has been outselling Apple's iPhone.  But Apple's lawyers have a plot to change that situation.

News broke late yesterday that a couple weeks back Apple filed yet another lawsuit against Samsung, this time seeking to ban Japanese sales of the company's bestselling Galaxy S and Galaxy S II smartphones, as well as the new Galaxy Tab 7.7 tablet.

The new Japanese suit, filed Aug. 23, makes the familiar accusation that Samsung "slavishly" copied Apple's smart phones and tablets.  It seeks 100 million yen ($1.3M USD) in damages and a complete sales ban.  

Apple initiated the court battle, suing Samsung in multiple courts in the U.S., Australia, South Korea, and Europe.  Samsung responded by counter-suing in these regions.  It was in fact Samsung who struck first in Japan, filing suit in April.  Samsung is looking to fight fire with fire and is asking for a ban on iPhone and iPad sales.

Sources we've spoken to close to Samsung indicate that the device maker does not truly wish to restrict consumers selection, rather they hope that a potential sales ban would force Apple to drop its questionable lawsuits out of self-interest and let consumers decide which company's products are victorious.

II. Does Apple Own the Exclusive Right to Make Smart Phones and Tablets?

Apple claims to own exclusive rights to produce any modern smartphone or tablet, claiming ownership of all multi-touch in mobile devices and all thin, rectangular minimalist mobile device designs.

Apple has been granted design patents in many regions that appear to grant it sweeping ownership of minimalist tablet designs.  In short the patents declare Apple to own exclusive rights to making thin rectangular tablets with a minimalist single (homescreen) button design.  

Apple was granted the design patent by the U.S. Patent and Trademark Office in 2005.  Apple would not be able to produce its vision commercially until five years later in 2010.

Similarly, Apple claims to own exclusive rights to develop multi-touch devices.  It was granted a patent on multi-touch in mobile devices, despite the fact that Myron Krueger and the University of Toronto developed and published papers on virtually equivalent technology almost 25 years prior to Apple producing its first multi-touch device (the iPhone).  

III. Outlook for Apple's Plot is Mixed

Apple's plans may be in jeopardy given a recent Netherlands court ruling, the first major decision in the case.  The judge in that case rejected Apple's claims of owning exclusive rights to the tablet design and multi-touch as ridiculous.  He wrote, "There was no violation by Samsung on any of Apple's design or copyright..."

The judge essentially handed Samsung a victory, declaring that it only infringed on one minor patent that dealt with a feature in Android's Gallery application.  The verdict cleared Samsung to continue sales in Netherlands, much to Apple's chagrin.

Apple has succeed in securing temporary sales bans in Germany and Australia.  The Australian case will be decided September 26, while the German case should be decided tomorrow, September 9.

If Apple can't topple Android's top handset and tablet makers with lawsuits its hopes of being the market's top player look bleak.  Reports indicate that Android is outselling Apple nearly 5-to-2 globally, a gap which is widening with every passing month.  

Meanwhile Apple has seen its tablet market share plunge from approximately 94 percent to 61 percent in a year, while Android has risen from 3 percent to 30 percent over the same period.  Most expect Android to soon pass Apple in tablet market share as Apple continues to stick to limited product selection (just a single product in the tablet market, in fact) and a sluggish release schedule (one new design per year).

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Bogus patents?
By W00dmann on 9/8/2011 3:41:44 PM , Rating: 2
Riddle me this: if Apple is being so unfair, and if their patent claims are so ridiculous, then why thus far are courts around the world agreeing and banning Samsung products?

RE: Bogus patents?
By cjohnson2136 on 9/8/2011 3:47:35 PM , Rating: 1
For starters it has only gone to court for 3 countries. 1 of which Apple succeed in an extremely minor patent which Samsung is fixing. The other two countries it has not been ruled in yet. So not sure what you are talking about.

RE: Bogus patents?
By Solandri on 9/8/2011 3:52:24 PM , Rating: 2
Because the decisions so far are predominantly preliminary injunctions - does the product appear to violate the patent/trademark? Samsung wasn't even notified of the Germany injunction until after it happened - the court decided entirely based on (fabricated) evidence Apple presented.

The next step involves actually testing the merits of the case - are the patents/trademarks valid? Everything I've seen thus far, from faked evidence to prior art, says they're not. But you can never predict what a court will decide, so we all wait with bated breath.

RE: Bogus patents?
By gixser on 9/8/2011 5:27:08 PM , Rating: 2
Because the decisions so far are predominantly preliminary injunctions - does the product appear to violate the patent/trademark?

I'm no fan of Apple but the standard for achieving a preliminary injunction, at least in the US, is high. US Courts typically are relunctant to grant preliminary injunctions. I suspect courts in Germany, Australia and the Netherlands share similiar concerns/standards as their US counterparts.

In the US, at least,
...a plaintiff seeking a preliminary injunction “must establish that he is likely to succeed on the merits [i.e. win at trial], that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest
See: and also

My point: Apple has been very successful if it has indeed been granted a preliminary injunction in any jurisdiction. However, I doubt they will achieve the same level of success in US courts.

RE: Bogus patents?
By nocturne_81 on 9/8/2011 6:02:47 PM , Rating: 2
Guess you didn't hear that Apple tried for a preliminary injunction and expedited process here first in their case in front of the ITC courts... And neither was granted.

I don't hold much credence in European courts -- the rulings never make much sense.. The anti-trust charges against MS for offering their free browser on their own operating system, resulting in a $749 million fine -- ridiculous!!

This is like saying that if one company takes over any market share from another company, the first company should be fined for 'unfair' practices; or if you offer a free service that another charges for, they should be able to sue you over lost profits. The other recent anti-trust allegations against Google here and abroad are just as unfounded -- you can't fine a business, for just being a business. Even more ridiculous is the recent HUGE fine imposed on Google by the FDA for merely 'knowingly allowing' Canadian pharmacy websites to advertise on Google's ad services -- how can they be responsible for the content of an ad? Isn't it a much worse practice for an advertising company to deny somebody the right to use their service..?

It seems any time you hear any coverage of an overseas court case, the verdict always results in an extreme 'wtf' moment -- but come to think of it, it's getting just as bad here.

RE: Bogus patents?
By Solandri on 9/8/2011 11:21:34 PM , Rating: 2
You'll notice Apple hasn't gotten an injunction against Samsung in the U.S.

I haven't been following the Australia case, but the Germany injunction was a farce. Apparently the procedure there is for the complaintant (Apple) to bring their case up with a judge. Then the judge decides if a preliminary injunction is warranted. The defendant is not even notified, much less given a chance to defend themselves.

But on the flip side, in exchange for it being so easy to get a preliminary injunction, the complaintant must pay all the defendant's legal fees and economic losses should the case eventually be decided for the defendant. Between the faked photos in Apple's filing, and the design patent being 3 diagrams of a flat slab with rounded corners, I'm pretty sure Apple is going to lose that one.

RE: Bogus patents?
By Uncle on 9/8/2011 5:52:17 PM , Rating: 1
Because the learned judges have to go and catch up on the frivolous apple patents, just to be on the side of caution they will put a hold on the product being marketed. Other then the iphone 5, whats apple got coming out of the woodwork that will revolutionize the phone in the world. Steve can't steal anymore ideas, cause every Tom Dick and Harry got smart and bought all the patents that were available.

RE: Bogus patents?
By dark matter on 9/9/2011 9:12:27 AM , Rating: 2
All that shows is the system is utterly broken if you can patent a rectangle.

Um, TV's for example. They are black rectangles with a single button.

I might patent a square. Or a circle.

why not.

I might even patent the color blue whilst I'm at it.

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