T-Mobile tells Samsung: "You've got a friend in me."  (Source: Pixar/Walt Disney Pictures)
Carrier files a "friend of the court" brief in case against Samsung

Deutsche Telekom AG's (ETR:DTE) T-Mobile USA caused a stir on Wednesday when it filed an amicus curiae brief in Northern California District Court, on behalf of Samsung Electronics Comp., Ltd. (SEO 005930) who is facing an intellectual property suit from Apple, Inc. (AAPL).

I. The Growing Divide Between Apple and Samsung

There's no love lost between Apple and Samsung.  Apple is currently narrowly ahead of Samsung in global sales, but Samsung is growing faster, with some predicting it to take control of the top smartphone sales spot this year.  And in the tablet market, Samsung is the only company giving serious chase to Apple's iPad in sales.

In an effort to stifle its rival, Apple has sued it [1][2][3][4][5], claiming Samsung's tablets and smartphones are too much like its patented device designs (iPhone: U.S. Design Patents D618,677 and D593,087; iPad: U.S. Design Patent D504,889).  That argument didn't fly in a Netherlands court who rejected Apple's design claims (while siding with Apple on a single minor technology patent infringement claim).  But a court in Germany, Europe's third largest tablet market, sided with Apple ruling that Samsung's designs did violate Apple's design IP.  Samsung's tablets were summarily banned from sale in Germany.

In the U.S. Apple is hoping for a similar outcome to the German decision.  It's filed a civil suit in its local district federal court and has filed a complaint with the U.S. International Trade Commission to block U.S. imports of Samsung Android tablets and smart phones.  As Samsung -- like Apple -- imports all its handsets from Asia, this would amount to a ban on sales.

II. Amicus Curiae Briefs Could Play Crucial Role at Hearing

Judge Lucy H. Koh is set to hold a hearing on the case -- 11-cv-01846-LHK "Apple Inc. v. Samsung Electronics Co. Ltd. et al" -- on Thur. Oct. 13, at 1:30 p.m.  In hopes of convincing Judge Koh to forgo a preliminary injunction banning imports, Verizon Communications, Inc. (VZ) filed an amicus curiae brief on Tuesday.

With T-Mobile's brief, that makes two amicus curiae briefs in one case.  That's unusual for a federal court IP dispute and indicative of the high stakes in this patent case.  Also interesting is the content of the brief itself.  Like the Verizon brief, the T-Mobile brief asserts that the company has strong respect for intellectual property, writing, "T-Mobile respects intellectual property rights and believes that owners of intellectual property deserve their day in court."

11-09-28 Apple v Samsung T-Mobile Proposed Amicus Brief

But the brief reminds the Judge:

However, “a preliminary injunction is a drastic and extraordinary remedy that is not to be routinely granted.” Intel Corp. v. ULSI Sys. Tech., Inc., 995 F.2d 1566, 1568 (Fed.Cir. 1993). When considering whether to issue an injunction, courts must “pay particular regard forthe public consequences in employing the extraordinary remedy of injunction.” Weinberger v. Romero-Barcelo, 456 U.S. 305, 312 (1982)."

The language mirrors that of the Verizon brief.  Both companies are basically saying that they understand that the dispute will play out based on the court's opinion of whether Samsung infringed.  But they're arguing that until a final ruling is passed down, banning handset sales would damage their holiday sales, and leave them with key gaps in their device lineup, disenfranchising customers.

Apple responded yesterday to the Verizon brief, arguing that it should be excluded for being filed too late.  It seems unlikely that this bid by Apple will see success, as there's no restrictions on the timing of amicus curiae filings on a federal circuit court level.

III. Brief Could Lead to Apple Denying T-Mobile iPhone 5

T-Mobile counterstrike against Apple's anti-Android blitzkrieg could impact its bottom line.  Apple was reportedly in negotiations to release its fifth generation iPhone on T-Mobile's HSPA+ network -- now those plans may be in jeopardy.

On the other hand, the Samsung Galaxy S smartphone and Galaxy Tab 10.1 tablet have been selling very well for T-Mobile, and seeing them banned could be worse for the bottom line that not getting the fifth-gen iPhone.  In short, T-Mobile appears to have chosen what it feels is the lesser of two evils, financially, in choosing to support Samsung and oppose Apple.

If Verizon and T-Mobile have their way, Samsung will be free to continue to sell handsets in the U.S. until the July 30, 2012 trial, pending appeal or settlement.

In related news Samsung yesterday announced it had entered into a major cross-licensing deal with Microsoft, Corp. (MSFT) which reportedly involves paying a license fee of $10 or more per Android handset sold.

"I modded down, down, down, and the flames went higher." -- Sven Olsen

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