UPDATE: The Galaxy Nexus is already available for sale once again on Google’s Play Store, and ships in 1-2 weeks. This is likely due to the 9th Circuit Court in Washington DC granting a temporary delay in enforcing Apple’s injunction, but could also be due to a software update that has been applied to remove the allegedly copied technology that the injunction was based on. Apple’s iPhone birthday gift of a preliminary injunction banning sales of the Galaxy Nexus in the U.S. may turn out to be a Trojan horse in the long run, since Google itself has now officially stepped into the patent wars between Apple and Samsung. Armed with an impressive array of patents of its own, including those recently acquired from Motorola, Google might be able to tip the scales in Samsung’s favor after Apple’s logic-defying winning streak in the courthouse last week. That said, what is their game plan? What methods are in place to get around the injunction now, and when will we see Galaxy Nexus handsets available on the Google Play Store?
First things first – the Galaxy Nexus should be available for sale again next week
If you’ve checked the Google Play Store lately, you know Samsung’s attempts to get a stay on Judge Koh’s injunction against the Galaxy Nexus have come up short. However, as ABC news recently reported, Google expects the Android flagship phone to resume sales next week, having released a patch to remove the allegedly patent-infringing “unified search” functionality from the homescreen search widget. In case you didn’t see an OTA notification due to being on a custom ROM, you probably still received the update (in a similar fashion to your Play Store app being updated behind the scenes regardless of which ROM you run). To be sure, just do a search from that search widget, and see if any results pop up from information stored on your phone. If all of your search results are from the Web, then you’ve been “patched.”
Whether you were “patched” or not, the Galaxy Nexus should once again be available for order next week, only this time with Android 4.1 Jelly Bean on board, which Google claims will also address the “unified search” issue Apple complained about. Actually, if you weren’t planning to order the GSM Galaxy Nexus directly from Google, you may not have even noticed the effects of the injunction issued last week. As is normally the case with injunctions, stores are allowed to sell off their remaining stock of Galaxy Nexus handsets. Especially with the Galaxy S III, the HTC One X, One S, and now the Incredible 4G LTE cutting into Galaxy Nexus sales, most stores will likely not run out of their existing inventories before Google and Samsung are able to legally sell the device again.
Secondly, The Appeal
Samsung (and now Google) will have a two-pronged attack prepared for the appeal of the Galaxy Nexus injunction to the Federal Circuit Court in Washington, DC: attack the validity of the patents themselves, and attack the notion that sales of the Galaxy Nexus caused “irreparable harm” to Apple (in the U.S., patent-based injunctions not only require proof of infringement, but also proof that the infringing product causes “irreparable harm” to the patent holder as long as it remains in the market).
While several Apple patents are involved in this case, only one patent was cited by Judge Koh as meeting all of the requirements to warrant an injunction, namely the “unified search” patent. Consequently, while Samsung will almost certainly attack the validity of all of Apple’s patents at trial, the appeal of the injunction need only focus on the “unified search” patent, also known as the “Siri patent.” Samsung hopes to discredit Apple’s patent based on a similar patent awarded to another party prior to Apple (also known as “prior art” – if someone else had the same thing patented before, the argument will be that Apple’s patent should never have been awarded to begin with). When Samsung had requested a stay of execution (meaning that Samsung requested that enforcement of the injunction be delayed pending appeal), Koh denied the request, basically saying they should have asserted the prior art defense when Apple first asked for the injunction. It remains to be seen if the appellate court agrees with Koh.
On the matter of proving “irreparable harm,” Samsung and Google intend to argue that Apple failed to sufficiently prove that sales of iPhones lost enough market share to the Galaxy Nexus to warrant injunctive relief. One part of that strategy will be to argue insufficient proof that the Galaxy Nexus is actually a directly competing product. To quote one of Samsung’s official arguments, “the Court’s finding that Apple will suffer irreparable harm was based on legally insufficient evidence that Samsung and Apple are competitors.” While I find many of Apple’s patent claims to be ludicrous, I can’t help but draw the same conclusion about this argument from Samsung, especially since Samsung recently surpassed Apple as the world’s leading smartphone seller. Samsung’s argument seems to be that, since the Galaxy Nexus itself is not a top-selling device, it is not really the devastating threat to the iPhone that Apple is making it out to be. While I’m sure the argument sounds reasonable to Samsung, I really don’t expect the appellate court to be impressed.
Samsung also plans to claim that any market share Apple may have lost to the Galaxy Nexus is not “substantial” enough to merit the injunction granted. Again quoting from Samsung’s appeal, “the Court’s order is inconsistent with the Federal Circuit’s directive that market share losses must be substantial.” This argument has a slightly better chance of gaining traction with the appellate court, in my opinion (which is not to say that I expect it to succeed – just that it doesn’t sound as detached from reality as the “we’re not even really competitors” argument). Since it’s nearly impossible to put a dollar figure on how much revenue Apple lost directly to the Galaxy Nexus due to the presence of the offending “unified search” technology on the Android device, I can see why Samsung would present this argument on appeal. However, since Koh already decided to issue the injunction and denied Samsung’s request to delay its enforcement, it now resides with Samsung to prove that the Galaxy Nexus didn’t cause Apple “irreparable harm.”
Frankly, as unreasonable as Apple’s “irreparable harm” arguments appear to me, the counter-arguments presented so far by Samsung and Google seem equally unconvincing. In my opinion, their best bet chance at appeal lies in the “prior art” argument against Apple’s “unified search” patent. In any event, if Google and Samsung are indeed able to resume sales of the Galaxy Nexus next week, the only relevance this appeal will have will be to the future func
tionality of the device’s search feature, and to the outcome of the trial itself, which is set to begin on July 30.
Can Google turn the tide against Apple?
Now that Google has officially entered the fray, many Android enthusiasts are hoping that Google’s patent portfolio of Motorola patents and search patents from its core business can be used to force Apple to back down. Google, however, has so far been unable to gain any leverage on Apple in the courtroom with the patents it acquired when it bought Motorola Mobility. One reason is that the majority of the Motorola patents are FRAND (Fair, Reasonable, And Non-Discriminatory) patents, which judges (including Richard Posner) have been loathe to allow to be used as leverage against Apple.
The reason is for this lies in the purpose of the FRAND patent, namely to gain government protection for technologies that have become industry standards, with the understanding that the patents should not be used to block competition by means of injunctions. In exchange for patent protection, the patent holders agree to license the underlying technologies on a fair, reasonable, and non-discriminatory basis to companies seeking to use the technologies protected. Basically, if Apple wants to continue selling iPhones that use communications technologies licensed by Motorola (such as indusrtry-standard 3G and Wifi technologies essential to the operation of the devices), Motorola is required to offer fair, reasonable, and non-discriminatory licensing terms to Apple. For example, if Motorola charges exorbitant, unreasonable licensing fees to Apple, if it charges Apple higher fees than they would charge HTC, or if it tries to seek injunctions banning the sale of iPhones that use the technologies patented, Motorola is violating the terms of FRAND patent protection.
In reality, Motorola and Google are being investigated for doing just that, according to Florian Mueller of FOSSpatents. In an apparent effort to gain some measure of leverage against Apple to make the iPhone maker back off from trying to ban Android devices from the market, Motorola and Google have been trying to gain injunctions of their own banning Apple products from the market. The problem is that Motorola and Google’s patents come with FRAND restrictions that are designed to prevent them from seeking injunctive relief, whereas Apple’s patents are mostly software-based and are not considered industry standards, thus Apple is free to use its patents as it sees fit. Widespread suspicion that Motorola and Google are abusing the terms of the FRAND patents awarded to them not only hurts their credibility in the trials themselves, but also make them look just as anticompetitive, if not more so, than Apple.
The “fight fire with fire” approach has backfired for Google and Motorola, so Google’s patents might not prove to be of much use to Samsung. It remains to be seen just how Google’s official litigation alliance with Samsung will work against Apple’s “thermonuclear war” on Android, but Google’s patents related to its core search business might end up being more useful in Samsung’s legal fight than the patents it acquired from Motorola.]]>