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Friday, November 11, 2011, 03:00 pm PT (06:00 pm ET)

Samsung seeking injunction against Apple's 3G products in Germany

In a reversal of its position that Apple is an aggressor trying to stifle competition with patent lawsuits, Google's Android licensee Samsung is initiating new efforts to ban Apple's 3G products in Germany using the same standards-based patent action Motorola has.

In a report covering Samsung's 3G-related patents against Apple on trial in Germany's Mannheim Regional Court, FOSS Patents reporter Florian Mueller noted that "the presiding judge indicated preliminary positions and inclinations that suggest the two German litigations tried today pose considerable risk to Apple but won't necessarily result in rulings that Samsung can effectively enforce against Apple's core products."

The two cases will be tried in late January. Right now, Apple and Samsung are arguing over what devices might be covered under the injunction Samsung seeks, which would include a prohibition of sales of iPhones and iPads incorporating 3G features. Apple is specifically working to proactively exclude the iPhone 4S from the litigation so as to avoid any real impact even if an injunction is granted.

The German court recently granted Motorola Mobility an injunction against Apple covering its German sales, but its unclear what impact that injunction actually could have. As in the case with Motorola, Samsung's claims against Apple relate to issues of patent exhaustion and FRAND licensing.

Patent Exhaustion

Samsung's latest case raises new questions for the court to sort out, including whether Apple is infringing patents that were licensed by the component manufacturers that built the baseband chips Apple uses in its iPhone and iPad.

Apple began building iPhones with Infineon baseband chips that were themselves licensed by Samsung. After Intel purchased Infineon's mobile technologies division, Apple continued using Infineon-branded chips built by Intel.

"It's possible that Intel's contract with Samsung is different from the one Infineon had," Mueller noted. At question is "patent exhaustion," whether Samsung can sue Apple for infringement in using Intel's version of the Infineon chips sold since January 2011, or whether Samsung's rights to sue over patents are "exhausted" after being licensed to a third party building the components.

Apple reportedly complained that Samsung "refused to provide detail" about its contract with Intel. With the CDMA iPhone 4 and iPhone 4S, Apple has shifted to using Qualcomm's baseband chips instead, which provide world mode features enabling the same chip to handle both GSM and CDMA-type mobile networks.

Samsung's claims of Apple's "infringement" of its 3G-related patents due to its use of licensed chips from Intel appears to be a desperate stab of a defense, and far different from Apple's infringement claims against Samsung, which are related to Samsung's "slavish copying" of Apple's designs and technologies.

FRAND Frenemies

A second major issue in the case, according to Mueller, is Samsung's use of standard-essential patents that have been committed to "Fair, Reasonable And Non-Discriminatory" licensing.

A Dutch court threw out Samsung's case for an injunction over FRAND patents because Samsung sued before even trying to reach a licensing agreement with Apple. But the Mannheim judge in Germany "stressed that a party requiring a license to standards-essential patents is responsible for obtaining one, and has to make an offer to the patent holder," Mueller reported.

Apple presented the court with public reports indicating that it buys $7-8 billion worth of Samsung components annually, noting that Samsung has never raised any infringement claims over any of its standards-essential patents "until it decided to retaliate for Apple's assertions of non-standards-related patents," Mueller stated.

Because Apple and Samsung are now engaged in patent cases in nine countries, Mueller notes that "it's not impossible that Samsung will prevail in some courts" with its FRAND patent suits. However, the outcome will likely be influenced by the European Commission's investigation into Samsung's efforts to use FRAND patents as weapons.

The German court is amenable to granting injunctions (as it did for Apple against Samsung's Galaxy Tab), and Mueller states that it is "not being particularly receptive to [Apple's] FRAND defenses," suggesting that the EC's investigation may result in "an opportunity to strengthen the rights of implementers of FRAND standards [like Apple] on a Europe-wide basis."

Google, Android and its rampant patent hypocrisy

Such a result would prevent efforts by Android licensees to use patents related to open standards as offensive weapons to counter actual infringement claims or promote monopolies among patent holders of standard-essential intellectual property that has been granted government exclusion from anticompetitive law under the understanding that its patent holders would license their patents fairly rather than trying to stop competitors with injunctions.

While complaining about patent licensing agreements tied to MPEG video technologies, Google has actively promoted the anticompetitive abuse of standards-essential wireless patents with its licensees Motorola Mobility, HTC and Samsung, even as it also decried the legitimate patent cases against Android's infringements as "hostile, organized campaign" of "attacks" by Apple, Microsoft and Oracle using what Google described as "dubious patents."