National Law Institute University

BHOPAL
INTELLECTUAL PROPERTY LAW II (IPR- II)
Project on

Global smartphone patent wars.

PRESENTED BY
Sanchit Asthana
XII Trimester
ROLL NO: 2011 BALLB 87

List of cases
Pg No.1

Apple Inc. v HTC Europe Co. Ltd [2012] EWHC 1789 (Pat) Case No: HC11
C02826 & HC11 C02703 & HC11 C03080
Apple Inc. V. Motorola (German Courts)( citation not found.)
Apple Inc. v . Samsung( citation not found.)
Samsung Electronics (UK) Ltd v Apple Inc Court of Appeal (Civil Division), 18
October 2012. ( citation not found.)
HTC Europe Co Ltd v Apple Inc Chancery Division (Patents Court), 04 July
2012.( citation not found.)
Apple Computer Inc v Design Registry Registered Designs Appeal Tribunal, 24
October.( citation not found.)
Apple Inc. vs Samsung Electronics.( citation not found.)
Apple Inc. vs Samsung Electronics January 5 2012 in the court of Milan.
( citation not found.)
Motorola Mobility V. Apple Inc on august 17, 2012 .( citation not found.)

CONTENTS
Pg No.2

INTRODUCTION
pg.no.4
SOFTWARE PATENTS
pg.no.5
Standards-Essential patent.(SEPs)
pg.no.7
What is FRAND AND RAND?
Pg.no.8
Trade Dress patent
pg.no.10
CONCLUSION
pg.no.13

Pg No.3

THE GLOBAL SMART PHONES PATENT WAR

INTRODUCTION

Every new patent is a licence to sue, a patent war is a battle between

multinational companies and individuals to secure their patents through
litigation. The patent wars have occurred both in past and in the present market
in technologies and softwares corporations. The patent war is a global
phenomenal in the world markets.
The birth of telephone into this world had it patent war, the inventor of
telephone Alexander Graham Bell was dragged into a patent war against his
rivals, which involved, in just 11 years, 600 lawsuits 1. One notable was the case
with ELISHA GRAY also credited with inventing telephone2.
In the current global market the smartphone patent war started in late
2000s.According to PC Magazine published on 6 august 2012 Apple Inc.
brought the patent wars to the smartphones market by its desire to go
thermonuclear on the major technology companies in the mobile market3
The stakeholder of the smartphone war are Apple Inc., Google, Samsung ,
Mircosoft, Nokia, Motorola, and HTC among others and the costumers.
Through the course of the paper I will give you the various patent litigations
fought between these companies.

1 The Worldwide History of Telecommunications. John Wiley & Sons. pp. 176177.
2 http://en.wikipedia.org/wiki/Patent_war
3 http://www.pcmag.com/article2/0,2817,2399098,00.asp
Pg No.4

In the smartphones patent wars all the companies sue on the following
infringement of patents.
1. Software patents.
2. Standards-Essential patent.
3. Trade Dress patent4.

SOFTWARE PATENTS.
A software patent has been defined by the Foundation for a Free information
infrastructure (FFII) as being a "patent on any performance of a computer or a
mobile realised by means of a computer programme"5 in my words Software
patents are mostly code, but have some physical outcome and on what the
mobiles are built.
The term software patents is a little bit of a misnomer since in general, it is not
the software that is patented, but the underlying method or algorithmic means of
accomplishing an end result.6
In different parts of the world the patent laws are different in the European
nations you cant patent a software as such, but you can patent software which
achieves a technical effect.
In a noted case law where Apple has been able to patent slide-to-unlock to some
though not universal effect in Europe .The slide to unlock has a physical effect
of allowing you to interact usefully with the rest of the screen.7
4 http://www.guardian.co.uk/technology/2012/oct/22/smartphone-patent-wars-explained?
newsfeed=true
5 "The Gauss Project". FFII. Retrieved 2007-05-30.
6 http://bioinformatics.oxfordjournals.org/content/22/13/1543.full
Pg No.5

In
the
Apple
Inc.
v
HTC
Europe
Co.
Ltd8
in the case where apple sued HTC for the infringement of the slide t o unlock
which is a software patent where the courts said that You cant be sued for the
fact that some code exists, but once you embody it in something a
smartphone, say, or a tablet and make it do something, you might be
infringing on the invention that is embodied by another piece of code.9

Apple Inc. V. Motorola (German Courts)

For a similar infringement where MOTOROLO was sued by Apple in the
German courts, where the judgement given makes Apples first patent victory
over Motorola in any any part of the world.10
The patent in question EP1964022 - relates to the process of unlocking a
smartphone by simply swiping a finger from one area of the screen to another.11
This is why, for example, modern versions of Android's unlock system let you
pull a lock icon in pretty much any direction. There's no line to even hint about
how you should drag the lock - only a target to show where to aim for. That
cleverly lies outside the patented "slide-to-unlock" functionality.
Then speaking about the new dispute which entered the court room in July 2011
Apple Inc. v . Samsung
In which apple put forth in course of the argument the software patents
infringed by Samsung.
7 http://www.guardian.co.uk/technology/2012/oct/22/smartphone-patent-wars-explained?
newsfeed=true
8 Neutral Citation Number: [2012] EWHC 1789 (Pat) Case No: HC11 C02826
& HC11 C02703 & HC11 C03080
9 http://www.forbes.com/sites/timworstall/2012/10/22/all-you-need-to-know-about-the-apple-googlesamsung-motorola-patent-wars/
10 http://www.bbc.co.uk/news/technology-17058508
11 http://www.bbc.co.uk/news/technology-17058508
Pg No.6

1. utility Patent 163: Enlarging documents by tapping the screen

2. Utility Patent 381: 'Bounce-back' feature when scrolling beyond the edge of a
page. This is also known as the rubber band patent.
3. Utility Patent 915: Distinguishes between single-touch and multi-touch
gestures. An example of this would be pinch to zoom.12
All the three utility patents which Apple questioned come under the software
infringement patents only.
Below are few references of the latest smartphone software patent infringement
cases.
Samsung Electronics (UK) Ltd v Apple Inc Court of Appeal (Civil Division), 18
October 2012.13
HTC Europe Co Ltd v Apple Inc Chancery Division (Patents Court), 04 July
201214
Apple Computer Inc v Design Registry Registered Designs Appeal Tribunal, 24
October15
Again coming back to the term software patents which are also known as
computer implemented programs is always a debate in the intellectual property
world, few feel that patenting a software is restriction in development of the
software so is the principle followed in the European nations where patenting a
software is not easy.
Standards-Essential patent.(SEPs)
The standard Essential patents are the key to understand many of the patent
wars going on.
12 http://www.businessinsider.com/apple-versus-samsung-2012-8?op=1
13 [2012] EWCA Civ 1339; Official
Transcript(http://login.westlawindia.com/maf/wlin/app/search/navigate?page=2&crumbaction=replace&crumb-label=Search+Results&sortid=publication&context=12)
14 [2012] EWHC 1789 (Pat); Official Transcript
15 [2002] E.C.D.R. 19; [2002] F.S.R. 38; [2002] Masons C.L.R. 21; (2002) 25(2) I.P.D. 25015;
Official Transcript
Pg No.7

The term essential patent is usually defined as patent that contain one or more
claims that are unavoidable and necessarily infringed by the implementation of
a specification or standard for which they are essential.16
The patents of mobile phones are set for standardising to set the technical
standards to ensure that different manufactures products are compatible. The
GSM,GPRS,EDGE,3G and 4G and digital photography if the device is camera
enabled are the few standards essentials patents.
A question arises who and how do they standardise something like this ?
In European nations a standard approval process run by the experts European
Telecommunications standards institute ETSI. Approves a new standard and
various organisations in various countries.
What is FRAND AND RAND?
"Fair, Reasonable and non-Discriminatory" (FRAND) and in US it is RAND,
once the patents that are essential to the standard have been identified the
relevant patentees are required to give a commitment to licence those patents to
anyone who wants to implement the standard on a "fair, reasonable and nondiscriminatory" (FRAND) basis.17
As explained the basics of SEPs why are the SEPs a reason for patent wars in
the global market?
Having an SEP is like having a lottery ticket coz everyone has to licence your
patent, if a company x want the new WI-FI wireless technology an standard
essential patent which is patented by company Y then company Y can licence
it to company x at a decided price, like APPLE and FIREWIRE .providing
something that is going to be a part of mobile phone the companies are going to
have millions and millions of licensors.
When a company inputs and SEP in its device without licencing from the
company which holds the patent leads to patent infringement,which similarly
happened in the Apple Inc. vs Samsung Electronics.
16 http://www.managingip.com/Article/2251048/Licensing-essential-patents-in-the-telecomsindustry.html
17 http://www.guardian.co.uk/technology/2012/oct/22/smartphone-patent-wars-explained?
newsfeed=true
Pg No.8

Apple Inc. vs Samsung Electronics.

In the case where the judgement was given in favour of Apple Inc. over its
claim that Samsung infringed over six patents of Apple products.
Samsung Electronic in its appeal would challenge iPhone 5 ban over 4G/LTE
standard-essential patents. In which Samsung electronics holds 12% of all
4G/LTE patents where it has not licenced its patents according to FRAND and
to sue Apple for infringement of SEPs.18
Apple Inc. vs Samsung Electronics.
In the case case where on January 5 2012 in the court of Milan Samsung
Electronics claimed to be the owner of serval essential patents 3G/UMts and
requested the court of Milan to grant a preliminary injunction against the Apple
Inc. for allegedly infringing the standards essentials patents at issue.19
In Ericsson and GSM/EDGE case
In which the Ericsson held essentials patents in Italy claiming GSM/EDGE
technology. Ericsson claimed for injunction on seizure against the Italian
company ONDA before the court of Trieste.
In this case where the defendant ONDA CO. was an previously licensee of
Ericsson essential patents, and was allegedly still negotiating the renewal of
licence before the pending proceedings, it conforms that its willingness to
negotiate the new licence under FRANDA terms. Through a real offer tro
Ericsson.20
Google Inc.'s Motorola Mobility V. Apple Inc.
Where Google sued Apple Inc. on august 17, 2012 for infringement of seven of
its standard essential patents. The patents relate to Apple devices including the
18 http://www.fosspatents.com/2012/09/where-on-earth-could-samsung-get-iphone.html
19 http://www.managingip.com/Article/3082465/The-cases-changing-enforceability-of-standardessential-patents-in-Italy.html
20 http://www.managingip.com/Article/3082465/The-cases-changing-enforceability-of-standardessential-patents-in-Italy.html
Pg No.9

iPhone, iPad and iPod Touch, the company is seeking a ban on the import of
those products made overseas.21
Nokia Electronics vs. Apple Inc.
Nokia, once the world's biggest mobile phone maker sued Apple on October
22,2009 over infringement of 10 patents which also involved SEPs.
The involved SEPs were wireless data, speech coding, security and encryption.
The breaches applied to all models of the iphone science the launch in 2007.
The court said Nokia Corp had agreements with about 40 firms including most
mobile phone handset makers allowing them to use the firm's technology, but
that Apple had not signed an agreement.

"The basic principle in the mobile industry is that those companies who
contribute in technology development to establish standards create intellectual
property, which others then need to compensate for,"22

Trade Dress patent

Registered designs or Design Patents or The Trade Dress patent is
roughly what something looks like rather than what it dose, It is an nonfunctional. These are different from regular patents but are a from of Intellectual
property and these are Tangible Things.
In the United States, a design patent is a patent granted on the ornamental
design of a functional item. Design patents are a type of industrial design right.
Ornamental designs of jewelry, furniture, beverage containers and computer
icons are examples of objects that are covered by design patents.23
21 http://online.wsj.com/article/SB10000872396390444508504577595824047184552.html
22 http://news.bbc.co.uk/2/hi/business/8321058.stm
23 http://en.wikipedia.org/wiki/Design_patent
Pg No.10

Trade Dress is not really a "subset" of trademark law. It is trademark law.

Lanham Act Section 43 allows protection against any use of a mark or device
that might confuse as to origin of goods or sponsorship. Trade dress is that
device, so if the trade dress causes confusion, then it will generally be
actionable. But the story doesn't end there. You must have distinctiveness.24
The trade depress patents are very important part in the smartphones patents
wars as these relatively are easy to file, the design patents dont have long
complex claims, they are drawings and the end result with the overall look of
the product.
Apple has argued in US and English courts that its iPhone and iPad designs
have registered designs, specifically for elements including its rounded corners.
That is, it argues that, for example, the rounded corners - at a particular radius are visually distinctive features that were unusual when they first introduced
them25. Anybody can understand what an iPhone or iPad looks like and that the
look is kinda distinctive.
Apple Inc. showed its Iphone boxes and packing as part of it trade dress. who
would have thought these little out of the experience details could be intellectual
property. Apple Inc. which believe in the End to End service to the costumer
showed the world the importance of trade dress, as they fetch money as the
award of $ 1.05 billion damages for the infringement of design patents and trade
dress.
There are a list of cases where the smart phone companies sued each oother
over design or trade dress infringement.
In Apple Inc. v. Samsung Electronics.
Apple sued Samsung with infringement of three Design patents.

24 http://www.guardian.co.uk/technology/2012/oct/22/smartphone-patent-wars-explained?
newsfeed=true
25
Pg No.11

Design Patent 087: Ornamental design of the iPhone (white color), Apple has
patented the fundamental design and shape of the iPhone. This means that its
rectangular shape and f orm belong to Apple. Samsung violated this design
patent with 12 phone models.
Design Patent 677: Ornamental design of the iPhone (black color) , In addition
to patenting the shape and color of the white iPhone, Apple also patented the
shape and color of its black iPhone.
Design Patent 305: Rounded square icons on interface, Samsung's phone icons
copied Apple's with 13 phone models. They were the same in their design and
shape.26
The Apple v Samsung case was one which made history in showing the
importance of trade dress. Like were many case in past which had court room
filled with trade dress infringement.
In 2011 Apple sues Samsung in south Korea in five trade dress patents, in japan
2 patents and in Germany 3 patent.27
2011, Jul 01: Apple files for preliminary injunction against 4 Samsung products:
Infuse 4G, Galaxy S 4G, Droid Charge, and Galaxy Tab 10.1 based on 3 design
patents28.
011, Aug 23: Microsoft files a complaint with the ITC requesting a ban on
several key Motorola smartphones and devices in the USA based on
infringements of 7 patents of design.29
The above are a few case which and there are many in the trade dress
infringement patents.

26 http://www.businessinsider.com/apple-versus-samsung-2012-8?op=1
27http://edition.cnn.com/2011/TECH/innovation/04/19/apple.samsung.lawsuit.wired/
28 http://www.fosspatents.com/2011/07/apple-files-motion-for-preliminary.html

29 http://techcrunch.com/2011/08/23/microsoft-asks-for-an-import-ban-onmotorola-smartphones/
Pg No.12

Pg No.13

CONCLUSION

The smartphones in our hands are a marvel on innovations but they are a
litigation magnet, the companies in the business are spending billions buying
patents and hundreds of millions suing one another. This shows how
dysfunctional the patent system has become but in the end the consumers are
the losers.
The use of patents in the smartphone showed a system in chaos. With the
major companies moving around the courts in fight for their battle in the patent
war. The companies are using their patents as both defensive and offensive
weapons as the granting of patents in the government offices as become too
easy, where a question arises could the patenting fundamentals be right?
With so many patents battles being hung in the court rooms throughout the
world and verdicts being ruled in favour of one company is asset back in the
innovation on technology and its development impacting on the consumers of
the product, and with the current battles one can only see the companies fight
their rivals through courts but not through the market competition.
With so many patent litigations pending in the courts I suggest why not a
separate tribunal setup for resolving the dispute, tribulation for patent wars will
give the global companies a platform where there can be alternative ways in
resolving the dispute by the means of arbitration, consolation and etc.
At the end of all this a question arises when are the companies going to stop?
Sadly what I feel is this is like being an ancient Greek. Shown in the movies
they imagined there were multiple gods who were often at war with each other,
leaving mere mortals as spectators. Thats the situation we find ourselves in.
However I fell the ultimate winners are the lawyers who make gold out of it.

Pg No.14

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Pg No.15