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September 11, 2012

What Goes Around Comes Around: Will Samsung Sue Apple over LTE Patents?

As we've noted elsewhere, patent litigation has its potential upsides, but it also holds potentially dangerous downsides. When two companies hold a substantial number of patents – as both Apple and Samsung do – there is always plenty of room to creatively shape patent infringement lawsuits of all types and sizes. And when one company (in our case Samsung) loses a patent battle – as Samsung recently lost to Apple – there evolves a natural inclination to get revenge (or in the mind of the original loser, to exact some sense of justice).

Given the above, when rumors start to float about that Samsung is considering filing a patent infringement lawsuit against Apple as soon as Apple announces the next generation iPhone, we are inclined to think such a thing will probably happen.

But the other piece of this is that Samsung would indeed need to "creatively shape" such an infringement argument. A creatively shaped argument usually suggests that there isn't a particularly strong case to be made, although that does not mean there isn't any merit to it.

Samsung, in need of feeling like it needs to extract some justice, may very well look to sue Apple over patent infringements surrounding LTE (Long Term Evolution), the next generation of wireless networks.

At least this appears to be the case, according The Korea Times, which quoted unnamed industry sources.

It is an interesting scenario, but we sincerely doubt that Samsung will gain much from doing so. Is a judge - any judge - going to grant Samsung a preliminary injunction preventing Apple from selling a next generation iPhone that sports LTE? Are LTE patents fundamental in nature and subject to fair use of technology (aka FRAND - fair, reasonable and non-discriminatory)? Would Samsung appear to be discriminating against Apple by selectively enforcing such patents (or having access to a license for them at reasonable cost)?

One of the unnamed sources did suggest that Samsung's LTE patents are new and do not fall under the FRAND umbrella. But we also find it difficult to believe that Apple's LTE technology isn't already covered by other LTE patents Apple itself very likely has in hand. We doubt Apple would go out the door with LTE on such a high profile smartphone launch without feeling comfortable about its LTE legal positioning.

We have been in favor of Apple pursuing its recent patent infringement case against Samsung, and that there were fundamental core business issues at play here that went well beyond questions of fair use that Apple needed to defend. Our opinion continues to be that Samsung greatly overreached, infringed in a big way and got its just desserts.

Beyond this, however, we also strongly believe that it is now time for both Apple and Samsung to get off the court circuit and turn their attentions back to innovation and legitimate competition.

Want to learn more about patents in the telecom industry? Then be sure to attend Synopsis Under IP/Patents Telecom Sourcing Conference (SUITS), collocated with ITEXPO West 2012 taking place Oct. 2-5, in Austin, TX. Stay in touch with everything happening at SUITS. Follow us on Twitter.





Edited by Braden Becker


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