German court grants retrial on Samsung SEP against Apple
A German court has accepted Samsung's plea and <a href="http://www.fosspatents.com/2013/03/german-court-keeps-samsungs-hopes-alive.html">scheduled a retrial</a> of a case against Apple for allegedly infringing a 3G standards-essential patent (SEP) after the Korean electronics maker presented a new theory to the court that allowed it to sue Apple for damages. Samsung had been <a href="http://www.electronista.com/articles/12/12/18/lawsuits.still.being.pursued.samsung.says/">forced to withdraw</a> all European lawsuits involving SEPs that asked for injunctions due to a <a href="http://www.electronista.com/articles/12/12/21/step.marks.commencement.of.formal.frand.patent.abu se.investigation/">ruling from the European Commission</a> that such a practice was illegal and anti-competitive, however it is still free to sue for damages from potential infringers.<br /><br />While a possible Samsung victory on the new lawsuit would entitle it to damages from Apple, it could not result in an injunction of any products. Samsung declared the patent, <a href="http://macnn.com/rd/280644==http://worldwide.espacenet.com/publicationDetails/originalDocument?FT=D&date=20100721&DB=worldwide.e spacenet.com&locale=en_EP&CC=EP&NR=1679803B1&KC=B1 &ND=4" rel='nofollow'>EP1679803</a>, essential to the UTMS 3G standard years ago.
Apple has protested that it is a <a href="http://macnn.com/rd/280645==http://www.electronista.com/articles/13/03/05/filing.made.public.by.apple.submission.of.ruling.t o.itc/" rel='nofollow'>"willing licensee"</a> of SEPs held by Samsung, but that Samsung refuses to negotiate a license in good faith adhering to Fair, Reasonable and Non-Discriminatory (FRAND) principles. Samsung generally seeks a royalty of <a href="http://macnn.com/rd/280646==http://www.electronista.com/articles/12/03/06/apple.may.not.pursue.all.lawsuits.to.end.point/" rel='nofollow'>2.5 percent of the net price</a> of a device per patent, many times higher than is standard for the industry.
Samsung told the court that Apple has not yet met its burden of proof that it should be free of damages awards, which will require further analysis of German 3G networks to determine exactly when and how often the patented data transmission method is used, and to what extent Apple devices use the technique. Given that Samsung has seen a spate of its SEP claims <a href="http://macnn.com/rd/280647==http://www.electronista.com/articles/13/03/07/legal.tide.so.far.in.apples.favor/" rel='nofollow'>invalidated or dismissed</a> -- including one case that has been <a href="http://macnn.com/rd/280648==http://www.electronista.com/articles/12/05/04/stay.based.on.pending.invalidation.ruling/" rel='nofollow'>stayed by the same German court</a> over questions of validity -- the retrial can be seen as risky for the Korean electronics giant.
The legal back-and-forth between Samsung and Apple hasn't gone especially well for either company with respect to their Germany-based lawsuits, patent law analysts <a href="http://macnn.com/rd/280649==http://www.fosspatents.com" rel='nofollow'>Florian Mueller</a> points out. In addition to Samsung having to drop its injunction-based SEP cases, it <a href="http://macnn.com/rd/280650==http://www.fosspatents.com/2012/03/mannheim-court-throws-out-third-samsung.html" rel='nofollow'>lost its first three SEP claims</a> against Apple with a finding of no infringement by the iPhone maker.
Even Samsung's non-SEP German cases have been stayed, including one that attempted to <a href="http://macnn.com/rd/280651==http://www.electronista.com/articles/13/02/23/parallel.case.could.nullify.samsung.patent.at.hear t.of.dispute/" rel='nofollow'>get an injunction against the VoiceOver feature</a> -- potentially devastating to handicapped users -- and another over a method of <a href="http://macnn.com/rd/280652==http://www.fosspatents.com/2012/12/german-court-stays-samsung-lawsuit.html" rel='nofollow'>inputting emoticons</a>. Apple by contrast <a href="http://macnn.com/rd/280653==http://www.electronista.com/articles/12/01/31/galaxy.tab.still.banned.but.for.different.reasons/" rel='nofollow'>won an import ban</a> over the original Galaxy Tab 10.1 (which Samsung later designed around) and also won two design patent-based injunctions on Samsung products that aren't being produced anymore. It has also -- at least thus far -- fended off all Samsung's suits either with victories or stays over validity of the patents Samsung sued over.
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