Samsung’s Patent Infringement Strategy: Drag it Out

| Analysis

The ongoing mobile device patent infringement fight between Apple and Samsung has been going on for years and it doesn't show any sign of wrapping up soon. Yes, the legal system moves slowly, but the bigger delay comes from Samsung and its uncanny ability to drag out and extend the process while implying that it knows its products infringe on Apple's patents.

Samsung's patent fight with Apple is a slow danceSamsung's patent fight with Apple is a slow dance

The idea that Samsung is well aware of its patent infringement and isn't interested in fixing the issues comes from its decision to post a bond against the ITC's injunction blocking the sale of some of its products in the United States. By posting that bond, Samsung is implying that it is knowingly infringing on Apple's patents and doesn't have plans to change its products to avoid infringing.

Paying the bond may just be a way to avoid having to rework products that are near the end of their life cycle, but it also shows that Samsung isn't overly interested in finding ways around Apple's patents. Florian Mueller of FOSS Patents stated,

For now I can't rule out that Samsung's bonds don't amount to much. Maybe they just relate to a few products of which it isn't selling a lot of units now, but it didn't want to make any changes to those products toward the end of their lifecycle. Still, Samsung has known for well over two years that a U.S. import ban over the asserted Apple patents could issue, and the fact that it still hasn't ceased to import and/or sell products that infringe on those patents is at least a potential indication that Samsung would rather not have to work around the patents Apple successfully asserted.

Samsung's game plan so far leans towards simply staying ahead of the courts. Make new smartphones and tablets that may or may not infringe on Apple's patents, and by the time related lawsuits can work their way through the legal system they move on to new products.

We can see that playing out right now. Apple won a big victory against Samsung last August that included over US$1 billion in damages. A new trial to redetermine part of those damages is scheduled for this fall, and a second patent infringement trial will start next year over newer Samsung products that couldn't be included in the first trial. The list of patents Apple claims Samsung's devices infringe on is essentially the same in both cases.

So far Samsung's tactics have been paying off. The company continues to release new mobile devices that compete with Apple's iPhone and iPad, and it is gaining marketshare around the world. Apple can continue to file lawsuits, but it simply isn't possible for the company to block all of Samsung's smartphones and tablets, and it can't keep up with the pace at which they're released.

Where import bans and ongoing lawsuits seem to be more of a nuisance for Samsung, the same could be said -- at least to a degree -- about Apple. Samsung recently managed to win an ITC ban on the iPhone 4 and iPad 2 that was vetoed at the last minute by the White House. Since both products most likely will be discontinued in the coming weeks, the ban was mostly symbolic.

The White House veto, however, did hold more significance because it stopped Samsung from using  standards-essential patents to gain a ban on Apple products. From the government's perspective, using SEP amounted to strong arming companies into paying higher license fees for other patents or face the prospect of losing access to the standards-essential patents they need to make their products work.

For Samsung, it doesn't matter how many lawsuits Apple files. It can continue to release new products and they'll sell. The ongoing lawsuits are just part of the cost of business as usual.

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