Post 19: Apple vs. Samsung: loss at both sides cannot do better than shaking hands

On March 26, Administrative Law Judge, Tomas B. Pender of the United States International Trade Commission (ITC) made an initial determination on demand in the investigation of Apple’s complaint against Samsung. ITC published such information on the official website, but did not open a preliminary detail of the award. However, some people said Judge Pender reaffirmed the original position in the preliminary decision that Samsung violated Apple’s 4 patents. Judge Pender has made the preliminary ruling last October, found that Samsung GALAXY S, GALAXY S II, GALAXY Nexus, GALAXY Tab, Smartphone and Tablet PC products violated Apple’s 3 common patent and 1 design patent. However, in January this year, ITC accepted Samsung’s request to reopen the case. The initial verdict had been scheduled for April 1, but it come out 6 days earlier than originally planned. The final judgment is scheduled for August 1. According to the United States Tariff Act No. 337, ITC can advise the President against importing allegedly infringing products. After the ITC makes its final decision, the President has to decide if he wants to accept the verdict within 60 days. If it is ultimately ruled that Samsung violated Apple’s patents, and the President accepted the result, part of Samsung products cannot enter U.S. market. Since Samsung’s latest products are not involved in this case, and the infringing products can avoid to be banned by developing other technologies, which around Apple technology patents. Thus, it is expected that Samsung’s U.S portfolio will not be affected too much.

In addition, ITC will make the final judgment on the case that Samsung sued Apple infringed it patent on May 31. ITC made an announcement on 13^th of this month postponed the date of the final judgment. It said that it was necessary to learn how much it was going to influence if the allegedly infringing Apple products were banned to the U.S. market. The above statement seems implies that ITC preliminary decision Apple did exist violations; outcome is expected to be conducive to Samsung.

It seems like Samsung will lose the most recent ITC lawsuit. However, patents provide Samsung with a high degree of brand visibility and reputation. In the recent market share, Samsung exceeds 30%, which is on the global top spot, while Apple is only about 14%. Samsung lose the case, but win the market. How can you tell who the winner is? It seems like Apple hopes to against Samsung’s intentions through patent warfare fell, then why Apple initiates the patent war?  Can patent war really play a role against the competitor? I doubt it. I do agree that patent warfare would be a good weapon as long as finding the right target. However, we all know that patent litigation is a long and protracted war. It may last for months or even years which caused immeasurable losses to the parties.  Apple and Samsung’s century patent was lasted form April 2011 till now, complicated protracted litigation is not only affecting the progress of both product development and marketing, but also damage both parties’ corporate image at various degrees. It is worth to notice that although Samsung has won the market share, but lose the lawsuit and pay compensation to Apple; Apple won lawsuits to obtain compensation, but its market share has been left far behind by Samsung. I think patent litigation is more like a double-edged sword, which can effectively protect their own innovation, but the complexity of patent litigation would hinder the pace of innovation in a certain extent. In general, patent wars are unable to separate the real winner, most patent fight lost at both sides. Apparently, it could not be implemented to fight against rivals through patent warfare because it takes a lot of resources, and might not get the ideal result. Thus, instead of losing on both sides, why not shake hands and achieve the win-win situation together.