IPR. – The weakness of essential (part VI).

If Apple can show infringement, it is in a much stronger position.

• Apple has had a good week.
• First the presidential veto of Samsung’s ITC imposed ban and now the turnover of the ITC dismissal of its patent assertion against Motorola Mobility.
• This case concerns two multi-touch patents that Apple can now assert once again against Motorola Mobility.
• Importantly, Apple is now free to assert these patents against Samsung and if they prove valuable, I am sure it will do so.
• The key point to remember here is that these patents are not standard essential patents (SEP) (see here).
• These are implementation patents meaning that it is possible to design around them.
• It is much more difficult to prove infringement of an implementation patent but once infringement has been proved the remedies are much stronger.
• The holder of an SEP is bound by the principle of FRAND and must behave accordingly.
• The recent presidential veto of in ITC imposed ban for infringement (see here) is a ringing endorsement of this principle and should help prevent further abuse of SEPs.
• Hence should Apple win a finding of infringement for these touch patents, there are no principles to which it must adhere.
• It can charge whatever royalties it deems fit or insist that the infringer redesign his products so that it no longer infringes.
• If Apple wins an ITC import ban, then there is virtually no chance that the White House will exercise its veto.
• That being said, it is still a very long road from where Apple is today and it could easily be many months before Apple succeeds on winning implementation of a ban against Samsung.
• Until then we will continue to see the hideously expensive and pointless tit-for-tat war continue between the two companies.
• I suspect that both companies have spent far more on legal fees than they would ever expect to pay in royalties.
• Hence, I am hopeful that once they have realised that this pointless war could drag on for many more years, they will sit down and do a deal.
• I am still forecasting that this could happen this year but must admit there is growing risk that this could slip into 2014.