Patent wars may not upset the Apple cart

Ross Walker looks at the ramifications of the August ruling against Samsung

A trial between Samsung and Apple, one of the biggest patent battles of its kind, concluded in the US courts in August. One could be forgiven for thinking that this would mean an end to the tensions between the two technology titans.

However, both companies continue to wage war on each other around the world, each accusing the other of patent violations.

The stakes are high but it is the smaller developers that will truly feel the ramifications of this case, and for many years to come.

In the August trial, Samsung was ruled guilty of intellectual property infringement and ordered to pay Apple about $1bn in damages, while its own claims that several of its patents had been breached by Apple were rejected.

This is far from over either in the US and overseas, though. I have read that Samsung and Apple are involved in about 50 other lawsuits, potentially amounting to billions of dollars in damages claims.

The impact of even multiple lawsuits is likely to be negligible for the companies themselves, which together account for more than half of all the world's smartphone sales.

In fact, a US court has recently cancelled a temporary US sales ban against Samsung's Galaxy Tab 10.1, which had been won by Apple. Although the Galaxy 10.1 is an older model, the lifting of the ban could help Samsung dramatically in the run-up to Christmas.

The company is also arguing that this decision by the court vindicates its position that there was no infringement of Apple's design patent and that an injunction was not called for in the first place.

Yet for smaller developers in the Android ecosystem, the repercussions are relatively grave.

Patent portfolios have long been used as a form of protection against large competitors, but this case clearly demonstrated the international nature of intellectual property rights and their ability to affect developers of all sizes.

It also demonstrated Apple's willingness to take anyone to court, irrespective of their size or market share, to do something it believes will protect its products.

While this was a big enough problem for a massive manufacturer such as Samsung, similar challenges would cripple small development studios.

So it has become crucial for smaller companies to pay attention to intellectual property issues and foster an awareness of the influences on their own product development. Competition is no longer just about who has the best product, brand and marketing. The courts and patent system are a force in the market as well.

It can be very difficult and expensive to establish whether any idea you come up with is patented or not. How do you know you will not fall foul of a similar patent claim?

Furthermore, patent infringement rulings generally do not require proof of intent, so companies cannot claim ignorance or innocence as a defence.

Many are debating whether the Apple-Samsung stoush will stifle innovation – or whether it could in fact promote innovation.

Understanding the patent process can be challenging. Considerations include whether an invention is patentable, whether it is commercially exploitable in the sense that the company will not find itself on the wrong side of an infringement action, and how best to protect the invention, especially in a rapidly moving market such as IT.

Ross Walker is a partner at Forresters