Countering Apple's "thermonuclear" patent war

Apple uses legal action as a tactic to keep products in the courtroom and off the shelves. But with Google about to join Samsung in the fray, can Apple keep its winning streak going?

The heated competition in the smart devices market has been matched with an equal amount of bluster in the courtroom with Apple, Samsung Electronics, Google and others seemingly immersed in a merry-go-round of patent litigation. Apple co-founder Steve Jobs promised a "thermonuclear" war against Android and that's exactly how things are panning out at the moment. The question now is can Google stand the heat?

While Samsung and Apple have waged a particularly fierce battle against each other and are now headed for a major showdown in the US at the end of this month, it would seem Google is keen to join the fray and ensure that Apple doesn’t get everything its way.

And Apple has been getting its way off late, with Samsung on the receiving ends of the US court. The Galaxy Tab and Galaxy Nexus have both been blocked from sale in the US and Apple is already cooking up a scheme to stop the Galaxy SIII as well.

Right now, Samsung is the dominant Android phone maker and it’s a position that it’s unlikely to relinquish anytime soon; but it can certainly use a helping hand from Google with regards to tackling Apple. By the same token Google desperately needs Samsung for Android to have a future. The Galaxy Nexus may not be a bestseller but it is the first device running on Ice Cream Sandwich and is in line to get the next Android update Jelly Bean.

There is a certain tactical logic to how Apple uses legal action. We got a glimpse of that in Australia last year with the iPad maker started its bid in April to block the sales of Samsung’s Galaxy 10.1 tablet. After a protracted legal process that wasn’t cleared until the end of the year, Samsung was finally able to sell the tablet on the eve of Christmas. This sort of concerted stalling tactics can suck the oxygen out of a product and Apple, Samsung and Google all know this. Samsung has already suffered millions of dollars in losses because of the bans, some $60 million from the Tab injunction and around $120 million from the Galaxy Nexus. If the Galaxy SIII meets a similar fate then things will get really painful for the Korean giant.

Faced with such a prospect it’s no wonder that Samsung has enlisted Google’s help to wrest the initiative back from Apple. While Samsung has reportedly told the media that it and Google plan to get increased royalties from Apple, who they say have benefited from their technology. Samsung’s counter to Apple has been that the iPhone maker has been infringing on a number of its wireless patents and has demanded that Apple to pay 2.4 per cent of the retail price of iPhones and iPads. Apple is unlikely to accept that rate and it does have a powerful ace up its sleeve.

Apple’s recent victories stem largely from US Patent No. 8,086,604, for a "universal interface for retrieval of information in a computer system."

Intellectual Property expert and Foss Patent  blogger Florian Mueller told Technology Spectator that there's no question that the unified search patent that Apple asserts (and which led to the preliminary injunction against the Galaxy Nexus) is infringed by Google.

“I can't see how Google would be able to force Apple to settle with Samsung. Google acquired Motorola Mobility, but that deal hasn't given it any serious leverage over Apple,” Mueller says.

However, Google is already working on a remedy with All Things D reporting that Samsung and Google have developed a software patch that avoids infringing on an Apple patent for universal search.

The software update is most likely going to be a temporary fix but it does provide some breathing room for Google and Samsung to fortify their position. More importantly it gives them a window to hammer out a cross-licensing deal which may or may not be enough to stop Apple.

As Mueller points out in his latest blog, there is a still a very big question mark about how the update will help Samsung and Google escape the infringement.

“Since this is not a standard-essential patent, it's definitely possible to build a smartphone that doesn't infringe the '604 patent, but based on the court's claim construction, it's hard to see how a modified version of Android can still provide Siri-like unified search.

Or to put it differently: unless Google removes the Siri-like unified search functionality altogether, we're in for an enforcement dispute, and the risk for Samsung would be to be found in contempt.”

For what it’s worth, Samsung admission that it was actively working with Google on a defence is a sign that there is a unified Android front against Apple. Google is already working with HTC and now will have to play a key role as the Samsung-Apple showdown edges closer. 

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