There was a time when fans rooted for teams with fanciful names on their shirts and when championships had names like the Cotton or Orange Bowls. Around the globe, sports competitions have devolved into proxy wars under the banners of a team’s corporate sponsors. In Madrid, Aon PLC, a risk management company, lost its proxy war to bwin, an online gambling company, when veterans from Real Madrid beat Manchester United, 3 to 2. In the Japan Series, the Yomiuri Giants defeated the Nippon Ham Fighters 4 to 2, to the delight of the Yomiuri Group, a media conglomerate, and to the chagrin of Nippon Ham. How long until ESPN realizes that the more spirited battles between corporate giants take place in the courtroom, not the playing fields?
Consider the high-stakes global patent infringement competition between Apple and Samsung. April 15, 2011, saw Apple launch the first salvo in what would quickly become a worldwide battle with Samsung over smartphone and tablet technologies, spanning at least 10 countries, with multiple lawsuits in each. In California, Apple was able to obtain a preliminary injunction based on a design patent that many complained covered nothing more than a rectangle with rounded corners. After a trial, the jury awarded Apple $1.05 billion dollars, but interestingly, found that the design patent was not infringed by the Galaxy Tab 10.1. Judge Koh dissolved the preliminary injunction and denied a permanent injunction. Both sides have appealed.
In February 2012, Apple filed a second case in California, requesting a preliminary injunction against sales of Samsung’s Galaxy Nexus smartphones, based on four other utility patents. On June 29, 2012, Judge Koh agreed to the injunction based on one of these patents. In October, the Federal Circuit overturned this injunction. Samsung has asserted numerous patents in a counterclaim in this action, which is still pending.
In June 2011, Samsung filed parallel proceedings in the Delaware federal court and the International Trade Commission (ITC), alleging that Apple’s iPhone, iPod and iPad products infringed five utility patents. In July 2011, Apple parried with its own ITC complaint. The Delaware court stayed its action pending the outcome of the ITC proceedings, neither of which went Samsung’s way, and the ITC is considering whether to bar Samsung imports.
Soon after Apple’s opening salvo in California, there were lawsuits in South Korea, Japan, Germany, the Netherlands, the United Kingdom, France, Italy, Spain and Australia, where the patents Apple and Samsung obtained in these individual countries were at stake.
- In Germany, Apple obtained certain injunctions from its European Community design patent, but the U.K. courts ruled in Samsung’s favor, with one judge reasoning that there was no infringement because Samsung’s design “was not as cool” as Apple’s. An appeals court confirmed this non-infringement decision in October, further stating that the decision was binding across the EU, thereby placing it at odds with the German appeals court and creating a controversy ripe for the Court of Justice of the European Union to sort out.
- By August, a Dutch court granted Apple’s preliminary injunction request, barring Samsung from selling the Galaxy S, S II and Ace smartphones. Apple was unsuccessful with its ban of the Galaxy tablets, which was rejected by an appeals court in The Hague on Jan. 24, 2012. Apple was also unsuccessful asserting touch-screen technology patents, but won an injunction against certain Samsung digital photo management tools. However, it has not been all bad for Samsung in the Netherlands, where in October 2011, a Dutch court found that Apple owed Samsung royalties because its 3G iPhone and iPad infringed one of Samsung’s patents.
- In France and Italy in October 2011, Samsung unsuccessfully filed preliminary injunction motions. The Paris court required Samsung to pay €100,000 in legal fees for its unsuccessful lawsuit.
- In Spain, in May 2011, Samsung filed a nullity action in the Office for Harmonization of the Internal Market in Alicante, seeking to cancel at least three of Apple’s Community design patents. These proceedings are pending.
- In Japan, Apple’s claims related to media players were dismissed in August 2012. Samsung’s preliminary injunction motion was denied that October.
- In South Korea, the court determined that Apple and Samsung were infringing each other’s patents and enjoined both companies. On Oct. 11, 2012, the appeals court stayed the injunctions and required both companies to pay relatively small fines.
- In Australia, in October 2011, a court enjoined sales of Samsung’s Galaxy Tab 10.1 based on Apple’s touch-screen patents, but in November an appeals court overturned the ban. Samsung has sought a preliminary injunction banning iPhone 4S sales. In July 2012, a trial which consolidates these two actions began and is pending.
Maybe it’s time to call in sportscasters Chris Berman or Bob Costas to sort things out. On a more serious note, the results of all this litigation will impact whether these products will be unavailable in specific countries around the world. For example, the iPhone 4S might be banned in certain countries if courts there find Samsung’s patents infringed in those countries. In the U.S., the ITC could ban infringing phones or tablets, and Samsung’s products will be banned in the U.S. if the Court of Appeals reverses the denial of the injunction in the California case.
On the other hand, if injunctions are not issued where there is patent infringement, the expectation of exclusivity long associated with a patent will have been seriously impacted. Stay tuned on the smartphone of your choice, if it’s still available.