Various news agencies including AFP report on a statement that Samsung sent to the media, according to which statement the company lost a cellular standard-essential patent (SEP) lawsuit against Apple in Japan. [Update] I have received information from a reliable source that the outcome-determinative issues were all related to FRAND licensing and standard-setting misconduct. I'm trying to find out in more detail what the Tokyo-based court said in its decision. [/Update]
The patent-in-suit corresponds to U.S. Patent No. 7,447,516 on a "method and apparatus for data transmission in a mobile telecommunication system supporting enhanced uplink service", which a California jury did not find infringed last summer. This is a 3G declared-essential patent.
Of the 25 SEP assertions by Samsung against Apple that have either been dropped or come to judgment by now, only three have been successful: two in Samsung's own country (South Korea) and a third one in the Netherlands, where injunctive relief (which Samsung was also pursuing in Japan, while it has meanwhile withdrawn its European SEP-based injunction requests) had been ruled out beforehand and Samsung will receive only a minor amount of damages. Today's loss in Japan is the 22nd SEP assertion that went nowhere. In all fairness, this number includes one stayed case in Germany: after the nullity (invalidation) proceedings that are still ongoing in a parallel case, the infringement case could be resumed, but the patent was considered unlikely to survive in its current form and may no longer be standard-essential in an amended version.
In a recent filing with U.S. antitrust authority the Federal Trade Commission, Apple highlighted Samsung and Google's dismal track record with assertions of declared-essential patents against the iPhone maker:
"Apple's experience has shown that declared-essential patent holders often fail to satisfy their burdens of proof on these issues in litigation. For example, MMI has asserted ten declared-essential patents against Apple in the United States and Germany. Nine of those patents have been found invalid or not infringed (or both). Similarly, Samsung has asserted over 20 allegedly essential patents against Apple. To date, Samsung has lost thirteen decisions (either because of non-infringement or invalidity or both) and won only three. In addition, Samsung has dropped eight other declared-essential patents, tacitly recognizing the defects in those patents."
That was before today's ruling. The number of lost decisions has now gone up to 14. If the eight withdrawn patents are added, that's 22 unsuccessful SEP assertions -- 21 on grounds of non-infringement and/or invalidity, and one for FRAND reasons.
It really wouldn't make sense for FRAND rates (whether determined by arbitrators or federal courts) to be set based on a totally unjustified presumption of essentiality. In connection with cellular standards and many other standards relevant to the ongoing smartphone patent disputes no independent authority actually verifies whether a declared-essential patent is actually essential. Litigation is always the moment of truth for a patent, and it turns out to be the truth that there's a whole lot of overdeclaration going on. Apple proposes a pragmatic solution to this problem: rather than presume that all declared-essential patents are indeed valid and essential or analyze an entire portfolio, an arbitrator or court should evaluate a "representative set" of declared-essential patents.
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