Desperate Samsung Tries to Block iPhone in Asia, but Android's Still in Trouble [Update]

Last Updated Oct 17, 2011 4:38 PM EDT

If it's any day ending in a "y," Samsung and Apple (AAPL) must be suing each other for patent infringement. The latest news is that Samsung wants to block the sale of the iPhone 4S in Australia and Japan, claiming that the new device infringes Samsung's wireless patents. Consider it a response to Apple's win of a temporary injunction against the Galaxy Tab tablet in Australia (to say nothing of the EU) because Apple claims the device is an iPad ripoff.

Given Samsung's record in court so far, good luck.

At this point, Samsung is desperate, but it isn't the ultimate target. The same patent infringement challenges that might let Apple shut down Samsung's tablets are primarily directed the use of Google's (GOOG) mobile operating system and could eventually affect all Android hardware vendors. According to court filings, Apple would consider licensing its less important "lower level" patents (though there's no released detail as to which that might include), but not the most important ones. If successful in upholding those patents in court, Apple could and would force Android vendors to give up features critical to them competing with the iPad and iPhone. That would push Android into a lower tier market and out of the premium product category.

Apple racks up the wins
Apple has successfully taken action against Samsung. In addition to the Australia injunction, there is a temporary injunction prohibiting sale of the Galaxy Tab in many parts of the EU because of the likelihood that Apple will succeed in proving patent infringement on Samsung's part. Apple is making headway in California courts in preparing for an injunction against the Galaxy Tab in the U.S.

Apple has also moved well on other fronts. In July, an International Trade Commission judge ruled that HTC products had infringed on two Apple patents. (HTC appealed and a final decision is expected in December.) More importantly, the patents in question attack important parts of Android's architecture.

[Update: HTC just lost another round at the ITC, when a judge found that Apple did not infringe any of the four patents HTC asserted in the patent infringement suit that HTC filed against Apple.]

Apple's no Microsoft
Even worse for Android vendors and Google, Apple doesn't have Microsoft's (MSFT) inclinations to let companies it charges with patent infringement settle problems with a checkbook. Samsung arranged a royalty agreement with Microsoft on every Android device it shipped, which ended that channel of legal attack. But that won't be a good iTactic when it comes to Apple. As patent blogger Florian Mueller found in some court filings, Apple will be picky about what it licenses:
Mr Lutton was cross-examined about the Presentations and the Negotiations. Mr Lutton says that Apple Inc's core message in the Negotiations was that Samsung Electronics Co Limited was copying Apple Inc's products and that this 'had to stop'. The Negotiations concerned Apple's intellectual property more broadly and was not limited to its patents or the US equivalents of the Interlocutory Patents. Mr Lutton says that, as Samsung Electronics Co Limited was a valued partner of Apple Inc and as coexistence in the consumer electronics market was important to Apple, Apple Inc was willing to discuss the concept of possible licences. However, he emphasises that such discussion was part of the broader discussion of a framework by which Samsung Electronics Co Limited could continue to sell its products with some elements of Apple Inc's intellectual property, such as some 'lower level patents', available to them but would cease copying the features and functionality of Apple Inc's products, and the iPad in particular.
This is chilling. Apple is willing to license some patents so Samsung, which has been a close business partner (and will be a key vendor for the iPhone 5), could ship products so long as it didn't copy the "features and functionality" of iPhones and iPads. Translated: If you want to market a high-end smartphone or tablet, sell consumers on something completely different from what we make. Except, that's a tough order, as Apple has set expectations for mobile interfaces and features.

Think that Motorola, HTC, or most other Android vendors will get the level of cooperation that Samsung did? Not a chance. It's a squeeze play that continues to constrict as Apple continues to roll it out. And it's not as though Google and Android don't have their own problems, what with being unable to create a unified platform or even ship updates on time to all users. Android is a platform that faces a lot of problems.

Related: Image: Flickr user Sugar Pond, CC 2.0.
  • Erik Sherman On Twitter»

    Erik Sherman is a widely published writer and editor who also does select ghosting and corporate work. The views expressed in this column belong to Sherman and do not represent the views of CBS Interactive. Follow him on Twitter at @ErikSherman or on Facebook.

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