It is an international standard, ratified and maintained by the 3GPP (3rd Generation Partnership Project) and set forth by the ITU-R (international Telecommunications Union – Radiocommunications Sector).

Samsung has been part of setting that standard, and as such, are bound by FRAND contract agreements. Furthermore, they have voluntarily committed their patent portfolio to those conditions when they as part of their agreement with the standards body, and decided for themselves which patents were claimed to be Standards Essential.

Though there are various implementations, it is, nonetheless, an international industry standard.

Apple isn’t neccersarily gaming the system, but took the time to use it to their advantage.

The system may be wrong, but Apple isn’t doing anything illegal to get there.

Samsung COULD HAVE taken advantage of the system in the same way, and taken the time to file their own design patents, but Apple is really still the only company who takes design seriously, as a matter of course.

Most companies (and this is their problem) don’t think very much about design at all until either—hollywood comes a knocking asking for something specific, or Apple moves onto their turf.

Then they are struggling to play catch up, because Apple comes along, injects a level of “design” into the field and patents the heck out of it. They get caught flat-footed because apple takes a lot of time in the R&D stage, keeps it all very quiet, and use that time to get the design stage right, and properly protected before going to market.

Again, Samsung COULD have developed a rectangular touch screen phone and patented it first, but didn’t.

Again, all of the so called copied features in iOS from Android, Google or any of the android makers could have patented these design features, but didn’t leaving Apple free to implement them. If they had the patent’s, they could be suing apple, but they don’t.

It’s more sour grapes that they didn’t take the time to do it first than whining over welfare.

For years, companies like Samsung only really filed patents for things that would eventually be parts of Standards.

The reason is a standard makes your patent valuable.

I may have the best implementation of something in the world, but if it’s not part of an industry standard, no-one else will be using it.

In their minds, patenting non-standards essential inventions was sort of like finding out that the 10,000 acres of land you just brought is on Mars. They didn’t really take the time to patent any of these.

They patented things which would become part of the standard, made sure they were part of the standards setting bodies, ensured that their patents were essential to the standard, and then watched the money roll in as the standard was adopted by third parties.

Apple realised that in addition to standards essential patents, design could be a “De-Facto” standard, that if they invented (and patented) a design and form factor that people wanted, that the market would demand everything else look like this.

Again, Samsung and others had years of head start in the handset market, and could have done this earlier, but never did.

Now, they are in a hole which they dug for themselves through years of stalled innovation in the mobile handset market. All they have is SEP’s which they have committed to licensing fairly, and are reneging on that promise by using them in litigation.

I’m not saying that design patents are right, by the way, I don’t really think they are. What I am saying is that Samsung had many many years to patent rectangles with rounded corners, but they never did. They could have both used the same system in the same way, but only one party did.

Though the damage caused by design patents can hurt customers, the damage caused by using SEPs in littigation is completely different. They are not comparable.

If Samsung want to countersue Apple’s design claims, it should be based on their own design patent portfolio. Using a completely different kind of patent portfolio to “Get back at” apple, is opening a world of hurt on themselves, and more than that, on customers.

It’s a set of floodgates we can’t afford to open, unless you want a world where iPhone’s can only call other iPhones, samsung users can only call other samsungs, etc.

However, when it comes to how each is, for want of a better phrase, taking advantage of the current system, Apple seems more in the right, to me. The system is broken for sure, but Apple seems to be using the system properly (or as properly as possible with a fundamentally flawed system)

Apple hasn’t paid Samsung for any FRAND LTE payments because, it would seem, they haven’t yet released any products which infringe upon it. (I haven’t seen all of Samsung’s 4G LTE patents yet, but apparently the iPad didn’t infringe on any, or Apple paid for them, because Samsung haven’t sued yet.)

The issue is that Samsung have publicly committed to using FRAND patents in litigation, rather than saying “We have some patents you need, here are our FRAND licensing terms, if and when you release a device which requires them”.

They have taken a significant part for the FRAND framework (significantly the fair and non-discriminatory parts) and thrown them out the window. They have committed to defaulting to a course of action not permitted by the FRAND agreement Samsung made with the LTE standards body.

It’s worth remembering Apple have nearly half the number of LTE patents as Samsung in their own portfolio, and Samsung have a large number of shipping LTE products, at least some of which inevitably infringe on at least some of the patents.

Apple could have refused to license them to Samsung and pursued this course of action if they wanted, but haven’t.

As I say, say whatever you like about the validity of a lot of their trade dress, design and utility claims, when it comes to standards critical ones, one company is playing by the (perhaps broken) rules in this case, and one isn’t.

Apple’s patents are utility and design related, Samsung’s are Standards Essential.

Samsung chose to join the standards bodies, and in doing so, committed to FRAND licensing agreements.

They can’t have it both ways. They didn’t have to contribute to the standards if they didn’t want to, but they chose to. They can’t say “We’ve helped create a standard (LTE), but we want to retain the right to decide who can use that standard” because then it stops being a standard. (Could I say standard any more in that sentence?).

Say whatever you want about Apple and their litigiousness, when it comes to Standards Essential Patents (SEPs), they lead the way.

They regularly donate their patents to standards bodies, or commit to royalty free, not just FRAND terms for their SEP’s.

Rockstar Consortium and Apple proper have both committed not to using their Nortel, Freescale and home grown LTE patents for litigation, and committed to FRAND licensing.

Say what you want about Samsung and their current “victimised” role, but when it comes to SEPs they’ve not played fair.

They joined the standards bodies, while simultaneously hiding and holding back critical patents from them. They committed to FRAND licensing, but are still threatening to sue Apple over FRAND covered patents.

Like it or not, at least when it comes to this particular scuffle, Samsung is the one not playing fair, and Apple is by-the-books.

@Teche21 Technically, Motorola is now owned by Google, and Google inherit their dodgy FRAND suits (indeed, many speculate that they brought Motorola, knowing that they could continue those sorts of lawsuits without actually hurting their own brand).

Also HTC has got increasingly desperate recently in it’s litigation with Apple. As one after another of it’s patent claims have been thrown out, it too has started using FRAND patents against Apple (some of which it seems they don’t really own, and which Apple has already paid the real owners to use).

When you start suing others over Standards essential patents, already committed to Fair, Reasonable and Non-Discriminatory (FRAND) licensing terms, you’re opening up a whole world of hurt… on yourself. The EU and US are already investigating Samsung over FRAND discrimination, suing Apple all but guarantees the result of those investigations.

Apple wouldn’t even need to hold a single LTE patent to file a counterclaim against Samsung for FRAND discrimination (though clearly having a substantial patent portfolio yourself helps).

Like it them or not the utility patents (I have no real issue against those) and design patents (which I think need addressing) and trade-dress claims Apple has sued Samsung over do not have to be licensed fairly or non-discriminatively. It is entirely at the discretion of the patent holder what they do with them. Standards essential patents, however, MUST be licensed fairly and non-discriminatively to anyone who wishes to use them, subject, of course, to them paying the appropriate license fee, or negotiating other terms.

Apple’s LTE patent portfolio probably now means that they can negotiate a cross-licensing deal, rather than a fee-based one, but realistically, Samsung are in no position to refuse to license them to Apple, or anyone else.

And let’s not forget, although Apple have been very aggressive with some of their design and utility patents, they have always been more than accommodating with their standards-based ones—many of which have been given up to the standards bodies themselves and are now FREE, not just FRAND.

When it comes to the important stuff (such as the h.264 QuickTime Container patents, or HTML5 Canvas element patents, CUPS, Open CL, etc) Apple have always been more than willing to hand over their patents and code to independent standards bodies to make the world, not just their own software and hardware, better.

Samsung is being treated unjustly in America for whatever reason. Apple says , “but we patented this thing that we copied and then they copied us”. Samsung says, “but we INVENTED this brand new thing and brought it to market and they won’t pay to use a license”. The US court system just sides with apple blindly and ignoring any prior art, the fact that Apple ripped off Samsung and then awards damages to Apple.

I hope this gets to the supreme court quickly because I would love to see real justice.

SAMSUNG is building a huge reputation as not an honest or honorable contributor to Standards groups and as such will probably find itself a standards pariah and involved in serious anti-trust litigation. Apple and its partners agreed in NORTEL case to not use their LTE standards for injunction and would honor Fair Reasonable And Non-Discriminatory, FRAND, licensing. Importantly Apple has a history of honoring FRAND e.g., H.264 MPEG.

If you give two people the same materials and the both come up with variations of the same thing, that just means that one cheated or they were both headed in that direction to begin with. Eventually these two are going to clash so hard everything is just going to break.