The argument was made on the second day of a trial in one of the main arenas for the gladiatorial Apple-Samsung battle, Australia. Here, Samsung is alleging, in a countersuit, that Apple infringes three of its 3G patents in the iPhone 4 and 4S and the iPad 2. Apple said it uses but does not infringe on one of the items – “a method and apparatus for data transmission in a mobile telecommunication system supporting enhanced uplink service.”
Apple lawyer Stephen Burley said the IPR was used via Qualcomm's baseband chips, but that Samsung had failed to check how the device actually performs the function at issue. The standard is open to interpretation in this case and Apple has not taken the same approach as Samsung in implementing, he said.
Burley also denied Samsung's claims that Apple had rejected further negotiations to license its IPR on a “FRAND” (fair, reasonable and non-discriminatory) basis. “Apple has not refused to negotiate with Samsung. Apple continues to be willing to negotiate on FRAND terms for Samsung's standards essential patents, including the three involved in this suit," he said. The case will continue in late August.
Another twist in the saga emerged from the Australian hearings, when Samsung admitted it had ended a patents truce with Qualcomm once the Apple war kicked off. Previously, the Korean firm had signed a deal not to sue Qualcomm or its customers for using Samsung 3G IPR, but that was called off when Apple filed its lawsuit against the Galaxy Tab. According to court documents in Australia, this pact was first made back in 1993.
“There was an agreement between Samsung and Qualcomm. That agreement was not a licence agreement. It contains a contractual provision that Samsung would not sue Qualcomm or customers of Qualcomm who apply [the 3G patents].”
Apple seeks $2.5 billion
Meanwhile, over in the US, Apple has decided that Samsung owes it $2.5 billion to settle American infringement claims. According to Florian Mueller of Foss Patents, the amount is based on per-unit royalties for several technologies - $2.02 for an “overscroll bounce” patent, $3.10 for the “scrolling API” technology, $2.02 for “tap to zoom and navigate,” and in addition, $24 to cover the use of any of Apple's “design patents or trade dress rights.” That, once again, puts design rather than technology IPR at the heart of the claims, a controversial tactic which has been a hallmark of Apple‟s assault on its arch-rival.