Intellectual property

Apple Samsung Patent War Prompts Warning To Start-ups: Legal Matters

Apple-Samsung patent war prompts IP warning

By Michelle Hammond
Friday, 14 October 2011

Apple has won a Federal Court battle to stop Korean rival Samsung from selling its Galaxy Tab 10.1 in Australia, prompting a warning for start-ups to ensure their IP protection is ironclad.


Apple claims the Samsung tablet copies its iPad, infringing patents in relation to touch screens and the gestures that control them, resulting in a bitter patent war.


Federal Court judge Annabelle Bennett ruled yesterday there was “significant likelihood” Apple could prove patent infringement claims against the Galaxy Tab 10.1 when the dispute moved to a final hearing.


The ruling is a major win for Apple, as the Samsung tablet has been widely touted as the iPad’s most serious rival.


Samsung had originally planned to launch the Galaxy Tab 10.1 in Australia last month, but has agreed to postpone it until the patent row is resolved.


The companies are also embroiled in legal disputes in the United States, Europe, Japan and South Korea.


James Omond, head of commercial law firm Omond & Co., says the battle between Apple and Samsung is unique due to the size of both companies.


“This is two giants slugging it out, which is why they can both afford to be engaged [in a legal battle],” Omond says.


“If there’s something to be learned from this – where you would swear someone like Samsung has an army of patent attorneys to pour over the documents – is that they may have come to the decision that it’s a calculated risk [to infringe on Apple’s patents].”


“If you’re a start-up, perhaps you can take a calculated risk because if it all goes pear-shaped, you can just lock up the company if Apple comes knocking.”


“There’s not as much likelihood you will come to Apple’s attention, but you do need to be aware that if something like this does come up, you’re not going to have the deep pockets to fight it.”


With regard to technology, Omond says start-ups need to be very careful with the elements they incorporate into any new product.


“At every stage, whether it’s the name you give to a product or the technology you incorporate into it, you need to ask yourself: am I infringing on someone’s rights here?” he says.


“One element to look at is where you’re not manufacturing the product yourself by requiring componentry from third party suppliers.”


“Make sure you have a contract that includes a warrant that your use of the component will not infringe any third party IP rights.”


Omond also points out that patents are not universal, which has implications for start-ups looking to sell their products on a global scale.


“With globalisation the way it is, most businesses – especially manufacturing businesses – are going to want their product purchased worldwide,” Omond told StartupSmart.


“One of the issues with IP protection is that it’s a little bit ‘20th century’ in the territorial aspect of it. With a patent or trademark, you have to register on a country-by-country basis.”

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