Why Samsung took the Apple patent battle international

We knew Samsung would file a patent countersuit against Apple, but why did Samsung do so in three countries outside the US?

It is no surprise that Samsung retaliated against Apple's claims of patent infringement with some patent accusations of its own, but the fact that Samsung chose to file lawsuits internationally against Apple in three different countries seems a bit perplexing. While it may seem like a random move on the part of Samsung to include the world in the patent silliness, there is a method to the madness.

Why wouldn't Samsung simply countersue Apple in the US District Court of Northern California where Apple filed its lawsuit against Samsung in the first place? Did Samsung just throw some darts at a map on the wall in order to make its litigation an equal opportunity for the whole world, or is there perhaps some carefully considered logic to Samsung's choice of venues?

I asked Florian Mueller, a technology patent and intellectual property expert who closely follows litigation like this and shares his insights on his blog, FOSS Patents, for his thoughts on the strategy behind Samsung's international countersuits.

Mueller explained to me that companies like Samsung choose the venue for filing a lawsuit based on a variety of criteria. The company wants to win a legal victory in the largest possible market, but also wants to ensure a high degree of certainty that it can win, and it wants to achieve victory as quickly as possible. According to Mueller, the first company that wins a legal victory or is awarded an injunction of some kind has the advantage and gains significant leverage for any ongoing settlement negotiations.

For example, consider the legal sleight of hand that Verizon had to go through in order to find a loophole that would allow it to challenge the FCC net neutrality framework in the United States Court of Appeals for the District of Columbia. The case was eventually tossed on a technicality, but Verizon made a concerted effort to take the legal battle to that venue because that court has an established history of being sympathetic to Internet providers and finding against the FCC.

But, expedience is probably a larger factor than empathy in Samsung's choice of nations to file patent suits against Apple. Mueller told me that patent litigation in the United States is a painfully slow process. Many companies also submit legal challenges to the International Trade Commission (ITC) because that organization typically hands down a decision within 18 months.

However, recent cases before the ITC don't seem to be going the way the litigants intended, so Samsung might see the ITC as being too risky. Rather than bog things down in US federal courts, though, Samsung opted to take the battle international. Some courts may also afford a political or psychological advantage for an "underdog" competitor being oppressed by an American tech giant like Apple.

Mueller notes that an international, multi-jurisdictional legal battle can be a logistical nightmare, and consume considerable resources, but global players like Apple and Samsung have the skills, resources, and lawyers on retainer to take the challenge on.

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Tony Bradley

PC World (US online)
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