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Judge begs Apple and Samsung to make friends

Terms of Apple-HTC licensing deal made public, including arbitration process for future disputes

By CAROLINE GABRIEL

Published: 7 December, 2012

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Judge Lucy Koh, who is presiding over the Apple-Samsung patents fight in federal court in Silicon Valley, has once again urged the two giants to make peace.

After a hearing on Thursday, she seemed near the end of her patience, saying: "It's time for global peace." She added: "Is there anything the court can do? I'm more than willing to issue orders. It would be good for consumers, good for the industry, good for the parties." Apple and Samsung met ahead of the trial to discuss a settlement, in court-mandated talks that did not lead to a resolution.


Koh is echoing a line increasingly heard from her fellow judges in handset IPR cases round the world - that the costly and distracting tit-for-tat cases and appeals are damaging for consumer choice and innovation. After Apple raised hopes of a broader truce by settling with HTC last month, Samsung took a stubborn line, with its mobile chief insisting it had no plans to negotiate with Apple. However, one of the Korean firm's attorneys, Charles Verhoeven, was in more conciliatory mood in court, saying, as reported by CNet: "We are willing. The ball's in their court."

This was the San Jose court where Samsung suffered its biggest loss against Apple to date when a jury awarded over $!bn in damages against it for infringing Apple patents. The validity of some of those patents, however, has now been questioned by the US Patents and Trademarks Office and the judgement will go to appeal, though Samsung is requesting a retrial, citing jury misconduct. Both sides are also trying to broaden their respective claims to include newer device models and larger damages.

Samsung has been granted access to the terms of Apple's licensing deal with HTC, on the grounds that it almost certainly contains some of the same patents as in the Korean firm's case, and could weaken Apple's decision to pursue product injunctions. Many elements of the deal, excluding actual royalties and other commercial items, must be made fully public, according to a judge.

Under the deal, HTC is forbidden from making and selling mobile devices that copy what is described as the 'distinctive Apple user experience', according to a redacted version of the document, filed in a California court. Examples of technologies which could be included in that 'distinctive' definition include the 'slide to unlock' feature at the bottom of the screen - but another element at the heart of several trials, 'pinch to zoom' would not count.

This would be categorized as a 'cloned feature', and disputes over cloning are to be referred for arbitration, if the two firms fail to agree. If arbitration goes against HTC, it would have to remove a cloned element within 90 days. Only features designed directly by HTC - not third party software such as Android - are included in this process. Any arbitration requests are to be submitted to the International Centre for Dispute Resolution, and hearings will be held in Paris.

The agreement does not give HTC rights to Apple's design patents.

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