Phone makers’ epic battle heralds new era

By Pravin Bowry

A lawsuit in the United States between two mobile phone manufacturers is set to herald epic battles all over the world in technological advances and jurisdictional matters.

A court in the United States last week awarded a US based company, Apple Inc.US $1.05 Billion in damages against its Korean rival, Samsung Electronics Company Limited for infringement of six of its seven patents.

The award is being dubbed as the most significant in a global battle over patents and intellectual property. As a result of the federal courts jury verdict, the mobile phone industry will change all over the world and the consequences reflected even in Kenya.

The verdict comes only a fortnight after Apple reached the milestone of surpassing the previous record (set by Microsoft in 1999) by reaching a record $620 billion market value thereby becoming the most valuable company to have ever traded in the history of the world.

Interesting legal issues are surfacing with international jurisdictional dimensions. A South Korean court recently ruled that both technology firms had copied each other’s patents. British courts have recently thrown out claims by the US Company that Samsung had infringed its copyrights. There are pending suits in over 16 countries between these two companies relating to same facts in issue.

Samsung is geared for an appeal describing the award as “a loss for the American consumer leading to fewer choices, less innovation and potentially higher prices”

Samsung contends that “the patent law is being manipulated to give one company a monopoly over rectangles with rounded corners”.

The facts of the case which the nine person jury had to consider related to 700 questions about each other sides’ claim relating to rival infringement of intellectual property rights.

According to the foreman of the jury, one pivotal document which turned the tide in favour of Apple was an internal 2010 Samsung email describing how Google Inc. asked the South Korean manufacturers to change the design of its product to look less like Apples.

The ramifications of the verdict are likely to vibrate globally when the Judge who presided over the four week trial considers Apple’s application that Samsung devices including the Samsung Galaxy Tab 10.1 computer as well as other Samsung products be banned from the market all over the world.

Other players in the industry are also likely to be caught up in the crossfire between the two giant companies.

Though Google is not involved in the case, Apple by going after the Android software is targeting Google, the makers of the Android software.

Microsoft and its main hardware partner Nokia are likely to be cautious of the legal developments though it is believed that Windows technology is different from the Apple technology.

What does all this forestall for Kenya?

We have the Industrial Property Act of 2001, Copyright Act of 2001 and the Anti-Counterfeit Act of 2008 all of which are geared towards protecting and promoting innovations and inventions of the mind per se.

All these laws combined deal with what is known as intellectual property rights which is divided into four categories; copyrights, patents, trademarks and industrial designs and excludes scientific theories, discoveries, mathematical methods, business schemes or rules.

Switch-off date

In Kenya, as in other developing countries, there is very little litigation on intellectual property rights and the country remains lax in dealing with cases of “pirated products and processes” save for big companies that have the time and resources to file lawsuits against persons and/or companies infringing on their protected inventions or processes.

The Global Software Piracy Study 2010 placed Kenya at number 25 of countries with the highest instances of using pirated software of up to 79%, which translates to about $85 million worth of unlicensed software. This is higher than any other East African country and yet very little is being done to curb the use of pirated software.

The government loses up to Sh30 million in revenue as a result of the piracy and counterfeit menace.

The latest stance taken by the government through the Communications Commission of Kenya is set to become operative on September 30, 2012, when the Commission in conjunction with mobile phone operators will switch off all counterfeit phones. This threat is yet to be seen as the Commission has postponed the switching off date since September last year.

The importance of the colossal award must underline the value of intellectual property which Kenyans are not exploiting. Kenyan inventions are not being patented due to the intricate provisions of the law.

The Industrial Property Act of 2001 incorporates the Paris Convention for the Protection of Industrial Property, the Patent Co-operation Treaty, the Locarno Agreement, the African Regional Industrial Property Organisation Protocol and the World Intellectual Property Organisation Convention.

The case must and does prove that original ideas once patented are worth billions of dollars.

The writer is a lawyer.

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