Talks

Apple-Samsung mediation talks: Don't hold your breath

January 9, 2014: 8:32 AM ET

A judge can lead two CEOs to water, but she can't make them drink.

Screen Shot 2014-01-09 at 7.42.47 AMFORTUNE -- A big patent infringement trial is looming. The issues are complex; the docket is jammed. The judge orders the two sides to submit a proposal for mediation. The principals -- the CEOs of Apple (AAPL) and Samsung -- set dates. The press excitedly reports them.

That was in April 2012. The talks, not surprisingly, went nowhere. The case went to trial.

Now it's January 2014, and it's deja vu all over again.

At stake are a different set of patents than the ones a jury found Samsung to have infringed (to the tune of roughly $1 billion in damages).

These patents are potentially more far-reaching. They're all functional; no design or user interface stuff.

And the infringement claims are against a newer set of Samsung devices -- up to and including the Galaxy S3, but not the Galaxy S4 or later.

FOSS Patents' Florian Mueller, for one, thinks Samsung will eventually sign a licensing deal -- as Nokia did two years ago. But the two sides will do it on their schedule, not the court's.

"A few years ago," Mueller writes, "companies of this profile generally settled their disputes out of court ahead of a trial. There was much more fear that the impact of a lost patent trial (and post-trial injunctions) could be devastating. By now many industry players ... are much less scared by a patent infringement suit than they used to be. They know that most patents in this industry are actually invalid as granted, and the patent claims that are ultimately found valid are generally much less powerful while the broader ones rarely survive. In most disputes it still makes sense for parties to agree on licensing -- but more and more companies choose litigation over licensing until the latter is really cheap (and "cheap" is not just a question of money in a dispute like Apple-Samsung but very much a question of non-monetary terms such as "anti-cloning" provisions).

The talks are to be held by or before Feb. 19. The trial is scheduled for March.

LINK: CEO-level Apple-Samsung settlement discussions to take place within six weeks

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