The bitter patent dispute between Apple and Samsung intensified yesterday, after Samsung moved to counter-sue Apple for patent infringement. It’s the latest salvo not only in the technology wars but in an increasing battle over intellectual property.

The Samsung play signals a new stage in the bitter patent dispute, which upgrades more often than iTunes. The debate has broadened from Apple’s multi-touch heuristics technology, of which the late Steve Jobs is credited as inventor, to Samsung’s Wideband Code Division Multiple Access and HSPA patents.

Senior law lecturer and intellectual property specialist Kimberlee Weatherall, from the University of Queensland, believes Apple’s relatively late entry into the telecommunications industry had left it with ground to cover in the symbiotic cross-licensing game that preceded it.

“Apple has only recently come into the phone space. What tended to happen in the past was cross-licensing which led to the sharing of technologies; company A would license to company B, and company B to company A with some sort of payment involved,” she explained to Crikey.

“When Apple came into the market, it wasn’t able to get the same cross-licensing deals, which has been a cause of some of the disturbance.”

She says patents covering hardware, software and combinations of the two are nothing new, but the scope and specification of the action signals a change in the way businesses were using technology patents.

Intellectual property activist-turned-analyst Florian Mueller said in an interview with Wired.com that Apple was using patents in order to build monopoly, unlike Microsoft which uses them as leverage to raise cash and strike-up licensing deals.

“Microsoft really seeks and optimises its products for differentiation. Apple takes a more exclusionary approach to patent enforcement,” he said.

Not that Microsoft is a champion of fair competition. The humble computer mouse provides an historical example — was it so vigorously contested following its genesis?

Douglas Engelbart applied for a patent on his “X-Y Position Indicator for a Display System” in 1967, and received it in 1970. Engelbart never received royalties for the invention, and SRI International, where Engelbart worked, reportedly licensed the mouse to Apple for about $40,000.

In the meantime, in 1968, German company Telefunken had developed the first mouse with a roller-ball function. According to German magazine CT, Telefunken didn’t think the “Rollkugel” (German for “rolling ball”) was worthy of a patent, and didn’t even bother to apply. The mouse was produced by other companies such as Xerox before Apple’s Lisa computer, named after Jobs’ daughter and the first computer with a graphical interface as opposed to text, brought the mouse into the mainstream in 1983.

The explosion of technology since the mouse’s conception has been immense. The mouse, keyboard, and graphical interface have all become integral parts of our technologies. Until now.

Now the difference between single and multi-touch technology is fodder for courts in more than 20 countries. Furthermore, The Wall Street Journal‘s report into Apple’s injunction to have the Australian Federal Court’s case delayed until at least after Christmas — keeping Samsung’s products out of stores over the shopping binge — leaves no illusions as to how much lower this battle will sink.

“The dispute is part of a wider global battle, including litigation in Europe and the US, in which two of the world’s biggest technology companies are vying for a share in the $16 billion market for tablet computers,” it reported.

Weatherall agrees the injunction is a delying tactic to gain a lead time advantage, but says the outcome of the case, given its international scope, is difficult to speculate on.

“What happens will depend on what happens everywhere else,” she said. “One can’t really say whether we’ll see that sooner or later or if we get a judgment in Federal Court next year.”

Peter Fray

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