A Google lawyer testified on Tuesday that the software maker, pursuant to its contractual obligations, agreed to take over defense of some of the claims in Apple’s current patent lawsuit as well as to indemnify Samsung should it lose on those claims.
Apple played deposition testimony from Google lawyer James Maccoun, who verified emails in which Google agreed to provide partial or full indemnity with regard to four patents as well as to take over defense of those claims.
Of the four patents Google over which offered to cover at least some costs, two were dropped from the case before the trial began. The two patents that remain in the case, the ’414 and ’959 patents, cover background synchronization and universal search, respectively.
A Samsung representative declined to comment as to which, if any claims, Google was handling the defense and/or providing indemnification. A Google representative declined to comment.
Apple has sued Samsung for infringement of five patents and argued it should have to pay upward of $2 billion. Samsung maintains its products don’t infringe Apple’s patents nor are the patents valid in the first place. It also says that if it is found to have infringed, damages should be significantly less than $2 billion.
Although Google was seen as a shadow figure in the case — most of the patents in this trial have to do with functions of Android or Google’s apps — this was the first evidence shown to the jury that Google is playing a central role in the defense. Samsung did call several Google witnesses as part of its defense case, including Hiroshi Lockheimer, a top Android engineer.
While many of the features Apple is suing over are software features created by Google, patent law allows companies to sue over the end products that contain infringing code. And Samsung provides a more attractive legal target, given that it makes significant revenue and profit from Android-based devices, while Google itself profits only indirectly, giving Android away for free.
Google’s obligations to defend Samsung stem, in part, from the “Mobile Application Distribution Agreement” under which Samsung agreed to distribute various Google applications, such as Gmail, on its Android devices.
Maccoun’s testimony included references to a variety of emails between Google and Samsung between May and December of 2012 detailing Google’s willingness to take on Samsung’s legal defense. Apple also read into the record a Samsung response from September 2012 in which it said that it was not seeking indemnification from any party.
A Samsung representative could not immediately comment on the reasons for that response, given the e-mail threads that had already started between Google and Samsung over indemnity.
While neither Google nor Samsung would get into specifics of what the two parties have ultimately agreed to in terms of liability, defense costs or responsibility for legal strategy, it is fair to say that Google is participating actively in at least some of the defense and that the two sides are collaborating closely. Samsung’s law firm Quinn Emanuel, has defended HTC, Google and Motorola in past cases.
Google has participated, at various levels, in other lawsuits that have accused Android and Android devices of patent infringement. In a case between HTC and Nokia, for example, Google intervened so that it could be more directly involved.
As to how the costs and liability may be divided, it is worth understanding the difference between the open source parts of the Android operating system, for which Google is likely not offering indemnity, as compared to the proprietary apps, such as Gmail and the Google Search box, that are provided under license and for which device makers cannot change any code.
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