Apple lawyers to defend Samsung in Microsoft licensing dispute

September 10, 2014

When my whip-smart Reuters colleague Dan Levine noticed Tuesday that George Riley and several other lawyers from O’Melveny & Myers had entered appearances as defense counsel for Samsung in its month-old dispute with Microsoft over allegedly unpaid patent royalties, my immediate thought was that O’Melveny’s new assignment was another sign of the waning tensions between Apple and the South Korean electronics company.

O’Melveny, after all, regularly represents Apple and has done so since Steve Jobs’ 1997 return to the company he founded. Riley was a close friend and adviser to Jobs and has appeared for Apple in everything from patent litigation and securities cases to the no-poaching antitrust collusion suit underway in federal court in San Jose, California. Apple and Samsung, as all the world knows, have been at each other’s throats in global smartphone litigation for the past four or five years, but the two companies called a partial truce in August, when they agreed to drop all of their patent litigation against one another in jurisdictions outside of the United States. I figured that O’Melveny wouldn’t have agreed to defend Samsung against Microsoft’s royalties claims if Apple hadn’t blessed the assignment, reflecting Apple’s recent overseas detente with Samsung.

I may have jumped to the wrong conclusion. O’Melveny declined to comment on its client relationships, but the public record shows that the firm has been representing Samsung for years – even in patent litigation over component smartphone parts and even as O’Melveny counseled Apple in the smartphone wars.

Samsung, after all, was a supplier of memory chips and graphics components before it started making and selling devices that compete with Apple iPhones and iPads. Apple, in fact, was a major Samsung customer. O’Melveny’s work for Samsung, which dates back to at least 2008, even includes patent infringement cases in which Samsung and Apple were co-defendants. Only after I saw the extent of O’Melveny’s relationship with Samsung did I understand why Riley and his O’Melveny partners haven’t represented Apple in its patent litigation against the Korean company; the firm was obviously conflicted.

But it’s presumably clear to defend Samsung against Microsoft’s breach-of-contract allegations in Manhattan federal district court, even though Microsoft and Apple have (broadly speaking) been allied in protesting supposedly unwarranted patent licensing demands for essential smart device components. Defending Samsung doesn’t seem to raise any positional conflict concerns since Microsoft’s suit raises highly specific claims about Samsung payments based on licensing agreements between the two companies and Nokia, the handset maker Microsoft agreed to acquire last fall.

More than proof of burgeoning cooperation between Apple and Samsung, O’Melveny’s new assignment is yet another example of the delicate balancing act required of law firms that represent global technology conglomerates whose alliances may shift from case to case. Sometimes Apple and Samsung are co-defendants; sometimes they’re the most bitter of enemies. Sometimes Microsoft and Apple are allies; sometimes they’re suing each other.

Tech engagements aren’t as plentiful as they were in the smartphone wars, when Apple, Samsung, Microsoft, Motorola and other smart device companies deployed elite IP cadres to courthouses and regulatory agencies across the United States, Europe and beyond. As I’ve said before, it took years of fighting and untold tens (if not hundreds) of millions of dollars in legal fees for all concerned to realize that patent litigation is not a viable strategy for global domination of the smartphone market. So it’s all the more important for firms like O’Melveny to maintain solid ties with clients they represented before the smartphone wars began – which, in O’Melveny’s case, means both Apple and Samsung.

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