After losing over the $290 million dollar verdict in a California Court, Samsung has lost again in one of its patent cases against Apple in a German Court.

The court announced its decision to stay the German Samsung vs. Apple case pending a parallel nullity action before a Federal Patent Court of Germany. It acknowledged that there is an infringement but questions the validity of its patent. The patent subject of the case is a 3G standard-essential patent (SEP) on a "method for configuring gain factors for uplink service in radio telecommunication system."

Most of Samsung's cases against Apple involved SEPs and it is the core reason of Samsung's repeated defeat. According to a report by the Forbes Magazine, there are about at least three different classes of patents involved in the Apple vs. Samsung. The first are design patents which are similar to trademarks or copyrights. The second are "proper" patents which are the ones being used by Apple against Samsung. The third are standard-essential patents which are the ones being asserted by Samsung against Apple.

Some years ago, the treatment between "proper" patents and SEPs are the same. SEPs may be the subject of lawsuits where the patent holder may gain damages and demand for an import ban against the infringer. At present, however, a petition for import ban against an SEP violator is generally and normally denied by a judge.

SEPs are licensed under a fair, reasonable and nondiscriminatory basis. By adding the patent to the standard pool, you have in effect agreed to license it to any and everyone. Thus, an SEP owner gets only a few millions for damages in comparison to the hundreds of millions that come from "proper" patents.

SEPs had become less of a threat at present. Samsung is using SEPs while Apple is asserting "proper" patents. It is clear to see who has the upperhand. Unless Samsung changes its game plan, Apple is more likely to win the patent war.