Why Samsung must negotiate. Why Apple won't settle.

The federal judge overseeing the Northern California front of the global smartphone patent war has the power to bring the CEOs of Apple and Samsung -- Tim Cook and Choi Gee-sung -- to a mediation session, but even he can't force a settlement.

The differences between the kinds of patents the two companies are bringing to the table may simply be too great. Samsung may have an equally powerful arsenal of patents at its disposal -- including many covering the fundamental technologies of cellular telephony that Apple relies upon -- but those patents are not so easily deployed in a court of law. Many of Samsung's telecommunications patents were submitted to the technical committees in charge of setting international standards under so-falled FRAND terms, whereby a company is permitted to collect royalties for use of its proprietary technology, but must negotiate those royalties for rates that are "fair, reasonable and non-discriminatory." Samsung has tried to use those standards-essential patents against Apple, accusing the company in countersuits of exploiting them without permission, something Apple may well be doing. But as a legal strategy this carries risks, because as long as Apple is willing to pay for the use of Samsung's patents, Samsung is required to negotiate terms that are fair and reasonable and don't try to unduly punish Apple.