In recent months, Apple won preliminary injunctions in Germany against three different form factors of Samsung's Android-based tablet computer: the Galaxy Tab 10.1, the Galaxy Tab 8.9, and the Galaxy Tab 7.7. And Cupertino is now shooting for its fourth German Galaxy Tab injunction:Dow Jones Newswires reports that Apple has filed a motion for a preliminary injunction against Samsung's Galaxy Tab 10.1N, and the Düsseldorf Regional Court has scheduled a hearing for December 22, 2011.
The Galaxy Tab 10.1N has the same technical specifications as the banned Galaxy Tab 10.1, but a different design that appears to have been created by Samsung's designers in close collaboration with their German lawyers.
Quite apparently, Apple believes that Samsung's design modifications didn't go far enough. Presumably, Apple will argue on the basis of both a design-related right (a so-called Community design) and rules against unfair competition. Apple did both of that in the summer, but after the court found Apple's asserted Community design infringed, it didn't have to analyze Apple's unfair competition claims. I think there's a greatly increased likelihood that those competition claims will be discussed at the December 22 hearing.
Without a doubt, Samsung will have filed a "Schutzschrift" ("protective pleading"), a document that enables a party expecting a motion for a preliminary injunction from a rival to prophylactically inform the court of its legal position. Samsung also did that in the summer, but based on what I heard from attendees of the hearing and read in a press release issued by the court, that pleading was presumably not too useful. It apparently failed to raise some important arguments. However, I'm sure Samsung's lawyers did a better job this time around.
I don't think the outcome of the December 22 hearing is predictable in any way. Samsung clearly upped the ante with its modified design, but even the 10.1N still makes a very iPad-like impression, at least based on the pictures I saw. Anything can happen. From a tactical point of view, it would make sense for Samsung to take a certain calculated risk and find out where the court draws the line. They wouldn't have launched the 10.1N if they didn't see a decent chance of this one being approved by the court, but if it takes them yet another iteration (or more than one) to get to the point of legal certainty, it's worth it with a view to future product generations.
Conversely, it also made a whole lot of sense for Apple to attack the 10.1N. Apple, too, needs clarification from the court as to what falls within the scope of its exclusive rights and what doesn't.
In order to have any chance of winning a preliminary injunction in Germany, it's generally recommended to bring a complaint within one month of acquiring knowledge of an actual or impending infringement. Some courts, including the Düsseldorf Regional Court, are more flexible and will consider extending that period to eight weeks or even beyond (in exceptional cases), but a plaintiff taking more time than four weeks will have to show good cause. Apple is clearly within the four-week window in this case anyway. With the original Galaxy Tab 10.1, Apple took more time.
Only two days before this hearing on the Galaxy Tab 10.1N, the Düsseldorf Higher Regional Court -- the appellate court right above the Düsseldorf Regional Court -- will hold a hearing on Samsung's appeal against the original Galaxy Tab 10.1 injunction. That first hearing could influence the second one in Samsung's favor. Should the appellate court throw out the original injunction, then the Galaxy Tab 10.1N should be fairly safe. But I think Samsung is more likely to defend the 10.1N than to successfully appeal the ruling on the 10.1.
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