The preliminary junction that the Düsseldorf Regional Court granted Apple against the Galaxy Tab 10.1 on August 9, 2011, became known that same day. Less than a month later, Samsung was forced to remove the Galaxy Tab 7.7 from a trade show booth, a fact that was attributed to a separate injunction. What was not previously known is the fact that Apple also obtained a preliminary injunction against the Galaxy Tab 8.9.
That information was revealed late last night when Apple filed, with the U.S. District Court for the Northern District of California, a redacted version of its September 30, 2011 reply to Samsung's opposition to Apple's motion for a US-wide preliminary injunction. Here's footnote 1 of that filing (click to enlarge):
That footnote also references the preliminary injunction Apple won in the Netherlands against three Samsung Galaxy smartphones and the dispute that resulted in an Australian preliminary injunction two weeks after Apple's reply brief.
I said a few months ago that Apple was collecting those international victories (not only, but to some extent) as trophies in order to make it psychologically and politically easier for an American court to grant a preliminary injunction as well. The fact that Apple highlighted those international achievements in footnote 1 on page 1 of its reply brief in the U.S. lawsuit confirms this assessment.
Interestingly, the jury is still out on the actual business impact of those foreign preliminary injunctions:
In Germany, Samsung has meanwhile launched the Galaxy Tab 10.1N, a redesigned version that may (or may not) work around Apple's asserted design-related right.
On December 20, there will be an appellate hearing on the original preliminary injunction, but the more interesting question at this stage is whether Apple will also attack the 10.1N.
The Dutch injunction didn't take immediate effect. Samsung had enough time to modify its operating software. As a Samsung Galaxy user, I, too, noticed the change as a result of an update, but I doubt that many "average users" (average in terms of not being particularly interested in patent issues) even took note.
On Friday, an Australian judge heard Samsung's appeal and indicated that the injunction may be lifted over concerns that the initial decision "looks terribly fair to Apple and not terribly fair to Samsung".
Apple may very well win a preliminary injunction of some scope
It's difficult to estimate what the decision in California will be, and when it will come down. Two weeks ago I already wrote that the decision appears overdue (it certainly does now, approximately seven weeks after the hearing), but I also said that it's not possible to conclude from the delay what the inclination of the judge may be.
I looked at the redacted versions of Apple's reply brief and its exhibits. Despite tons of missing information, my overall impression is that Apple is not at all unlikely (though very far from certain) to win a preliminary injunction in the United States. At the October 13 hearing, Samsung's own lead counsel had problems telling a Galaxy Tab from an iPad at a certain distance, which impressively supports any theory of confusing similarity. I also feel that a few of the things that Samsung's own experts said in their depositions are useful ammunition for Apple. There may be validity issues with some of Apple's asserted design patents, but if the judge concludes that one or more of those are valid, then I think Samsung is in trouble because Apple has a strong infringement case here and Samsung's public interest argument (including the public interest statements Verizon and T-Mobile submitted) doesn't appear too convincing, even more so since the passage of time has reduced the relevance of all Christmas Selling Season-related arguments (the most important shopping weekend, Thanksgiving Weekend, was last weekend).
Yesterday, Judge Lucy Koh was quite active. She entered several administrative orders. I sense we're now really very close to a decision.
If Apple wins, what remains to be seen is whether Samsung can design around the scope of an injunction like it tried (and possibly succeeded) in Germany. For example, the Galaxy Tab 10.1N might also have to be considered non-infringing under US law.
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