Via Twitter I learned that the Tribunal de Grande Instance de Paris, the first-instance court for all French patent lawsuits, has denied Samsung's request for a preliminary injunction against the iPhone 4S.
Benjamin Ferran, a reporter for French newspaper Le Figaro, attended the pronouncement of the ruling and tweeted about the outcome ("rejected"), the main reason ("disproportionate"), and the reimbursement of legal fees Samsung now owes to Apple (100,000 euros, which is certainly just a very small fraction of what Apple actually spent on its defense but when courts award such reimbursements at all, the amounts they order are almost always below a party's actual costs in such high-stakes, complex cases as this one).I attended large parts of the second court hearing, which took place on November 17 and was the final one prior to today's ruling, and predicted that Samsung was going to lose with this bid for a France-wide iPhone 4S ban. It became clear that the legal standard for a preliminary injunction is reasonably high in France, and Apple's lawyers made a number of points that I couldn't verify in their entirety but which appeared strong enough to dissuade the court from ordering a ban.
UPDATE: Copy of ruling and further analysis
Here's the 22-page ruling, which I uploaded to Scribd:11-12-08 French TGI Ruling on Samsung PI Motion Against iPhone 4S
A significant part of the ruling summarizes the litigation history between those two parties. Most of it was known to me but I also found some new information in it. For example, Samsung filed a declaratory judgment action in Spain against the same Community design (the EU equivalent of a U.S. design patent) based on which Apple won a preliminary injunction in Germany. Not only is Samsung challenging the validity of that Community design (and four others) but it has also asked a Spanish court to declare that Samsung does not infringe it. Furthermore, while I knew that Apple is suing Motorola over some German patents, I wasn't previously aware of the fact that Apple filed lawsuits against Samsung in Mannheim over six patents. I will try to find out more about those litigations and attend some or all of the related hearings.
As far as the French case is concerned, Samsung's motion failed miserably. Compared to this defeat, Apple actually got a far more favorable result in California, even though it was also denied a preliminary injunction. The way in which Samsung lost shows that its strategy may be fundamentally flawed.
Some of what the French ruling says indicates that Samsung's use of 3G-essential patents is going to fail everywhere at least as far as the iPhone 4S is concerned, and even though the Mannheim Regional Court may formally hand Samsung an injunction (or two or three) against Apple next year, I now doubt that Samsung will be able to enforce any such ruling in Germany against the iPhone 4S. The baseband chip for the iPhone 4S is provided by Qualcomm, and the French ruling makes it clear that there's every indication that Samsung's patent rights are exhausted and Apple is, therefore, effectively licensed. The French court also doesn't attach any weight to Samsung's claim that it terminated its license agreement with Qualcomm as far as Apple is concerned, especially in light of the fact that Samsung's declared-essential patents are subject to the rules of ETSI, a standard-setting organization, and therefore the license it granted to Qualcomm (which by extension benefits Apple) was irrevocable (that's the third paragraph on page 20 of the ruling). ETSI's rules are subject to French law, which gives particular significance to today's decision in this context.
Because of this patent exhaustion issue, the court found that Apple contested on a serious basis the likelihood of Samsung's success on the merits and didn't even go into any technical details of those patents.
The court furthermore held that Samsung's request for an injunction was "disproportionate" and stated that this fact was apparent, without citing particular reasons for this finding. The court just made a general reference to the facts it discussed in its ruling.
FRAND licensing obligations were part of what the court discussed, but it appears that the patent exhaustion issue was so straightforward and clear to the court that there was no need to elaborate too much on Apple's other defenses. Also, the court denied Apple's request to hold that Samsung violated its FRAND licensing obligations simply because that kind of request for a declaratory judgment can and must be brought in a regular proceeding, not in a fast-track proceeding concerning a preliminary injunction motion. But the judge "underscores" in the bottommost paragraph on page 14 Samsung's FRAND obligations and that a holder of standards-essential patents is not allowed to capitalize on his "necessarily dominant position" in abusive ways against competitors.
Having read the ruling in detail, I have the impression that Samsung's French lawyers were on a "mission impossible". It appears that their case was far too weak to win a preliminary injunction, and in such a situation even the best lawyers are pretty much lost.
Both parties are largely unsuccessful with their requests for preliminary injunctions
Last Friday, Apple's motion for a US-wide preliminary injunction against four Samsung products was also rejected. Previously, Samsung failed with a request for an injunction in the Netherlands, where Apple prevailed primarily on the basis of a FRAND defense. The iPhone 4S wasn't specifically accused in the Dutch case.
On Friday next week (December 16, 2011), a court in Milan, Italy will hold a second hearing on another Samsung bid to ban the iPhone 4S. The outcome of the French case will likely be taken note of by the Italian court.
If the Italian bid also fails, the time may come for both Apple and Samsung to realize that you can't win a marathon with a sprint. The problem with those "sprints" -- in terms of requests for preliminary injunctions that courts can grant after a fast-track proceeding -- is that when they fail, they do nothing to enhance the credibility of the respective plaintiff.
I fully understand that time is of the essence. Both companies are embroiled in more than 30 lawsuits in a minimum of 12 courts in at least 9 countries on 4 continents, and either litigant is trying hard to win the race to the first court ruling that will have major business impact. That's the name of the game in those kinds of disputes. It's not just whether you prevail with a given claim, it's also a question of when (relative to your rival) you win favorable, impactful rulings. But patent cases are complex and don't lend themselves to requests for preliminary injunctions, and if FRAND issues and the concept of patent exhaustion (meaning that an alleged infringer has a license by virtue of buying a component from a licensed vendor) come into play, those cases become even more complex and, as a result, courts are even less comfortable to take decisions on the fast track.
Therefore, the way to go is to file lawsuits in jurisdictions that resolve cases reasonably fast in a main proceeding without having to ask for a fast track. The ITC in Washington, DC is a good example. There are some rocket dockets among U.S. district courts. The Mannheim Regional Court is Europe's rocket docket: all the cases there on which I report are regular main proceedings, not fast-track proceedings triggered by requests for preliminary injunctions.
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