At 8 PM local California time on Friday, Apple filed a motion for a U.S. preliminary injunction against Samsung's Galaxy Tab 10.1. The motion is based on a ruling by the Court of Appeals for the Federal Circuit (CAFC), which came down four days earlier and sided with Apple on the question of whether an iPad-related design patent (U.S. Patent No. D504,889) is likely valid. It also comes only three calendar days before the two companies' CEOs and chief lawyers will hold court-moderated settlement talks in San Francisco.
Apple's motion is fairly likely to succeed. If and when it does, there will be formal U.S. bans in place against all three of the leading Android device makers. Also on Friday, the ITC ordered a U.S. import ban against Motorola's Android-based devices (to the extent those infringe a particular Microsoft patent), and in December, the U.S. trade agency also banned HTC's products that infringe a particular Apple patent -- as a result, two HTC product rollouts just got delayed.
In parallel to its new preliminary injunction motion, Apple asks Judge Lucy Koh to rule without another hearing. That is a reasonable demand, given that a preliminary injunction hearing involving this same issue already took place last October (and that the CAFC also held a hearing in April). In fact, one of the CAFC judges even issued a dissenting opinion according to which the ruling, which vacated the related part of a previous denial of a preliminary injunction motion in order for Apple to be able to bring a new motion, didn't go far enough. Circuit Judge Kathleen O'Malley argued that the CAFC should have reversed the decision in order to provided Apple with immediate injunctive relief in light of the irreparable harm it is suffering. But the majority of the judges saw "no reason to believe that there will necessarily be delay, or if there is delay that it will be unjustifiable". The majority said that if Judge O'Malley "is correct that the findings the district court made in the smartphone part of this case regarding the balance of hardships and the public interest are readily transferable to the tablet part of the case, the district court should be able to make that determination in short order, thus minimizing the amount of delay". Judge Koh's denial of a preliminary injunction performed the related analysis with respect to two other intellectual property rights (an iPhone design patent and a "rubber-banding" software patent) but didn't reach that question for the iPad design patent, since that one was deemed invalid. The majority of the CAFC therefore wanted to be deferential to the district court and not engage in a factual determination.
Apple proposes to give Samsung until May 25 to respond, and would file its reply brief five days later. At any rate, Judge Koh won't grant this motion during the settlement talks that are scheduled for Monday and Tuesday. But if those talks fails (which is what I expect to happen), the injunction might come down very soon.
The same district court (Northern District of California) will hold a hearing on Apple's second preliminary injunction motion against Samsung (filed in February 2012 and targeting the Galaxy Nexus, a smartphone Samsung developed together with Google) on June 7 at 1:30 PM local time. I'm sure Samsung will ask for a hearing on Apple's new Galaxy Tab 10.1 injunction request, and should Judge Koh unexpectedly grant another hearing on that one, she might as well put this on the agenda for June 7.
A U.S. preliminary injunction against the Galaxy Tab 10.1 won't be devastating for Samsung's business. It will basically be an embarrassment and it may have some temporary effects on the company's related revenues. There will without a doubt be a redesigned Galaxy Tab 10.1, just like Samsung responded to a German injunction (over what is essentially the European equivalent (with minor differences) of the iPad design patent) with a modified product named Galaxy Tab 10.1N. Apple also requested a preliminary injunction against that one, but the Düsseldorf Regional Court denied it because the judge concluded that the design had become sufficiently distinct from the exclusive scope of protection that Apple can claim.
These kinds of decisions mostly have a line-drawing effect, which in a way benefits both parties. For Apple, every such decision (even if it loses) means that courts clarify the scope of exclusive protection of its rights. But for the defendant, Samsung, the court rulings also clarify the boundaries of that scope and provide valuable hints as to what modifications are likely sufficient to steer clear of infringement.
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