updated 01:00 pm EDT, Fri August 31, 2012
Could stop Samsung products being sold over holidays
Apple, as expected, as taken a page out of Samsung's playbook and filed to have its injunction claims against eight Samsung products moved up in light of Samsung's September hearing on tossing out the current injunction against the Galaxy Tab 10.1. Currently, Apple -- the victor in its patent claims over Samsung -- would have to wait until early December to get injunctions on infringing Samsung products.
During the pre-trial and trial phases, Samsung had routinely demanded "equal treatment" on both hearings and jury instructions, even when the facts did not support its case. When Samsung was found to have destroyed emails that could have helped Apple, the judge in the case initially was to have told the jury of this fact, and the company cried foul since a similar instruction was not given about the possibility that Apple may have done the same. The judge was eventually persuaded, without any evidence, to give the jury a similar instruction about Apple, but eventually the two companies agreed to drop the adverse instructions altogether.
The timing of the hearing may be playing a crucial role. Apple, naturally, does not want Samsung to be able to sell infringing products during the holiday shopping season, the largest and most profitable buying period of the year. In a filing to the court, the iPad maker argues that its motion for injunctive relief "is more urgent" than Samsung's sole claim, and "certainly should not be addressed before Apple's motion." At the least, it wants the current injunction against the Galaxy Tab 10.1 to stay in place until its own hearing.
In one of the few victories for Samsung in the landmark jury trial, the company was found not to be infringing on Apple's design patents with its 10.1-inch and very similar-looking iPad knockoff, though the device was found to be infringing several software patents along with many Samsung smartphones. The same tablet won bans in Australia and Germany because it was virtually indistinguishable from an iPad, even to Samsung's own lawyers. Samsung eventually made the Galaxy Tab 10.1N as a response that avoided the sales injunctions in those countries, and an Australian court eventually overturned the ban on the Galaxy Tab 10.1.
As is typical with cases of this nature, both Apple and Samsung have filed motions appealing to the judge to overturn the jury's verdict on parts of the rulings each didn't like. For Samsung, this would be virtually every finding the jury made: not only did it say Samsung was guilty of copying Apple and infringing on its patents, but it lost every single claim it made in its own countersuit against Apple. Apple's "Rule 50" motions seek to overturn mostly the finding on just the Galaxy Tab 10.1, which it is determined to stop from going on sale in the US, saying it is a lookalike that will confuse consumers and hurt Apple in the market.
Patent case analyst Florian Mueller argues that Apple is not simply trying to stop the Galaxy Tab 10.1 from appearing in time for Christmas buying, but that the injunction against it also includes "any future products that are no more than colorably different," which would prevent Samsung from lightly altering the tablet (as it did with the 10.1N) and getting around the injunction. The injunction against the Galaxy Tab 10.1 itself, which bars it from sale in the US, is likely to be dissolved if the jury's finding on that point is upheld.
As it stands now, Samsung's motion to dissolve the Galaxy Tab injunction would come before either company's "Rule 50" motions, which puts the cart before the horse. Judge Koh may have little choice but to acquiesce to Apple's request, or at least change the order of the hearings in order to give the companies a chance to argue for overturning portions of the jury's decision. Given the weight Judge Koh put on the jury instructions and worksheets, however, most outside observers believe that Koh is unlikely to tamper with most of the jury's findings.
Separately, Apple has already put in a request for a new permanent injunction against the Galaxy Tab 10.1 to replace the preliminary one in place now. It cites both Judge Koh's own preliminary finding of likely infringement and Circuit Court Judge O'Malley's dissenting opinion that there was a clear case of infringement (O'Malley was part of a three-judge panel that overturned Koh's original decision that the Galaxy Tab 10.1 did not infringe). [via Florian Mueller]