posted by Thom Holwerda on Sat 3rd Dec 2011 19:34 UTC
IconAnd yet another ruling. In April this year, Apple sued Samsung over several design patents and a single software patent regarding various Galaxy smartphones and tablets. Late last night, US District Judge Lucy Koh denied Apple's request for a preliminary injunction against Samsung. The actual ruling, though, is a mixed bag - Samsung is found infringing (but it's a "close question") on Apple's design and software patents (no real patents in play here, folks), but Apple has failed completely in providing any form of proof that Samsung is causing irreparable harm to Apple.

The ruling is quite detailed with its 65 pages, but it's not overly complicated or filled with legalise. In fact, it was surprisingly easy to read, and the judge has argued her case well. While the scale tipped in Samsung's favour overall, many oppositions from the Korean company were brushed aside, and there's absolutely no certainty that the full court case will have a similarly favourable outcome for Samsung.


Galaxy S 4G and Infuse 4G

In fact, the judge concludes that the Galaxy S 4G and Infuse 4G infringe upon Apple's design patents - but that it is a "close question". However, in order to receive a preliminary injunction in the US, Apple must also successfully argue that it will suffer irreparable harm from Samsung's products - and this is where Apple failed. Badly.

First, Apple has put forth that Samsung's products will erode Apple's design distinctiveness, which will damage Apple's goodwill. The judge, however, notes that Apple doesn't actually provide any proof for this claim. "Without any concrete evidence to support its argument, Apple has not yet established that this harm to its reputation for innovation is likely to occur," the judge writes.

Second, Apple argues that because its brand is indistinct from its product design, Samsung's infringing products will diminish the value of Apple's brand. The judge pretty much declares this argument bonkers, because Apple is apparently trying to apply the concept of brand dilution (from trademark law) to patent law. "Apple has offered no argument that trademark doctrines are applicable to design patent infringement cases," the judge notes.

The judge further adds that even if design patent infringement could lead to brand dilution, Apple has not given any evidence that such dilution actually takes place. "The declarations Apple offers echo its general argument that Apple's advertisements associate product design with the Apple brand. While such ads might show that design is important to Apple's marketing efforts, they have no bearing on the impact of Samsung's products on Apple as a brand," the judge notes, "Without more evidence - for example, evidence of consumer confusion, or consumer surveys showing blurring of the Samsung and Apple brands - Apple has not demonstrated that brand dilution is likely to occur."

I think this is going to be a very tough thing for Apple to prove in the way the judge wants them to. I have never heard of any case where people are mixing up iPhones with Samsung's phones - I mean, the presence of the logos is pretty distinctive, and, of course, people are far more attuned to distinguishing brands than many think. The judge even notes that the relatively high prices of smartphones forces people to pay more attention to details during the purchasing process.

Thirdly, Apple argues that Samsung's infringing products cause Apple to lose market share - permanently - which may offer ground for irreparable harm. Sadly, this section is filled with censored pieces of text, making it a bit harder to fully grasp the parties' and the judge's reasoning. Lots of survey results and sales data seems to be blacked out. The general conclusion is clear, though: Apple has not provided sufficient evidence to suggest that Samsung's allegedly infringing products will cause irreparable harm.

Then there's the issue of how hard an injunction would hit the party receiving it. The judge concludes that because the issue of infringement is a "close question", granting a preliminary injunction could very well be incredibly unfair to Samsung because the full court case might determine Samsung not to be infringing. As far as the public interest goes, the balance doesn't tip in either party's favour; the public has an interest in the protection of patent rights, but this is counterbalanced by Samsung's right to compete.


Galaxy Tab

As far Samsung's tablets go, the picture is entirely different. Here, the judge believes Samsung will most likely succeed in invalidating Apple's design patent. Just to refresh your memory - this design patent, D'889, is exactly the same as the Community Design (#003781832) Apple is peddling here in Europe, with the difference being that the Community Design was filed in May, 2004, while the design patent is from 2005.

Samsung presented both the Knight Ridder and the Compaq TC 1000 as cases of prior art, and the judge accepted them. The judge did state that the Galaxy Tab 10.1 is likely to infringe Apple's design patent, but that the cases of prior art will invalidate the patent anyway - as such, Apple has failed to convince the court that it would be successful in a full trial.

Unlike the case with the smartphones, Apple has, however, convinced the judge that the absence of a preliminary injunction would cause irreparable harm to Apple, because the tablet market is smaller and contains fewer relevant players. However, due to Samsung's strong showing with prior art invalidating the design patent in question, the preliminary injunction is still denied.


The scrolling-bouncing-whatever software patent

Apple also sued over a software patent - the same one the company entered in the Dutch courts. Like I explained in that case, this patent "covers scrolling through a collection of photos in full screen, and more specifically, how the photo bounces back after too short a swipe (or whatever - I have a life, I'm not reading the entire damn thing)". The Dutch courts found Samsung's photo gallery application (so not Android itself) to be infringing this software patent. Samsung then circumvented this patent via a software update even before the Dutch injunction came into effect, rendering this victory useless for Apple.

Like the Dutch courts, the American judge also believes Samsung will be found to infringe upon this patent in a full court case. This covers the Galaxy Tab 10.1, Inguse 4G, Galaxy S 4G, and the Droid Charge. However, there's some legal nitpicking going on here regarding the prior art that will most likely infuriate the software developers among us.

Samsung provided several cases of prior art (LaunchTile and its email application, and something called Lira Reference). Both of these employ the same method of bounce-back and snapping as Apple's patent describes, but they still cannot be regarded as prior art because these cases do not employ these methods exclusively; they also employ other methods.

I'm sure this is legally sound with regards to the law, but anyone with more than two brain cells to rub together can see how idiotic this is. So, you found prior art which uses the patented method, but just because the prior art also uses another method sometimes, it's no longer prior art. I wish I could use an expletive, because that's the only way to describe this idiotic technicality.

Still, the judge will not grant the preliminary injunction because, again, Apple has failed to provide any evidence that the infringement of the '381 patent will cause irreparable harm. And, as we've seen in The Netherlands, Samsung already has a software update ready to address this issue - the specific US patent might differ from the specific European patent, but I'm sure it wouldn't be too hard to take it into account. If all else fails, Samsung could simply remove the gallery altogether.


Conclusion

So, this ruling is a bit of a mixed bag for both companies. Samsung is found infringing in many cases, but Apple has completely failed - and with completely failed I really mean completely and utterly failed - to prove that Samsung is causing Apple harm.

So, for now this is is a victory for Samsung, but the full court case may eventually tip the balance to Cupertino if Apple manages to come up with substantial proof that Samsung is causing it irreparable harm - not an easy task. Similarly, Samsung may still be able to better argue that it is either not infringing, or that Apple's design and software patents are invalid.

Also, I'm glad I'm not a lawyer.

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