Late on Monday, Judge Lucy Koh of the United States District for the Northern District of California denied, for the time being, Apple's post-appeal push for an injunction against the Samsung Galaxy Tab 10.1 over an iPad-related design patent. This is unrelated to the merits of the motion. Apple is invited, and definitely won't decline the invitation, to renew its motion after the United States Court of Appeals for the Federal Circuit (CAFC), which published its opinion on Apple's appeal in mid-May, has issued a formal mandate to the district court.
Apple asked the CAFC for issuance of the mandate on the same day on which it brought its motion for a preliminary injunction (May 18, four days after the opinion came down), but on May 29, Samsung filed a pre-announced petition for rehearing and rehearing en banc of the panel decision. As a result, Judge Koh agrees with Samsung that her court doesn't have jurisdiction over this matter until the process at the CAFC is formally concluded. For now, there's still a possibility that the CAFC "may rehear the matter, alter or amend the opinion, or otherwise change the scope of issues that must be addressed on remand" by Judge Koh's court, in which case she says a preliminary injunction entered prior to the final CAFC decision "would create confusion".
Apple had argued that Judge Koh could enter an injunction in accordance under Rule 62(c) in accordance with the United States v. El-O-Pathic Pharmacy decision, a 1951 case in which a district court acted prior to a formal mandate in order to protect the public from harmful, misbranded drugs. Obviously, the Galaxy Tab 10.1 is not a threat to consumers. Apple argued that the "status quo" should be preserved, but Apple's definition of "status quo" was the market situation prior to the launch of the Galaxy Tab 10.1, while Samsung argued that the status quo was the situation that after Judge Koh's December 2011 denial of Apple's first preliminary injunction motion.
A hearing on Apple's Galaxy Tab 10.1-related motion had been scheduled for Thursday, June 7, but the court session will now be focused on a preliminary injunction motion Apple brought against the Galaxy Nexus smartphone in February 2012.
At first sight, it may appear to be an about-face on Judge Koh's part that she now agrees with Samsung on her lack of jurisdiction while her first reaction to Apple's motion was to set a tight briefing schedule, pursuant to which Samsung filed an opposition brief on May 25, which Apple replied to on May 31 (see the first bullet point in this recent post). But she saw the sense of urgency and apparently wanted to set a schedule that would enable the parties to discuss this motion at the June 7 hearing. In the meantime, she has concluded that Apple's motion was premature. But things could now fall into place very quickly after the CAFC issues a mandate. If the mandate is absolutely consistent with the May 14 CAFC opinion, there will presumably be a tight schedule for the parties to refile their pleadings. If the mandate differs from the May 14 CAFc opinion, the parties will need sufficient time to adjust their argument to the new situation.
In the meantime, Samsung benefits from further delay.
Galaxy S III: the obvious next target
On a related note, Samsung's launch of the Galaxy S III, which all major U.S. carriers will resell, could also result in a new motion for a preliminary injunction. But it appears that the design of the S III is much more distinguishable from Apple's products than that of its predecessors, so Apple would have to assert utility (technical) rather than design patents. Getting the S III banned (or forcing Samsung to modify it significantly in order to work around a ban) would be a very significant victory for Apple. What Apple needs to find are some suitable technical patents. If those patents are older, then Apple can still argue that the Galaxy S III is a new competitive challenge, but Samsung would argue that Apple's infringement allegations could already have been brought (or have indeed been brought) against older Samsung products. One possibility that Apple might consider is to use largely the same patents as in its motion against the Galaxy Nexus. In that case, there would be a risk of the court deciding to adjudicate both motions together, but with the hearing already scheduled for this week, it would be a bit late for this. It's possible that Apple will now wait and see what perspective on its Nexus motion Judge Koh indicates at the Thursday hearing, and then decide on its course of action for the S III.
Apple is still in the process of finding a "winning team" of patents that it can assert against Android-based products. That quest is strategically more important than Apple's ability to win a decision against the S III. In the United States, courts have been slow to adjudicate Apple's claims against Android, but Apple may make some significant progress with the California trial against Samsung, which is scheduled to commence at the end of next month. It's possible that Apple now focuses on the summer trial rather than start a new process relating to the S III.
In Germany, most of Apple's lawsuits against Samsung have been stayed pending clarification of the validity of the asserted intellectual property rights. If and when some of those patents and utility models are upheld, they may become pretty powerful weapons. Apple still has many more (including some rather new) European patents that it can assert here, and I'm sure any future Apple patent action against Samsung will list the S III among the accused products.
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