SAN JOSE, Calif. (CN) – Apple has launched a new attempt to stop Samsung Electronics from selling tablet computers after the Federal Circuit said the first bid for an injunction was unfairly denied.
The move comes as Apple boss Tim Cook and Samsung chief executive Choi Gee-sung are scheduled to meet Monday for a two-day, court-ordered settlement conference in San Francisco. The two CEOs and their attorneys are scheduled to discuss ways to end a yearlong intellectual property battle over the Samsung Tab 10.1 before a trial begins in late July.
Apple’s new motion says that any delay will cause irreparable harm and that last week’s appellate ruling leaves room for the court to issue a sales ban without a hearing.
U.S. District Judge Lucy Koh can rely on Apple’s first motion for a preliminary injunction and the appellate ruling to make her decision, Apple says.
“Each day that Samsung continues to sell its infringing Tab 10.1 causes additional harm to Apple through design dilution, lost sales, lost market share, and lost future sales of tag-along products,” the motion says.
Apple attorney Harold McIlhenny of Morrison Foerster argues that the appearance of the Tab 10.1 is so close to that of the iPad 2, they are tough to tell apart.
The motion recounts an earlier episode in which Koh asked Samsung attorney Kathleen Sullivan to distinguish between two tablet computers in open court.
Apple claims that the design of Samsung’s new products “slavishly copy” iPhone and iPad products.
“Indeed, when the court held up Apple’s iPad 2 and Samsung’s infringing tablet device at the preliminary injunction hearing, Samsung’s own lawyer was unable to distinguish between them for “a long time” without consulting with co-counsel,” the Friday filing states.
In July 2011, the computer giant asked the court to stop Samsung from “making, using, offering to sell, or selling within the United States, or importing into the United States, the following recently released products: the Galaxy S 4G, Infuse 4G, and Droid Charge smartphones, and the Galaxy Tab 10.1 tablet computer.”
When Judge Koh refused in December to halt Samsung’s tablet sales, she based her decision on the existence of two earlier attempts by other companies to create tablet readers. Apple now says that it deserves immediate relief since the Federal Circuit reversed that part of Koh’s ruling.
“While this court had concluded that Apple had failed to establish likely success on the merits, the Federal Circuit held instead that Samsung had failed to raise a substantial question as to validity of the D’889 patent based on obviousness,” the motion states. “The Federal Circuit sustained this court’s finding that Apple will likely suffer irreparable harm from Samsung’s continued sales of the Tab 10.1, and remanded solely for this court to assess the balance of hardships and public interest factors.”
“Apple has already endured ten months of that irreparable harm since filing its preliminary injunction motion in July 2011,” the motion also states. “Now that the Federal Circuit has issued its opinion holding that this court erred in concluding that Samsung had raised substantial questions as to the validity of the D’889 patent, Apple should not have to wait any longer for injunctive relief.”