No Sales of Samsung Galaxy Tab, Judge Says

     SAN JOSE, Calif. (CN) – A federal judge has banned the sale of Samsung’s Galaxy Tab 10.1 tablet computers in the United States, finding that Apple would likely win an upcoming patent-infringement trial.
     Hours after entry of the decision Tuesday evening, Samsung said it would appeal the to the Federal Circuit.
     U.S. District Judge Lucy Koh ordered Samsung to stop importing and selling the Tab 10.1 and “any product that is no more than colorably different from this specified product and embodies any design contained in U.S. Design Patent No. D504,889.”
     “Given the strength of Apple’s case on the merits, and its likelihood of irreparable harm, the balance of hardships tips in Apple’s favor,” the order states. “This court already found that Samsung’s products are ‘virtually indistinguishable’ from Apple’s products, and that the Galaxy Tab 10.1 likely infringed on the D’889 Patent.”
     D’889 is the abbreviated form of Design Patent No. D504,889, which Apple obtained in 2005.
     Though Koh said in December that an ordinary observer would see obvious similarities between the Galaxy Tab 10.1 and the product described in D’889, she refused to issue an injunction.
     Noting questions about the patent’s validity in light of “prior art,” Koh said Samsung might have to show at trial that other designers had come up with similar designs in earlier patents.
     But the Federal Circuit vacated that ruling in May, urging Koh to re-examine patent D’889.
     A three-judge panel found that Apple was likely to succeed on its design claim for the tablet computer, and that a side-by-side comparison of Apple’s tablet and a tablet designed by Roger Fidler in 1994 show substantial differences in overall appearance.
     The court upheld Koh’s refusal to ban sales of Samsung smartphones because Apple had not shown Samsung causing irreparable harm regarding Apple’s patents that cover its products’ bezel shape, “bounce back” scrolling or highly reflective surface features.
     Koh cited the appellate court’s continuing jurisdiction in refusing to issue an injunction a few weeks ago, ,
     Samsung wanted the Federal Circuit to rehear oral arguments, but it refused last week.
     Now, nearly 12 months since Apple first asked the court to stop sales of the tablet computers, Koh has decided to stop sales of Samsung’s wildly popular products.
     “Although Samsung will necessarily be harmed by being forced to withdraw its product from the market before the merits can be determined after a full trial, the harm faced by Apple absent an injunction on the Galaxy Tab 10.1 is greater,” she wrote. “Apple’s interest in enforcing its patent rights is particularly strong because it has presented a strong case on the merits.”
     “In combination with the Federal Circuit’s determination that the D’889 Patent will likely withstand Samsung’s validity challenge, Apple has established a strong claim on the merits,” she added. “Additionally, the Federal Circuit did not upset this court’s finding that Apple has established a likelihood of irreparable harm absent an injunction. In comparison, Samsung’s concern over the losses suffered as a result of an injunction cannot overcome Apple’s showing.”
     The court rejected Samsung’s claimed that design should be considered only as part of analysis of overall product functionality. “This court previously found that design is an important driver in the demand for tablet sales,” Koh wrote.
     “Samsung’s argument that its business relationships would be damaged by an injunction rings hollow,” she added. “Samsung cannot be heard to complain about broken business relationships that it has established on infringing products.”
     Issuing an injunction furthers public interest because Samsung’r right to compete does not give it the right to compete “unfairly, by flooding the market with infringing products,” Koh said
     Apple first accused the Korean consumer electronics firm of selling knockoff smartphones and tablet computers that “slavishly copy” iPhone and iPad products in April 2011.
     Judge Koh issued Tuesday’s order without a hearing.
     “Further briefing and argument from the parties on the issue of the preliminary injunction is unnecessary,” she wrote. “Moreover, because this Court has already found that denial of an injunction would cause Apple irreparable harm, any further delay of the injunction is not justified.”
     The injunction will go into effect as soon as Apple puts up a $2.6 million bond, which is to be paid to Samsung in case the injunction is later reversed.
     Apple’s Tim Cook met in late May with Samsung’s Choi Gee-sung, but their court-ordered settlement talks went nowhere. Jury selection begins in late July.
     Samsung is represented by Charles Verhoeven, Kevin Johnson and Victoria Maroulis of Quinn Emanuel Urquhart & Sullivan.
     Morrison Foerster attorneys Harold McElhinny, Michael Jacobs and Jennifer Taylor represent Apple.

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