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Apple Inc.’s smartphone and tablet war with Samsung Electronics Co. has been fairly one-sided in Apple’s favor as of late. Apple, which has accused Samsung of copying the iPhone and iPad, has won injunctions against Samsung smartphones in the Netherlands and Samsung tablets in Germany and Australia. (Samsung has appealed in Australia, and the parties are due back in the Federal Court of Australia on December 9 to determine whether the high court will hear the appeal). All told, the two companies have filed at least 30 suits against one another on four continents in the last eight months, had asked for a temporary injunction against Samsung’s Galaxy S 4G, Infuse 4G and Droid Charge smartphones, as well as the Galaxy Tab 10.1 Tablet. In a 65-page opinion, federal district court judge Lucy Koh held that Apple and its attorneys at Morrison & Foerster and Wilmer Cutler Pickering Hale and Dorr had failed to meet the high burden of demonstrating irreparable harm if the court didn’t issue the injunction. Even though Koh found that Apple was likely to succeed on the merits at trial and prove that Samsung infringed its two iPhone patents (Patents ’677 and ’087) and its patent for scrolling on a touch-screen (Patent ’381), it had not shown that it would lose market share, customers or goodwill absent the injunction. Apple, which has accused Samsung of blatantly copying its products, argued that its unique designs were integral to maintaining its market position. “Wide product distribution and extensive design-centric advertising have generated goodwill in the iPhone and iPad designs of incalculable value. Samsung’s sale of products that mimic Apple’s designs threatens to erode the value of the designs and attenuate the hard-won link in the public’s mind between the designs and Apple,” Apple said in its motion for a temporary injunction. Koh, however, held that it wasn’t clear how much design mattered to smartphone purchasers, and that Samsung had provided some evidence that Apple’s potential loss in marketshare and customers wasn’t related to Samsung’s product design. Koh found that Apple’s strongest argument for irreparable harm was in the tablet realm, noting that Apple’s market share decreased 20 percent and Samsung’s went up by 17 percent after Samsung introduced its tablet. Koh held that design seemed to be a more important factor in driving demand for tablets, and noted that the two products looked alike. To illustrate that point, during oral arguments she held up both tablets and asked Samsung’s counsel to identify their client’s product. Quinn Emanuel partner Kathleen Sullivan took a long time before she identified the Samsung tablet, according to an article on the October hearing by Amy Miller at our affiliate, The Recorder. But Koh denied the injunction because she found substantial questions about the validity of the iPad patent (Patent ’889) due to the existence of potential obvious prior art, namely a 1994 proposal by Fidler/Knight Ridder for a tablet-style e-reader. “The Court finds that the 1994 Fidler/Knight Ridder tablet creates ‘basically the same visual impression’ as the [iPad] tablet,” Koh wrote. “This ruling confirms our long-held view that Apple’s arguments lack merit,” Samsung said in a statement. “In particular, the court has recognized that Samsung has raised substantial questions about the validity of certain Apple design patents. We are confident that we can demonstrate the distinctiveness of Samsung’s mobile devices when the case goes to trial next year.” Apple’s lead attorney, Harold McElhinny of Morrison & Foerster, referred comments to his client, which did not respond to a request for comment. Samsung’s lead attorney, Charles Verhoeven of Quinn Emanuel, did not respond to a request for comment, either.

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