On Dec. 2, 2011, U.S. District Judge Lucy Koh denied Apple Inc.’s motion to preliminarily enjoin Samsung Electronics Co. Ltd. from making, using, offering to sell, selling within or importing into the United States certain smart phones and tablet computers. Apple Inc. v. Samsung Electronics Ltd., No. 11-CV-01846, 2011 U.S. Dist. Lexis 139049 (N.D. Calif. Dec. 2, 2011). Apple’s motion was premised upon allegations that these Samsung products infringed certain Apple design and utility patents. Those patents, according to Apple, protect its world-famous iPad and iPhone designs.

Although Samsung is no doubt breathing a sigh of relief that it does not have to take its products off the shelves, a close look at Koh’s decision reveals that there are still rough waters ahead for the company. First, Koh found that Samsung likely infringed two of Apple’s patents and that these patents are likely valid. Second, Apple recently appealed Koh’s denial, presenting novel arguments that may well have some traction given the iconic nature of Apple’s designs. Whatever the outcome of this legal saga (which is also pending in various jurisdictions all over the world), it will greatly shape the future of the smart phone and tablet market, not only in terms of market share for the litigants and other potential competitors, but also with respect to the evolution of designs for smart phones and tablets.

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