Recently Apple was given a setback by Judge Koh, she schedule their request for injunctive relief against Samsung’s infringing devices until 6th December. According to FossPatent, Apple is requesting an earlier hearing. This is in light of the fact that Samsung’s request for lifting the injunction on their Galaxy Tabs 10.1 is shedule for a much earlier date, 20th September.
Mueller writes, “At close of business on Thursday, Apple filed a request for permission to bring a motion for reconsideration of Judge Koh’s scheduling decisions relating to certain post-trial proceedings. Apple complains that the court currently has “asymmetrical” schedules for its decision on Samsung’s request to dissolve the Galaxy Tab 10.1 injunction (hearing in September) and for its decision on Apple’s request for injunctive relief over the patents the jury found infringed (hearing in December).”
According to Mueller:
“This is not just a minor scheduling issue. This has the potential to affect the probability of Samsung being allowed again to sell tablets in the United States that look very much like the iPad, not just this Christmas Selling Season but also beyond, at least until the appeals court decides. And looking beyond this matter, it highlights the equal-treatment dilemma that has been plaguing this California lawsuit for some time, especially recently.
Just like Samsung previously (and successfully) argued that there should be an adverse inference jury instruction against both parties, or against neither one, Apple now demands equal treatment as well. Apple argues that “[its] motion for injunctive relief is more urgent than Samsung’s request to dissolve the [Galaxy Tab 10.1] injunction”, but in any event, “Samsung’s motion certainly should not be addressed before Apple’s motion for injunctive relief”. In other words, if Apple doesn’t get a new injunction in time for the Christmas Selling Season, it at least wants the existing one to stay in place.
At first sight, this may look like Apple doesn’t want Samsung to enjoy an injunction-free Christmas Selling Season (the Galaxy Nexus injunction is a separate story and related to a different lawsuit). But there’s much more to it. It’s not just about whether the Galaxy Tab 10.1 is available in the United States in October or November. The injunction is not limited to the Galaxy Tab 10.1. It also covers any future products that are “no more than colorably different”. The most important question is whether Samsung can launch future, commercially more important tablets in the U.S. that bear the same kind of resemblance with the iPad.
Just like I disagreed with Samsung’s demand for equal treatment in the adverse inference context, I now think that the potential dissolution of the Galaxy Tab 10.1 injunction is objectively more urgent than the grant of a whole new injunction. That said, Apple’s motion flags an inconsistency in Judge Koh’s reasoning for denying Apple the opportunity to win a preliminary injunction because of overlaps between the parties’ upcoming Rule 50 motions (motions to overrule the jury) and their requests relating to injunctive relief. If the right order in which to decide these issues is to adjudicate the Rule 50’s first (or at least simultaneously), then a decision to dissolve the Galaxy Tab 10.1 injunction prior to Apple’s Rule 50 motion would put the cart before the horse.”