Just as we expected, Judge Lucy Koh has rejected Samsung’s request to get its hands on Apple’s iPhone 5 and the iPad 3. She did not rule from the bench this time, as Apple tweaked its complaint the night before Friday’s hearing, adding a host of new Samsung products to its copy-cat list. Instead, the order was presented on paper in an 11-page document.
She explained that while Samsung is entitled to “parity”, the request for unreleased, unrevealed products was a bit overreaching. That’s the good news for Apple. The bad news is that the rejection of Samsung’s motion isn’t permanent. A brief passage in the document hints that Apple may not get the preliminary injunction it will likely request to bar Samsung from selling certain products in the U.S. Instead, the court may need to evaluate the motion after the iPhone 5 and iPad 3 are available for inspection, to decide whether or not “consumer confusion” will exist.
Here’s that tricky little passage:
Samsung is free to argue, for instance, that there is little likelihood of confusion because consumers will not encounter its products side-by-side with the iPhone 4 or iPad 2, but rather with Apple’s next generation iPhone and iPad. Similarly, as to proximity, Samsung is free to argue that because the iPhone 4 and iPad 2 will soon be outmoded and reduced in price, they are not being sold (or very soon will not be sold) to the same class of purchasers who are likely to buy new Samsung products. By choosing to allege infringement only of its current products, Apple opens itself up to these arguments.
The possibility of a preliminary injunction would certainly give Apple the upper-hand, possibly even getting enough leverage to force Samsung into an early settlement. Although Koh’s passage seems to lean toward a no-go when it comes to a potential injunction, that’s not to say that Apple won’t get its way. It’s all a matter of timing.
Samsung has every right to argue that Apple’s current products aren’t going to sell side-by-side with upcoming Galaxy products, as they will be out-of-date as soon as the iPhone 5 hits shelves. According to the rumor mill, this is only a few short months away. By that time, it will be Samsung’s unreleased and unannounced products that could pose an infringement threat, and the two will have to duke it out all over again.