updated 09:01 pm EST, Thu January 30, 2014
Apple says bans are the price Samsung has to pay for copying
Apple and Samsung were in court on Thursday in front of US District Court Judge Lucy Koh, with the former arguing that its successful verdicts against Samsung entitles it to sales bans on the affected products (even though none of them are still offered for sale). Samsung, meanwhile, protested that the injunctions would "create fear and uncertainty" among suppliers, since Apple could seek bans on current and future products as well.
Apple's attorney, William Lee, told the judge that Samsung had been found guilty of infringing Apple patents on nearly two dozen phone models, and that Apple had consequently lost sales to a direct competitor. He said that the "natural, inexorable result [of such actions] is an injunction," reported Reuters. Samsung's attorney, Kathleen Sullivan, said that a sales ban would open the door for Apple to return to court to complain that other Samsung products should also be banned, and that an injunction would harm "carriers and retailers with whom Samsung has very important customer relationships."
It is hard to predict how Judge Koh might rule, and she made no decision during the hearing nor indicated when she might arrive at a ruling. Koh has previously been disinclined to issue sales injunctions, but her previous denial of an injunction to Apple was successfully appealed with instructions that she reconsider her reasoning, a clear sign that a higher court would likely overturn another denial.
The injunctions, which are largely moot as Samsung no longer sells the affected phone models, would come on top of a record $930 million final verdict against Samsung. Apple has argued that even though the bans would only be on discontinued phones, the punishment is needed as an incentive to get Samsung to stop copying Apple's designs, software and patents.
Apple would indeed, as Samsung's attorney points out, get to file further injunction requests far more quickly if it gets a first one, which would speed up the process between Apple claiming infringement and a result -- meaning that any current or future infringing phones that are no more than "colorably different" from the infringing ones might get pulled while they are still available if they continue to infringe Apple patents, which could be a blow to Samsung's smartphone business and reputation.
Apple and Samsung are still making an effort to reach a wide-ranging agreement that would settle most current patent disputes and perhaps prevent future ones. Apple is said to be offering Samsung its standard cross-patent licensing agreement, which makes two unalterable demands: an "anti-cloning" clause that would bar Samsung from making products that copy Apple's products (and which is said to be a major sticking point in the negotiations) and a requirement that "standards-essential patents" (SEPs) be licensed fairly, priced reasonably and without discrimination for the two companies' rival status (known as the FRAND principle). Non-SEP patents would still be negotiated separately, and access to SEPs and FRAND licensing would not be used as a bartering or legal weapon -- principles Apple has maintained and enacted in license arrangements with Microsoft, Nokia and others.
The next negotiation session between the two companies is set for February 19, and will involve the heads of both companies. Failing a settlement, a second trial will begin in California at the end of March, regarding a different suite of patents than those decided in the first trial. The second trial will focus more on technologies related to Siri, and might see Android creator Google more deeply dragged into the dispute.