July 2012 Archives

If you read this story, the first thing that it says (in the gray box beneath the "Banned Too" graphic) is that a US judge has ruled that Samsung is in violation of four patents by Apple for it's Galaxy Nexus (a great phone might I add). Ignoring the validity or wisdom of software patents for a moment (that's a topic for a completely different post), let's break this down.

IANAL, but no one has decided anything, for one. The judge has granted a preliminary injunction against Samsung. The bar for a preliminary injunction in the United States is four-fold:

1) The likelihood of success on the merits of the case. Note that the ACTUAL success has not yet been decided.
2) The moving party must face the likelihood of irreparable damage if the conduct is allowed to continue.
3) The balance of harms weighs in the favor of the party seeking the injunction - i.e. the moving party (Apple) stands to harm more from the continued conduct than Samsung does by not being allowed to continue.
4) The public interest would be served by the injunction.

All that the judge has decided is that the test above is fulfilled - most importantly, Apple has demonstrated that they would suffer irreparable harm (in lost iPhone sales) if the Galaxy Nexus were allowed to be sold.

Do I agree with even the granting of a preliminary injunction? Absolutely not. This is Apple becoming SCO, and nothing more. They're arguing cases against the wrong people (going after consumers rather than the producer of the allegedly infringing product, presumably because they know that device manufacturers don't have the coffers that Google does to mount a protracted defense and are likely to settle rather than face that possibility). One can hope that the tactic will reduce them to the irrelevance of SCO in the long term - nothing more than a litigation machine of failed cases.
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