Apple 2.0

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Apple has one more shot at Samsung's Galaxy Tab 10.1

October 2, 2012: 10:48 AM ET

Judge Koh lifted her preliminary injunction, but will rule on a permanent ban in December

iPad and Galaxy Tab 10.1

FORTUNE -- Samsung's Galaxy Tab 10.1 -- a tablet that copied Apple's (AAPL) iPad so slavishly that more than one judge had trouble telling them apart -- has become something of a legal football.

In June, Judge Lucy Koh granted a preliminary injunction blocking Samsung from selling the phone in the U.S.

"Although Samsung has a right to compete," she wrote in a ruling that must have been music to Apple's ears, "it does not have a right to compete unfairly, by flooding the market with infringing products."

Then in August the Apple v. Samsung jury that gave Apple nearly everything it asked for -- including damages of $1.05 billion -- ruled that the Tab DID NOT infringe Apple's design patents.

Samsung promptly asked that the preliminary injunction be lifted. Judge Koh kicked the decision up to the appeals court. The appeals court kicked it back to her. And on Monday, Judge Koh granted Samsung's motion, prompting a flood of "Samsung Wins" headlines and a press statement claiming vindication from Samsung.

But the Galaxy Tab is not out of the woods yet.

Given that Judge Koh had found Tab "virtually indistinguishable" from the iPad, and having read post-verdict remarks of a juror that suggested the jury's ruling was based on a misunderstanding of patent law, (see Did the jury blow the Galaxy Tab verdict?), Apple filed a so-called Rule 50 motion asking Judge Koh to overrule the jury.

Rule 50 allows a judge to issue a directed verdict when the evidence permits only one reasonable conclusion -- a conclusion different from the one the jury reached.

Directed verdicts are relatively uncommon, according to Christopher Carani, a design law expert at McAndrews Held & Malloy. But in this case, he says, "Apple's argument may have some traction and Judge Koh may well exercise this super-charged trump card in Apple's favor."

A hearing on Apple's motion is scheduled for Dec. 6. Meanwhile, Judge Koh is holding on to a $2.6 million bond Apple would have to forfeit to Samsung should it lose its last shot.

Below: A Galaxy Tab 10.1 timeline.

April 2010: Apple introduces the original iPad in San Francisco
Feb. 2011: Samsung unveils the Galaxy Tab 10.1 in Barcelona
March 2011: Apple unveils the thinner iPad 2. Samsung's CEO vows to redesign his tablet
May 2011: Samsung gives away 5,000 Galaxy Tab 10.1s to attendees at Google I/O
June 2011: Apple claims Samsung infringed D'889, a design patent signed by Steve Jobs
July 2011: Apple requests a preliminary injunction blocking the sale and importation of the Galaxy Tab 10.1
Dec. 2011: Judge Koh denies Apple's request based on Samsung's argument that their tablet could have been derived from two tablet designs that preceded the iPad, and not from D'889
May 2012: A Federal appeals court overrules Koh, writing that the two prior tablet designs were too different from the iPad to be the basis for Samsung's tablet
June 2012: Judge Koh grants Apple its preliminary injunction against Samsung
Aug. 2012: The Apple v. Samsung jury finds largely in Apple's favor, but lets the Galaxy Tab off the hook.
Sept. 2012: Samsung ask the court to lift the preliminary injunction
Sept. 2012: Judge Koh declines to grant Samsung's motion, pending a ruling from an appeals court
Sept. 2012: Apple files a Rule 50 motion asking the Judge to overrule the jury
Oct. 2012: The appeals court says Judge Koh can lift the preliminary ban if she sees fit
Oct. 2012: Judge Koh lifts the ban. The Galaxy Tab goes back on sale
Dec. 2012
: A hearing on Apple's Rule 50 motion is scheduled

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About This Author
Philip Elmer-Dewitt
Philip Elmer-DeWitt
Editor, Apple 2.0, Fortune

Philip Elmer-DeWitt has been following Apple since 1982, first for Time Magazine, and now on the Web for Fortune.com.

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