Apple 2.0

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Apple v. Samsung, Round 2: Death by narrowing?

March 9, 2013: 11:55 AM ET

Apple will get its second day in court, but must narrow its claims to Samsung's benefit

The Strangulation of Godelieve

The Strangulation of Godelina

FORTUNE -- "I don't know if we need two cases on this," Judge Lucy Koh told attorneys for Apple (AAPL) and Samsung last month. She was referring to two suits Apple filed against Samsung in her U.S. District Court alleging infringement of two sets of patents by two sets of Samsung devices.

Apple won the first case, although it has yet to see a penny of the $1.05 billion in damages the jury awarded it. And because Judge Koh denied the injunctive relief Apple sought, Samsung is still free to sell all the devices that were found to infringe Apple's patents and designs.

What Koh was proposing last month was to freeze the second case -- filed in February 2012 and not scheduled to go to trial until March 2014 (repeat, March 2014) -- until Samsung had exhausted its appeals from the first one. (See Justice delayed is justice denied.)

Apparently she has since thought better of that plan. On Friday, she rejected Samsung's argument that such a delay would "promote judicial economy" and accepted Apple's argument, filed one week to the day before Samsung is scheduled to unveil yet another Galaxy S smartphone, that ...

"this case must proceed now in order to stop the ongoing sales -- and relentless launch -- of Samsung's latest infringing devices, which have caused, and every day continue to cause, continuing harm to Apple."

Now Apple faces a new set of hurdles. The judge gave Apple its day in court, Reuters reports, but she also gave both sides 10 days to narrow their case to 25 products and 25 infringement claims, the first of several steps by which she intends to further reduce those numbers. Given that Samsung has dozens of products on the market and Apple only a handful, this streamlining hurts Apple and, like every procedural delay, plays to Samsung's strength.

Once again, FOSS Patents' Florian Mueller puts his finger on the problem:

I understand why the judge wants to limit the number of accused products, but there's something important that the order doesn't say: how will the rule of law ever be enforced if companies have to drop claims against products they actually consider to have infringed and if they don't have reasonable access to injunctive relief that would give them enough leverage to obtain a favorable settlement? How can a legitimate innovator enforce his rights against an obstinate infringer? With all the talk about the U.S. patent system being "broken", there's hardly any attention to the fact that the U.S. patent enforcement system makes it extremely difficult for right holders to deal with parties that infringe large numbers of patents with large numbers of products.

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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

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