Apple 2.0

Covering the business that Steve Jobs built

Apple's big day in court

August 10, 2013: 7:39 AM ET

Three cases in three venues, but the one in the Federal Appeals Court mattered most.

397825676668FORTUNE -- Friday was a busy day for Apple (AAPL) legal.

  • In a District Court in New York, the judge who found Apple liable for antitrust violations in the e-book price fixing case denied -- unsurprisingly, given her past rulings -- Apple's petition to suspend consideration of remedies and penalties until its appeal of her decision could be heard. But the remedies Judge Denise Cote proposed were -- surprisingly -- far less "draconian" (Apple's word) than the ones the government had requested. A separate trial for penalties -- which Apple fears could run to hundreds of millions of dollars -- has yet to be scheduled. More on that case when we get our hands on a transcript.
  • In Washington, the U.S. International Trade Commission, which was slapped down twice in the space of seven days for anti-Apple rulings, handed Apple a clear win. It upheld a preliminary finding that Samsung had violated two Apple utility patents -- a broad touchscreen patent and some audio headset recognition circuitry -- and ordered an import ban on any Samsung device that infringes them. Anyone who expects the Obama Administration to veto this ITC order because it vetoed a pro-Samsung order last Saturday doesn't understand the difference between standards-essential patents (SEPs) and patents like Apple's that are non-SEP.
  • At the Appeals Court for the Federal District, Apple's lawyers got an extremely receptive hearing from a three-judge panel considering a separate ban on Samsung products for violating a different set of Apple patents (the ones for which Samsung was supposed to pay $1.05 billion in damages). After listening to a recording of the hour-long hearing (MP3 file here), it's hard not to concur with FOSS Patent's Florian Mueller, who writes: "I'm as convinced as I could be ... that Apple will be granted a permanent injunction against Samsung over some if not all of the six patents and the trade dress a California jury¬†found infringed almost a year ago."

How much longer do we have to wait?

A decision on e-book remedies should come down in a few weeks, although the appeals process could drag on for years. Barring an (unlikely) Presidential veto, the ITC import ban takes effect in 60 days. We may not hear from the Appeals Court until 2014 -- long after the devices in question have fallen off Samsung's product lists -- although the skepticism with which the judges heard the Koreans' arguments may give them pause in future patent cases.

Meanwhile, William Lee, representing Apple at the Appeals Court, delivered a set speech that puts as concisely as I've seen it the history of Apple v. Samsung as it looks from Cupertino's point of view:

"Apple spent five years and $5 billion designing a product. It was a revolutionary product. It's hard for most of us to remember what a phone looked like in 2007, but it was revolutionary. Samsung looked at it initially and said "this is easily copied, but we don't need to because it's going to be unsuccessful." Two years later they had a summit and decided to copy it. And they spent three months -- three months -- copied it and brought it to market. And the result was ... you see what happened to the market share."

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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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