Samsung fails in Apple iPhone 4S counter attack

Samsung has failed in its bid to get Apple products banned from France after a Paris court actually asked for a high standard of proof before it gave an injunction.

Le Figaro said that the main reason the court rejected the Samsung injunction was that it was “disproportionate”. Samsung now owes Apple 100,000 euros in court costs, but that probably is not that much of what Apple actually spent on its defence.

Patent expert Florian Mueller, who sat through most of the second hearing on 17 November, said that it was fairly clear the court was not going to give Samsung what it wanted.

After all, it’s difficult to say that you are being harmed when the product in question is built from products that come from your own factories.

He said that the legal standard for a preliminary injunction is reasonably high in France, and Apple’s lawyers made a case which was strong enough to dissuade the court from ordering a ban.

The battle appears to be something of a stalemate. Apple’s motion for a US-wide preliminary injunction against four Samsung products was also rejected. And an injunction in the Netherlands also failed to attract the interest of the judges.

On Friday, Samsung will try to open a new front in Milan, Italy to ban the iPhone 4S. The Italians would look at the French case in the interests of trying to keep a uniform standard of law across the EU.

Although these suits and counter-suits can make for interesting copy, they really are not the way the case is going to be settled. All the headline grabbing stories are about whether or not Apple or Samsung can get a preliminary injunction. If one side managed then it would effectively keep a product off the shelves until it was obsolete and the case would be won before any side got to hear any evidence.

Courts are starting to wake up to this problem and are starting to force both sides to deal with their cases without a preliminary injunction with the loser having to pay higher costs.

This would be ok if it was really about patents. However, Apple has the self-confessed aim of killing Android and Samsung has the goal of getting one of the most self-absorbed and self-righteous outfits in the world off its back – while cashing in on mobile devices. Both sides are using patents as their weapons.

Mueller said that you can’t win a war with “sprints” for preliminary injunctions that courts can grant after a fast-track proceeding. When they fail, they do nothing to enhance the credibility of the respective plaintiff.

Without injunctions killing off the cases then it will be some years before the matter is resolved. By then, Samsung will have released a phone and tablet which does not infringe Apple’s patents and Cupertino’s legal effort will have run out of poo to chuck at Android.