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Monday, November 18, 2013, 11:23 am PT (02:23 pm ET)

Appellate court breathes new life into Apple's quest for Samsung Android device ban

A federal appeals court on Monday ordered that Apple's request for a permanent injunction on sales of Samsung-manufactured Android devices be reconsidered by the lower court judge who originally denied it.

Apple v Samsung

A slide from the Apple v. Samsung trial


The ruling, handed down by the United States Court of Appeals for the Federal Circuit, puts the possibility of a wide-ranging ban on sales of Samsung devices back into the hands of District Court Judge Lucy Koh, according to patent expert Florian Mueller of FOSS Patents. Mueller believes that following the ruling, "an injunction is now rather likely."

The appellate court upheld Judge Koh's objections to the request based on Apple's design patents and trade dress — i.e. look-and-feel — concerns, but took issue with the judge's interpretation of the legal hurdles facing the technical patents in question.
After the appellate decision, Apple's request for an injunction will likely be granted.
According to the appellate court, "rather than show that a patented feature is the exclusive reason for consumer demand, Apple must show some connection between the patented feature and demand for Samsung's products." Judge Koh had previously ruled that Apple was not entitled to an injunction because none of the technical patents involved could be shown to be the sole reason a consumer might choose a Samsung phone over an iPhone.

The court suggested that either evidence "that a patented feature is one of several features that cause consumers to make their purchasing decisions" or evidence that inclusion or exclusion of a particular patented feature would make the product significantly more or less desirable to consumers would satisfy the requirement.

If successful, the injunction could have significant consequences for Samsung. Rather than a ban on a specific set of devices, Apple has asked that the injunction also apply to devices that are no more than "colorably different" from those already at issue in the suit, according to Mueller.

A colorable difference is a legal term referring to a change made to a product specifically to avoid litigation in the event of an intellectual property dispute. This means that current or even future Samsung products could be caught in the injunction's net if Samsung does not either strike a licensing deal with Apple or make substantial changes to the products' engineering.