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Samsung Galaxy Tab 10.1 Banned in US
The appellate court’s instructions did not cover the Samsung smartphones that Apple also charges with infringing

US District Court Judge Lucy Koh has forbidden Samsung to sell any more of its Android-based Galaxy Tab 10.1 tablets in America once retail inventories are cleared.

Judge Koh ordered the ban late Tuesday at the point of a decision issued by the Court of Appeals for the Federal Circuit in Washington, DC, where Apple went after she rejected its injunction request in December.

Unwilling to second guess the appeals court, she rejected a second injunction request from Apple on June 4.

The Court of Appeals found that when all is said and done Apple will probably win its pending infringement suit against Samsung based on a single design patent.

The trial is set to start July 30.

The appellate court's instructions did not cover the Samsung smartphones that Apple also charges with infringing, but at least one of the judges on the appellate tribunal felt strongly enough about the tablet she wanted the Court of Appeals to hand down the injunction directly, FOSS Patents says. Ultimately the ruling was left to Koh.

In her order Tuesday Koh wrote that "Although Samsung has a right to compete, it does not have a right to compete unfairly, by flooding the market with infringing products."

"Although Samsung will necessarily be harmed," she said, "by being forced to withdraw its product from the market before the merits can be determined after a full trial, the harm faced by Apple absent an injunction on the Galaxy Tab 10.1 is greater."

Samsung immediately appealed.

It said in a statement that "Apple sought a preliminary injunction of Samsung's Galaxy Tab 10.1, based on a single design patent that addressed just one aspect of the product's overall design. Should Apple continue to make legal claims based on such a generic design patent, design innovation and progress in the industry could be restricted."

Koh has previously found the Galaxy Tab and the iPad and iPad 2 are "virtually indistinguishable."

Apple has to post a $2.6 million bond to cover damages to Samsung in case it loses at trial. Once it does that the injunction goes into effect.

If Samsung loses at trial FOSS Patents says "Design patent infringement can be very costly."

The injunction only applies to the year-old Galaxy Tab 10.1, which has been the iPad's biggest rival, and any other product that is "no more than colorably different" and "embodies any design" that infringes the Apple patent. That excludes other Galaxy models that come in different sizes.

Samsung put out a Galaxy Tab 10.1 II last month.

Samsung's smartphones are more important to the company from a revenue point-of-view. Bloomberg quotes a financial analyst in Seoul who figures Samsung may only sell about 300,000 of the tablets a quarter in the states.

In its statement Tuesday Samsung said the current injunction won't have a significant impact on its business. It will be whistling a different tune if Koh orders its phones enjoined like Apple wants. Apple is using four software patents in that motion targeting the Galaxy Nexus but a decision would apply to other devices even beyond Samsung.

Apple's victory in San Francisco is offset by a decision in Chicago denying it an injunction against Motorola Mobility Android-based smartphones.

About Maureen O'Gara
Maureen O'Gara the most read technology reporter for the past 20 years, is the Cloud Computing and Virtualization News Desk editor of SYS-CON Media. She is the publisher of famous "Billygrams" and the editor-in-chief of "Client/Server News" for more than a decade. One of the most respected technology reporters in the business, Maureen can be reached by email at maureen(at)sys-con.com or paperboy(at)g2news.com, and by phone at 516 759-7025. Twitter: @MaureenOGara

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