Apple Inc. (AAPL), after failing repeatedly to win a sales ban against Samsung Electronics Co. over smartphone patent infringement, is now trying what it describes as a more modest approach.
Apple presented its arguments today to U.S. District Judge Lucy H. Koh in San Jose, California, for a “narrowly tailored” ban on some older Samsung models after a jury in May found infringement by both companies. Koh twice rejected the iPhone-maker’s request for a U.S. sales ban in a previous patent case against the Galaxy phone-maker.
This time, Apple said it’s targeting specific infringing features in nine Samsung devices and is offering what it calls a “sunset period” to give its Suwon, South Korea-based rival a chance to design around the features before any ban is enforced, according to a court filing.
After hearing from both sides today, Koh didn’t say when she will rule.
Apple’s “efforts will surely help, though I don’t know whether they will be enough,” Michael Risch, a law professor at Villanova University, said in an e-mail.
The trials in San Jose between the world’s top two smartphone makers in 2012 and this year followed patent battles across four continents as each tries to dominate a market valued at $338.2 billion last year, according to data compiled by Bloomberg. In the second trial, Apple won $120 million of the $2.2 billion in damages it sought.
One of three patents Samsung was found to infringe in the second case allows a user to make a call by clicking on a phone number within a Web page or e-mail instead of having to dial it separately. Another enables a user to unlock the device through gestures, and a third covers a function for automatic spelling corrections.
The jury found that Apple infringed one Samsung patent covering functions related to retrieving, classifying and organizing digital images, awarding $158,000 in damages. Samsung isn’t seeking a sales ban against Apple.
“Rather than barring entire product lines from the marketplace, Apple merely proposes to stop Samsung from further use of the specific features that the jury found to infringe Apple’s three patents,” Apple said in its filing. “Having represented that it can design-around Apple’s patents completely and quickly, Samsung cannot complain that Apple’s narrowly-tailored injunction will deprive the public of a single Samsung product.”
Adam Yates, a spokesman for Samsung, and Kristin Huguet, a spokeswoman for Cupertino, California-based Apple, declined to comment on the sales ban fight.
In the first case, Koh was directed by an appeals court to reconsider her December 2012 decision rejecting Apple’s request for a sales ban. She concluded in March that Apple still hadn’t marshaled enough evidence to support its request covering more than 20 devices that were no longer on the market.
The nine devices now targeted by Apple for a sales ban include the Admire, Galaxy Nexus, Galaxy Note, Galaxy Note 2, Galaxy S2, Galaxy S2 Epic 4G Touch, Galaxy S2 Skyrocket, Galaxy S3 and Stratosphere.
Samsung argued in the current case that there’s no evidence Apple suffered “irreparable harm” from any infringement, one of the requirements the iPhone maker must meet to win a sales ban. At today’s hearing, Samsung lawyer Bill Price described Apple’s arguments that Samsung’s infringement has caused irreparable harm to the iPhone maker’s reputation for innovation a “Hail Mary.”
Samsung contends, as it has argued in the past, that Apple has failed to draw a close enough connection, or “causal nexus,” between infringement of patented features and the sales the iPhone makers claims it lost.
“Apple has provided no persuasive justification for depriving the public of product choices created by a thriving level of competition other than its claim that an injunction serves the public’s interest in protecting innovation and patent rights,” according to Samsung’s court filing.
Apple argued to Koh, as it has in its previous requests, that if a sales ban is approved, it should be extended to any other Samsung products that are “not more than colorably different” than the older devices. That would potentially expand the scope of a ban to include newer devices that use the features found to have infringed Apple’s patents.
“If the features can be clearly defined, an injunction would be ineffectual if one couldn’t stop the defendant from infringing again in new products,” Risch said. “That said, I wouldn’t call it ‘narrowly tailored.’ This is a thorny problem.”
The case is Apple Inc. v. Samsung Electronics Co. (005930), 12-cv-00630, U.S. District Court, Northern District of California (San Jose).
To contact the reporter on this story: Joel Rosenblatt in in federal court in San Jose, California, at
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