Apple Will Probably Lose German Motorola Mobility Xoom Case

Apple Inc. will probably lose its bid for a sales ban on Motorola Mobility Holdings Inc.’s Xoom tablet computer in Germany, a Dusseldorf court said.

The German court that banned Samsung Electronics Co.’s Galaxy 10.1 tablet sales last year is unlikely to grant Apple the same victory against Motorola Mobility’s device, Presiding Judge Johanna Brueckner-Hofmann said at a Dusseldorf hearing. The assessment is preliminary and may change after today’s arguments are reviewed. A ruling is scheduled for July 17.

“We don’t think someone sits in a coffee house using the Xoom and hopes other people will think he owns an iPad,” Brueckner-Hofmann said.

Apple has been fighting tablet competitors in courts across the globe for about a year. While the iPad maker scored a victory in September with the German Samsung Galaxy Tablet 10.1 ban, a U.S. federal appeals court yesterday denied the same request in California. Later today Apple will ask a Dusseldorf appeals court to overturn a ruling denying a ban on Samsung’s Galaxy Tablet 10.1N, introduced to get around the ban deeming the earlier model too similar to the iPad.

While Apple can invoke protection for the distinctive design of the iPad, Motorola Mobility’s Xoom seems sufficiently distinct not to infringe, Brueckner-Hofmann said. Under German competition law, developers aren’t prohibited from making similar products as long as people can tell the difference, she said.

‘Useless Protection’

The court’s view on what constitutes an illicit copy is too narrow, lawyers for Cupertino, California-based Apple argued today in the case’s second hearing.

“If you are going to rule this way, then only identical copies can be held illegal,” said Henning Hartwig, an Apple lawyer. “If companies cannot stop competitors at an early stage of illicit copying, then such legal protection is useless.”

Google Inc., based in Mountain View, California, acquired Motorola Mobility last month.

The court will probably also reject a counterclaim filed by Motorola Mobility to invalidate Apple’s European Union design right protecting the form of the iPad, Brueckner-Hofmann said.

Today’s case is: LG Duesseldorf, 14c O 140/11.

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