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Chris Foresman - Oct 14, 2011 6:15 pm UTC

Samsung and Apple were in federal court in California on Thursday to argue over Apple's request for a preliminary injunction barring sales of Galaxy Tab and Galaxy S devices in the US. US District Judge Lucy Koh suggested that Samsung's devices do appear to infringe on Apple's design patents, though her final decision, expected soon, has yet to be issued.

Meanwhile, Samsung's efforts to leverage standards-essential 3G patents to ban sales of Apple's newest iPhone 4S have fallen flat in The Netherlands. A Dutch court ruled that standards agreements require Samsung to negotiate licensing for the patented technology, used in 3G networking, on fair, reasonable, and non-discriminatory terms.

The whole legal morass between Apple and Samsung first began in the US in April, when Apple accused Samsung of "slavishly copying" its designs for the iPhone and iPad to make the Galaxy S smartphones and Galaxy Tab tablets. Samsung fired back with lawsuits in Europe and Asia, and the fight eventually spilled over into nine countries, including Australia, France, Germany, Italy, Japan, the Netherlands, the UK, and South Korea.

Apple has pushed for preliminary injunctions in most jurisdictions. The company won a ban against the Galaxy Tab in Germany over a registered European Community Design, analogous to design patents here in the US. A Dutch judge issued an injunction against certain Samsung smartphones over one particular Apple patent related to photo album interaction, though Samsung issued a software update to work around it. This week an Australian judge also issued an injunction against the Galaxy Tab in that country as well.

Apple requested a preliminary US injunction against Samsung in July, and Judge Koh agreed to an expedited trial schedule at Apple's request. The hearing on the matter took place Thursday, and things didn't go particularly well for Samsung. Koh declined to issue an injunction on the lone utility patent that Apple asserted for the injunction (there are more asserted for the full trial), but did note that Samsung's devices clearly violated Apple's design patents.

To illustrate her point, Koh held both devices up and asked Samsung's lead counsel, Kathleen Sullivan, if she could identify which one was an iPad and which one was a Galaxy Tab. "Not at this distance your honor," she said, approximately 10 feet from the bench.

Judge Koh said she would still have to determine whether or not Apple's design patents should be considered valid. Samsung argued that the injunction should not be granted because the patents are likely invalid. However, Koh said her final decision on the injunction will be issued "fairly promptly."

A preliminary injunction in the US, one of the top smartphone markets worldwide, would be seen as a serious setback for Samsung, especially given the other injunctions it has received so far.

At the same time, Samsung's efforts to fight back against Apple using FRAND-encumbered wireless networking patents appears to indeed be backfiring. The company filed countersuits against Apple in several countries alleging that Apple's iPhones and 3G iPads infringe on several patents Samsung holds that are essential to 3G/UMTS standards. "[A]s long as Apple does not drop mobile telecommunications functions, it would be impossible for it to sell its i-branded products without using our patents," one executive told The Korea Times.

However, that patented technology was included in 3G standards on the condition that Samsung would license those patents to anyone that wanted to use the standard on FRAND terms. Samsung allegedly tried to extract a 2.4 percent royalty from each Apple device, which Apple promptly rejected as unfair and discriminatory.

Samsung moved to have Apple's iPhones banned in the Netherlands, but a Dutch court ruled on Friday that Samsung's attempt to leverage standards-essential patents was an "abuse" of its rights. The judge ordered Samsung and Apple to continue negotiating until a agreement was made that satisfied FRAND requirements.

That ruling could help Apple avoid injunctions in similar cases, particularly in France and Italy, where Samsung is requesting similar injunctions based on the same patents.

Given the weakness that Samsung's defense has shown so far, and with its offensive strategy on shaky legal ground, Samsung may have little choice but to work things out with Apple, and likely on Apple's terms.

Listing image by Photograph by BestBoyZ.de

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