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Why Samsung's design infringement defence will fail: Reason number two - Koh’s statements exceed the necessary standard

Judge Lucy Koh’s findings of extreme similarity in the Apple v Samsung case far exceed the needed similarity for design patent infringement

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That standard says that the accused design need be at least “substantially the same” as the patented design (Gorham v White, US 1871). By using much stronger language, Koh appears to be of the mindset that the accused Samsung tablet easily meets the “substantially the same” infringement standard; so much so that the facts lead to one and only one conclusion - infringement.

While one could argue that her articulations of infringement must be placed in context and limited to the preliminary injunction stage, keep in mind that at that stage, the burdens of proof and persuasion are stacked heavily against the moving party - here, Apple. At trial, the burdens to show infringement are much lower, requiring only a showing by the preponderance of the evidence. In short, since the preliminary injunction stage – as far as hurdles to clear - matters have become easier for Apple, not more difficult.

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