All material subject to strictly enforced copyright laws. © 2022 Managing IP is part of the Euromoney Institutional Investor PLC group.

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

Return to previous page

apple-rainbow-logo.jpg

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.

more from across site and ros bottom lb

More from across our site

ITC counsel explain why companies will continue to bring trade secret complaints to the venue and talk about how to tackle challenges
Google and Sonos patent war continues; CNIPA finishes first administrative patent trials; Oppo halts German sales after Nokia wins; Chugai settles Fresenius suit; Taylor Swift claims she never heard Playas Gon’ Play; AI can’t be inventor, says Federal Circuit
Brands and retailers should educate their marketing departments and get help from their sales teams so private label products don’t become a major problem
The UK government wants to stop local tech going to China, but tech transfer offices often have few options
Hubertus Schacht of the Munich Regional Court shares his thoughts on German SEP trends and their influence on the UPC
Trademark counsel applaud the EUIPO’s new filing system but reveal it has come with teething issues
The executive vice president of partnerships and acquisitions at the NPE explains how his company’s deal with Intel came to be
South Korean lawyers welcome the trademark guidelines but say the appellate board, courts, and other IP offices may not necessarily agree with the KIPO
Lawyers for Craig Wright will seek approval for expert evidence to help the England and Wales High Court understand how autism affects his character
IP counsel say rude judges can dent their confidence but that the effect on clients should not be underestimated
We use cookies to provide a personalized site experience.
By continuing to use & browse the site you agree to our Privacy Policy.
I agree