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Why Samsung's design infringement defence will fail: Reason number one - The prospect of a directed verdict looms large

Even if Samsung’s counsel successfully persuades the jury that Samsung’s tablets do not infringe the D’889 design patent, there is a distinct likelihood that Koh will negate any such jury verdict and enter a so-called directed verdict of infringement (on a motion that Apple will undoubtedly bring)

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Motions for directed verdict (also known as motions for judgment as a matter of law (JMOL) are a procedural device expressly permitted under Rule 50 of the Federal Rules of Civil Procedure. The standard for granting a motion for a directed verdict (in the 9th Circuit where Judge Koh sits) is whether the evidence permits only one reasonable conclusion, and that conclusion is contrary to the jury’s verdict. (EEOC v Go Daddy Software, Inc [9th Cir 2009]). While directed verdicts are relatively uncommon because judges are reluctant to second guess a jury, given her statements to date on infringement regarding Samsung’s Galaxy 10.1 Tab, Koh may well exercise this super-charged trump card.

The reason for this prediction is nested in Judge Koh’s Order granting Apple’s Motion for Preliminary Injunction. There, in expressing her views that Samsung’s tablets infringe, she repeatedly opined that the Samsung Galaxy 10.1 Tab is “virtually indistinguishable” from Apple’s iPad. Indeed, Koh stated at the preliminary injunction hearing that the accused Galaxy 10.1 Tab ‘‘looks almost identical” to, and “looks virtually identical” to Apple’s iPad. Further yet, in pronouncing her conclusion that the test for design patent infringement was satisfied for purposes of granting a preliminary injunction, Koh stated that “Samsung appears to have created a [tablet] design that is likely to deceive an ordinary observer, ‘inducing him to purchase one supposing it to be the other’”.

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