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Why Samsung's design infringement defence will fail: The takeaway

In view of all the odds stacked against it, there can be little question that Samsung has an uphill battle with respect to its non-infringement case on its tablets, largely due to some crucial pre-trial rulings

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Christopher Carani, McAndrews Held & Malloy

Whether dealing with utility patents or design patents, this case serves as a reminder that pre-trial rulings can often be case determinative, or at least shine some light on where the case is headed. In design patent cases, because the ultimate question boils down to the degree of similarity between the patented design and the accused design, two pieces of information that remain the same whether at the beginning or end of a case, a court’s infringement finding on motions for preliminary injunction (albeit preliminary) can have a lasting effect – even potentially providing the foundation for a directed verdict. Here, Koh has made strong pronouncements regarding Samsung’s tablet infringement; it is hard to see how she can back away from those conclusions.

Samsung’s main lifeline would be to unearth and introduce close prior art designs. But here, due to an apparent failure to abide by discovery deadlines, the court is preventing Samsung from relying upon many of its best prior art references at the trial. Thus, this case also serves as a stark reminder of the drastic consequences that can arise when a party fails to meet discovery deadlines.

Christopher Carani is a shareholder at McAndrews Held & Malloy in Chicago.

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