Apple’s attempt to protect its dominance in the tablet market by suing competitors for infringement of its intellectual property has spread beyond Samsung to include Motorola and a small German slate maker called JAY-tech.
Buried in Apple’s complaint against Samsung, which resulted in a preliminary injunction barring the sale of Samsung’s Galaxy Tab tablet in most of the European Union, is evidence that Apple has filed similar complaints against Motorola’s Xoom tablet and JAY-tech’s product.
The evidence is a passage in the Samsung complaint that refers to complaints against Motorola and JAY-tech, according to patent blogger and intellectual property activist Florian Mueller. “That passage says that Apple filed with the same court (district court of Düsseldorf) a complaint over the design of the Motorola Xoom,” he wrote in his Foss Patents blog.
Still undetermined is whether the complaint seeks injunctive relief against the Xoom so it, too, would have to be pulled from shelves in the European Union.
Such relief, in preliminary form, anyway, may have been shelved by Apple in its Motorola filing because the likelihood of success could be low, Mueller asserted. “[A] preliminary injunction can’t be requested in Germany if the right holder has been aware of an infringement for too long,” he wrote. “There isn’t a clear statutory limit, but German lawyers usually discourage such motions unless they are filed within one month of finding out about an infringement.”
“It’s possible to get permanent injunctions even against older products, but for preliminary ones there must be a particular sense of urgency,” he added. “It’s possible that Apple has also been aware of the Xoom for too long to file for a preliminary injunction at this stage.”
That apparently wasn’t the case with JAY-tech, where a preliminary injunction was imposed on the company, according to Mueller. He wrote that the German tablet maker “was served a preliminary injunction, and according to Apple’s representations, it was upheld by the court ‘in its entirety’ even after a hearing.”
Lawsuits between Apple and Motorola are nothing new, of course. Apple has sued Motorola over the use of multitouch technology and other mobile phone technologies. Meanwhile, Motorola has sued Apple over infringement on Motorola’s communications patents and has even tried preemptively suing Apple to prevent it from suing Motorola for potential patent infringements. In fact, according to Mueller, Apple and Motorola have 42 patents involved in legal disputes between the companies.
Those disputes, though, are being hashed out in U.S. courts, where it’s more difficult to obtain injunctive relief before a case goes to trial. In the United States, a more difficult burden is placed on a party seeking a preliminary injunction than in Europe, according to Thomas J. Fisher, a patent attorney with Oblon, Spivak, McClelland, Maier & Neustadt in Alexandria, Va.
“That’s one of the reasons that the ITC [International Trade Commission] has become a more popular forum in the United States, because the relief you get at the ITC is basically an injunction,” he explained.
Obtaining a preliminary injunction can be risky business, he added. “If you succeed in getting a preliminary injunction and then you ultimately lose the case, you can be liable for damages to the enjoined party,” he said.