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U.S. District Judge Lucy Koh recently granted a rare pre-trial injunction against the Samsung Galaxy Tab 10.1 and the Samsung Galaxy Nexus (Google's most recent Nexus flagship smartphone running pure Android Ice Cream Sandwich, soon to be upgraded to Jelly Bean).
Some would argue that this decision was incompetent on the very face of it. Judge Koh had previously signaled skepticism that these devices would threaten Apple's iPhone or iPad, but then reversed herself citing, prominently, a unified search function (web and local search surfaced in one place on the Google Search bar) Apple claims a patent on as a "threat" to Apple's market share and "downstream" revenue (apps, music, etc...).
On the one hand, no convincing argument seems to exist that a feature that is not even being marketed as a key feature of the device would be a major lure to consumers. It's nice to have, and if you're used to it you may not like to live without it, but if you've never used such a feature, you wouldn't likely notice that anything was amiss. It's a minor inconvenience, at worst, to open specific apps and use their own search function to find music files, pdf's, etc... rather than the persistent search bar, and even Apple doesn't spend money marketing the importance of the feature.
Perhaps, at the conclusion of the trial, it might be demonstrated that such a feature really is infringing and a threat to Apple, but there seems to be no good argument for a pre-trial injunction on that basis. As an Australian judge who overturned the Galaxy Tab 10.1 ban in Australia delivered by a lower court suggested in that case, the ruling seems "terribly fair" to Apple and "terribly unfair" to Samsung. The threat of losing market share is not, itself, a convincing argument to ban competing products rather than allow the free market to decide, at least until each side has had a fair day in court to argue the merits and determine the validity of the patents.
It would appear that these, and perhaps other, points of contention are not without legal merit. On the one hand, it took Google all of three days following the decision to release an update to the Galaxy Nexus to remove the contentious feature (which may prove to be temporary). A feature so painlessly removed, with no indication that its loss is driving consumers in droves to the iPhone, hardly seems to be something that could hurt Apple's "market share" or "downstream revenue".
Google Play still exists, selling apps, music, and other content that competes with Apple; the device is still being sold; and the lure of Jelly Bean (with Project Butter, Google Now, and enhanced Google Voice Search with Siri-like capabilities, among other things), combined with a discounted price, is likely to drive up sales of the Galaxy Nexus far more than the feature loss could hurt them. This alone made Judge Koh's ruling look rather absurd.
But it doesn't end there. Soon afterwards, a higher appeals Court granted Samsung a temporary reprieve from the injunction (on the Nexus, but not on the Galaxy Tab, which may infringe on additional patents the Nexus does not infringe on). While Apple has a chance to argue in favor of upholding the ban, it's clear that the appeals court was not convinced by the merits of Koh's judgment and want to form their own opinions of the merits of Apple's claims. In making this decision they are likely to seek at least some guidance in Judge Richard Posner's dismissal, with prejudice, of the Apple v. Motorola case and his not-very-favorable-to-Apple opinions of the case. Judge Koh's failure to give serious weight to Posner's esteemed legal opinion of such cases is, itself, not very flattering to her judicial competence.
Regardless of what the appeals court decides, Google will still resume sales of the Galaxy Nexus with Android 4.1 and without the controversial unified search feature. This is a sign of their confidence that their quick workaround, combined with a new OS (and thus, fundamentally, a new product), will be sufficient to get around the injunction. If Judge Koh were expert in the very matters she is adjudicating, like Richard Posner (of Apple v. Motorola fame), or William Alsup (of Oracle v. Google fame), she might have anticipated this development and recognized the futility of granting an injunction.
If Samsung removes unified search and upgrades their Galaxy Tab 10.1 it might well similarly circumvent the ban. At any rate the Galaxy Tab 10.1 is now an old product whose sales have likely long since peaked in most or all markets where it is available, and Samsung will no doubt come forward with new flagship tablets not covered by the injunction, in addition to those they already market that are not covered by the current trial. It is therefore implausible that it could be regarded as a serious threat to the iPad.
Then two rulings from the U.K. came in that make Koh's judgement all the more questionable. On the one hand, a U.K. court dismissed Apple's case against HTC involving some of the same patents in question, determining that the patents were invalid, "obvious", or simply not infringed upon. More recently, a U.K. Court dismissed a similar attempt to seek an injunction against the Galaxy Tab 10.1 itself (and other Galaxy Tablet), ruling that Apple's iPad design was not only visibly different from the Galaxy Tab with the naked eye, but also that the design features in question (rounded corners, flat screen on front, etc...) were not even original to the iPad, having been used in dozens, literally dozens, of prior products.
Far be it for me to accuse a qualified Judge of incompetence, but in this case I don't need to, her own judicial peers are doing that well enough. Invalidated patents; unoriginal designs; naked eye differences; overturned rulings; a constellation of decisions by higher courts, foreign courts, and other courts in the United States; all are converging on a unanimous conclusion, for which it appears only Judge Koh differs in her opinion: that Apple's patents are at best either too vague or obvious to be applicable or too insignificant for their infringement to damage them in the market, and at worst are entirely without merit (bogus, in the laymen's tongue).
Will of these things persuade Judge Koh to alter her pre-trial ruling (which is not a ruling that Samsung infringed, since such a ruling could only occur after each side has had their day in trial court)? Not likely, not unless the higher courts overrule her; she's already swung wildly from one opinion to its opposite, to do so again would almost certainly call any ruling she might make into immediate doubt on appeal.
What these things do achieve, however, is to show what a mockery the patent system in the United States has become, and how unqualified many judges, even otherwise qualified, might be to overhear these sorts of cases. If these cases were clear cut matters, surely no judge would ever be so inconsistent in their handling of the matter as Judge Koh has been to date.
Perhaps the self-inflicted humiliation of a judge may, sadly, be the prescription necessary to bring some sanity back to the market and help put an end to the patent wars once and for all. That might be too optimistic, and no one wants to see a judge thoroughly exposed on all counts as having made a poor decision to achieve this goal, but that may nonetheless be the end result of this.
In the meantime, some Apple fans are making themselves look even more foolish by defending a practice that implicitly admits that their favorite brand cannot win on the free market except by blocking competitors. Which, frankly, is on par with rooting for the home team to win by banning the opposing team from taking the field. Consumers win through competition; Apple wins if they convince consumers to buy their products; no one but Apple's lawyers win through patent litigation.
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