Apple is reportedly going after several United States-based resellers and wireless carriers who have Samsung’s Galaxy gadgets on offer, choosing to send takedown notices stemming from a recent sales ban rulings.
In a report over at his blog FOSS Patents, patent expert Florian Müeller notes that Apple’s legal sharks contacted U.S. telcos and retailers, demanding they remove the banned Galaxy Tab 10.1 tablet and Galaxy Nexus smartphone…
According to Samsung’s court filings [PDF document], letters Apple’s San Francisco law firm sent to downstream customers on June 28 and July 3 “greatly overreach, incorrectly claiming that third-party retailers are subject to the prohibitions of the preliminary injunction, which they clearly are not”.
The South Korean firm, which is embroiled in more than two dozen patent lawsuits with Apple across the globe, is adamant that third-parties “are permitted to sell their existing inventory, even without a stay”.
According to Müeller, Apple’s takedown notice requires sellers “at a minimum” to “immediately remove for sale the banned product from all physical and online venues under their direction or control”.
Apple and Samsung obviously have diametrically opposite ideas as to how to decipher Judge Lucy Koh’s order which states the injunction encompasses Samsung’s employees and agents, but also “those acting in concert with any of them”.
Apple makes use of the legal phrasing in its takedown notice, here’s an excerpt:
The court order applies not only to the named Samsung entities, but also to anyone “acting in concert” with them. Apple thus believes that the order extends to you because you may be selling, offering to sell, or importing the Galaxy Tab 10.1 tablet computer.
Apple’s lawyers then demand that the seller immediately cease to sell or stock the Galaxy products and “any product that is no more than colorably different from this specified product”.
Colorably different, that’s a laugh.
Sprint won’t like this, that much is certain.
I for one am unsure whether Apple needs to be so pushy about this ban.
Firstly, none of the U.S. carriers and resellers is a party to the Apple-Samsung litigation.
Secondly, the Apple-Samsung patent infringement trial begins July 30 so why the rush?
And thirdly, the Galaxy Tab 10.1 is twelve months old now and probably doesn’t sell like hot cakes. Though the U.S. Courts of Appeals upheld the tablet ban, Apple shouldn’t waste energies and should instead let retailers move the remaining stock as they won’t be able to replenish it for as long as the ban remains in effect anyway.
Besides, Samsung has a host of other Galaxy Tab tablets on offer in various screen sizes and price points that Apple should worry about, such as the Galaxy Tab 2 and Galaxy Tab 7.7.
Lastly, how the heck does Cupertino expect resellers to comply with the takedown now that the Courts of Appeals temporarily suspended the Galaxy Nexus smartphone ban?
And this just in, the Federal Circuit sped up proceedings for the Galaxy Nexus appeal. As a result, an unresolved injunction appeal shouldn’t keep the Nexus off shelves for the duration of the related Apple vs. Samsung federal lawsuit, due to start in about two years, as Apple hoped it would.
And Apple’s filing from today touches upon its takedown letter, arguing “it is not a legally cognizable harm to halt downstream sales of stolen, pirated, counterfeit, or infringing products”, adding “that Apple would inform others of the entry of the injunction could not have come as any surprise to Samsung given Apple’s continued efforts to enforce its intellectual property rights”.
Man, what a mind job.
What’s your read on Apple’s takedown notice?