Blog

May 30, 2012

More Ways to Prove Irreparable Injury

In order to obtain an injunction prohibiting a competitor from violating your IP rights, one of the things you must prove is that his actions are causing you irreparable injury, as opposed to injury that can be remedied by paying money.  When considering possible ways in which your competitor is causing you irreparable injury, it may be worthwhile to consider two concepts proposed by Apple in the Apple v. Samsung case.

The first is a dilution argument.  Apple argued that Samsung’s use of a smartphone design in violation of Apple’s design patent eroded the distinctiveness of the iPhone design, causing Apple harm that would be impossible to quantify.

The second is that lost sales in the smartphone market would have repercussions for sales of other devices, primarily because of compatibility issues.  Once one chooses a phone that operates on the Android platform, for example, one will be more likely to purchase other Android/Samsung products rather than Apple products.

At the preliminary injunction stage, Apple did not succeed on either theory.  The Federal Circuit pointed out, however, that Apple lost not because its logic was flawed, but because there was not sufficient proof to support it.  It seems likely that Apple will be pursuing such proof with renewed vigor as the case goes forward.  Apple’s strategies of proof, whether they are based on surveys, statistics or other measures, and Apple’s success or failure, may provide IP owners with further insight regarding the effectiveness of these theories going forward.