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The latest installment in the long-running Apple v. Samsung patent case (well, one of them anyway) has each party both winning and losing. This is the case where Apple was awarded over $1 billion in damages against Samsung. The same one where Samsung said that there was something hooky about the foreman of the jury.

Apple request for US ban on Samsung smartphone sales rejected by judge.

That’s the really big decision. As I’ve said many a time the current battle isn’t about who gets to sell this generation of hardware. It’s much more about who gets to make their ecosystem the default option for the next few generations: iOS or Android? A ban on the major Android manufacturer selling in the US would have greatly helped Apple. But they didn’t get it:

A permanent sales ban on a number of Samsung devices isn’t happening, says Judge Lucy Koh, shooting down an injunction request filed by Apple. In a filing denying the motion, Koh admits that Samsung may have cut into Apple’s customer base, but says “there is no suggestion that Samsung will wipe out Apple’s customer base or force Apple out of the business of making smartphones. The present case involves lost sales â€" not a lost ability to be a viable market participant.”

Or in the language the rest of us speak: your business might be damaged by Samsung’s violations, which means that damages are appropriate. But your business isn’t going to be ruined by the violations, so ruining Samsung’s business is not an appropriate response.

In her order late on Monday, Koh cited that appellate ruling as binding legal precedent, ruling that Apple had not presented enough evidence that its patented features drove consumer demand for the entire iPhone.

“The phones at issue in this case contain a broad range of features, only a small fraction of which are covered by Apple’s patents,” Koh wrote.

“Though Apple does have some interest in retaining certain features as exclusive to Apple,” she continued, “it does not follow that entire products must be forever banned from the market because they incorporate, among their myriad features, a few narrow protected functions.”

And that’s the other problem for Apple. Sure, Samsung has violated certain Apple patents. But are they the crucial ones that make the decision between the two models for the consumer? To get the ban on sales (generally regarded as an extreme move) such things as bouncing scroll would have to be the must have or don’t buy features. And there’s absolutely no evidence of that at all.

If the patents were more fundamental, something like, well, does it work as a phone? Can I get the internet on it? Then those might have been basic enough for Apple to gain its expressed desire.

Alternatively, Apple could have shown that the patents under discussion were that basic: which they haven’t. So, no ban.

On the Samsung side the loss was that they don’t get a retrial over the jury foreman issues:

the second order denied Samsung a new trial on the grounds of alleged jury misconduct (the court won’t even hold an evidentiary hearing on that issue, which most observers considered a long shot).

Quite: that was always a weak argument. It is indeed the lawyers’ duty to try everything but they did have an opportunity to interview and question that juror (during voir dire) and so the issue is moot. Yo don’t get to do that questioning and allow the juror and then decide you don’t like the juror after the verdict.