Actually, I think I'm saying the opposite. I'm saying that it's very unlikely that Apple can meet the proof requirements to get a preliminary injunction in the first place. Unless I'm misunderstanding you, you are saying that Apple can get the injunction, but that if Apple ultimately looses the case, it will have to pay large damages to HTC. Am I misunderstanding you?
Actually, the way that cases sometimes proceed, Apple can file for a temporary restraining order against HTC for them to cease and desist all activities until a judge makes a ruling on whether or not there is enough merit for a preliminary injunction to occur. Although filed at the same time, they are actually separate rulings depending on the State in which it was filed.
I currently work in the biotech/pharma sector, and this stuff happens all the time when it comes to patent expiry of products. I'm not sure how the courts will treat the tech industry as compared with the biotech/pharma industry, and my disclaimer is that my pre-law degree obviously doesn't constitute being an "expert" but to have just enough knowledge to be dangerous.
Here's a pertinent example: a generic manufacturer produces an identical or
virtually identical molecule to what has been patented originally. Most of the time this is in anticipation to patent expiry. However, many times foreign manufacturers try to sneak in these identical products on to the market before the original patents expire. The holder of the patents file a suit similar to what Apple is trying to do. They will then request a temporary restraining order which prohibits the any manufacturing or distribution of the product in question. If a TRO is granted, there is a set amount of time that the courts set to respond in order to vacate the TRO by providing additional evidence that they did not infringe on the original patent.
I tried to be as brief as possible, and this is obviously a worst-case scenario. But if there is merit to the claims, and the courts think likewise, there is the legal possibilty that this can occur - and there has been precedence.
Of course, the courts can also send it into arbitration and avoid all of this.
