Tuesday, October 13, 2015

European Patent Office intentionally treats patent applicants and staff unfairly: leaked documents

While I'm currently taking a break from patent (not copyright) blogging, there's a few EPO-related issues I quickly wanted to draw attention to (and would comment on in more detail if I had time).

Dr. Roy Schestowitz, who has been authoring the TechRights blog for nine years, obtained (after I encouraged him to do so) a copy of an internal document of the European Patent Office that stands as incontrovertible evidence of the EPO's institutionalized unfairness. Companies filing large numbers of patent applications receive preferential treatment including highly questionable package deals along the lines of "drop these 500 patent applications and in exchange we'll grant 1,000 other weak applications of yours in short order".

Article 7 of the Universal Declaration of Human Rights states the following: "All are equal before the law and are entitled without any discrimination to equal protection of the law." But the EPO doesn't believe in human rights and is, as Dr. Schestowitz accurately notes, run like a private, profit-maximizing enterprise as opposed to an honorable institution properly applying the law. I've previously likened the EPO to FIFA, but with the latest evidence I almost feel like I have to ask FIFA for an apology for this comparison, given that different standards must be applied to a sports body vs. a government institution in charge of a key area of commercial law. FIFA doesn't rig soccer matches, at least not the extent the EPO's leadership compromises the patent granting process.

The general press should take much more of an interest in the EPO's corruption. Yesterday I was pleased to see that Heise online, Germany's leading IT news site, has written about this after reading the TechRights story.

I also wanted to point to some new developments in connection with the EPO leadership's repressive actions against staff union leaders. The following letter by SUEPO's (Staff Union of the European Patent Office) Munich chair, Elizabeth Hardon, to the chairman of the Administrative Council (the politburo) of the European Patent Organization speaks for itself:

15-10-08 Letter Re. EPO Elizabeth Hardon by Florian Mueller

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Wednesday, October 7, 2015

May 9, 2016 may (or may not) be the Oracle v. Google Android-Java copyright retrial date

On Tuesday afternoon local time, Judge William H. Alsup of the United States District Court for the Northern District of California issued a third case management order in the remand proceedings of the Oracle v. Google Android-Java copyright litigation. The most important part relates to the retrial date.

The final pretrial conference is firmly set for April 27, 2016. However, for the retrial itself, "[t]here is no date in 2016 that the Court could set for Oracle v. Google as a 'firm' trial date." The retrial "is [merely] tentatively set for May 9, subject to the possibility that two other cases with priority also set on that day will settle or plead out." The order then explains that "the Court tentatively expects to bring the Oracle v. Google case to trial as soon as the trials previously set for May 9 are completed or vacated due to settlements or pleas."

In practical terms, this means:

  • May 9 is the earliest possibility.

  • It will only be May 9 if parties to other cases do things they can't be forced to do (settle, withdraw) or if the other cases are resolved ahead of trial (summary judgment).

  • If the May 9 trials don't take too long, Oracle v. Google may start as soon as those other trials are over.

  • Theoretically, despite the court's "tentative" plans, this could slip into 2017 for no fault of Oracle or Google.

Another potential uncertainty here (not mentioned in the order) is that there could be delays due to issues with expert reports or as a result of interlocutory appeals or mandamus petitions. There were some expert report do-overs in the original proceedings; there was a mandamus petition by Google (which failed, but it took time) regarding one piece of evidence. I do see the potential for some of that on remand as well. I predict a huge fight especially over jury instructions and how to interpret the Federal Circuit's guidance regarding "fair use." I also see the potential for a pretrial involvement of the appeals court in connection with the court-appointed expert (though I still trust that a judge who even express concern in 2012 about the potential influence of bloggers on court decisions sets a rather high standard for court-appointed experts, a standard that Dr. Kearl cannot possibly meet anymore).

All things considered, I'll mark May 9 on my calendar but with lots of question marks (which, come May, may or may not go away).

The only smartphone patent dispute Google still has to worry about is this case, which is, by now, a copyright-only case. Apple's "thermonuclear war" and Microsoft's five-year effort to force Motorola into an Android patent license have ended in second-class settlements (withdrawals without license agreements). The only two resolutions I can imagine for Oracle v. Google are a license-based partnership between the parties or, maybe, a strategic acquisition of Java by Google (I've seen various tweets in recent weeks and months that suggested this, and while Oracle is more of a buyer than seller of companies, Google has almost three times Oracle's market cap).

The fact that a copyright case has eclipsed Google's patent cases is not because copyright is generally stronger than patents. It's because this case here is about literal copying (a conceded fact in this case), not more or less flimsy allegations of copying as in those patent cases.

Finally, a recommendation for those interested in "fair use" cases: an article by IP litigator Mike Keyes on the "Dancing Baby" case and why it has no bearing on Oracle v. Google.

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Thursday, October 1, 2015

Patent stalemate ends in second-class settlement: Google strategically prevails over Microsoft

On the eve of the fifth anniversary of the first Microsoft v. Motorola lawsuit, Google and Microsoft issued the following joint statement to the press:

"Microsoft and Google are pleased to announce an agreement on patent issues. As part of the agreement, the companies will dismiss all pending patent infringement litigation between them, including cases related to Motorola Mobility. Separately, Google and Microsoft have agreed to collaborate on certain patent matters and anticipate working together in other areas in the future to benefit our customers."

There's nothing in it that would suggest Microsoft made any headway in five years of suing. This one is structurally reminiscent of the second-class settlement Google reached with Apple last year from a position of mutual weakness: neither do Android's enemies hold patents that would represent a serious threat to the world's most widely-distributed mobile operating system nor are the patents for which Google bought Motorola powerful enough to force Apple or Microsoft into a cross-license covering the entire Android ecosystem.

In boxing, the champion retains the title if a bout ends in a draw. Considering the facts surrounding this litigation, there can be no doubt that this is great for Google and disappointing for Microsoft (though things could always be worse). The biggest winners in this are the Quinn Emanuel lawyers who represented Google/Motorola against Microsoft in the U.S. (led by Charles Verhoeven) and Germany (Dr. Marcus Grosch).

Android is and remains the new Windows:

Infographic: Is Android Becoming the New Windows? | Statista

       You will find more statistics at Statista

In 2010, Google's market capitalization was $180 billion, while Microsoft's was approximately $250 billion. Now, Microsoft's market cap is $350 billion (an increase by 40%, mostly the "Nadella effect"), while Google's (now "Alphabet's") market cap is almost $420 billion (an increase by 130%).

Microsoft has the industry's best IP licensing team and is generating billions of dollars per year in Android patent licenses. The patent stalemate between Microsoft and Google won't entitle any of Google's partners to a refund. But Google always discouraged Android OEMs from paying Microsoft. Google told them: defend yourselves, we'll help you. If some companies were just too small to pick a fight with Microsoft, they don't matter to Google anyway. If some of the bigger ones backed down, maybe in part because they had longstanding partnerships with Microsoft, they can't blame Google. If it had been up to Google, everyone would have "done a Motorola."

I absolutely agree with analysts who view this agreement between Microsoft and Google as a sign of Microsoft's attitude toward competitors being fundamentally different under its new CEO than under Steve Ballmer and, previously, Bill Gates. Microsoft is now happy to operate cloud services that power Apple's iCloud as well as numerous iOS and Android apps (including some of the most significant ones), and Azure is great based on everything I hear from competent sources. Microsoft now also contents itself with being a third-party ISV (independent software vendor) for Android and iOS. And, who knows, maybe Microsoft will be increasingly patent reform-friendly, now that its senior management has experienced in the fight with Google that patents are not the answer.

Microsoft's most noteworthy achievement in the patent dispute with Google was that it gave meaning to FRAND (contradicting positions it had still communicated to the FTC almost a year after the first Motorola lawsuit). That's a victory for reasonableness, but not a strategic win for Microsoft over Google: by now, Google is just as interested in low SEP royalties as Microsoft. There was a time when Motorola and its acquirer Google thought they needed to get leverage from SEPs, but after half a decade it's clear that Google would have had a sufficiently strong defense even without a SEP offense.

Five years ago to the day, when Microsoft sued Motorola after Apple had sued HTC and Oracle had sued Google, I thought that the smartphone patent wars were going to last 12-18, if not 24 months, and through this blog I strategically occupied the niche of smartphone patent litigation coverage. By now, I'm no longer really interested in smartphone patents. A year ago I published statistics that show the negligible impact of those cases.

The only smartphone patent case that still matters is actually, by now, a copyright case: Oracle v. Google. I'll keep an eye on that one until the end because it's about an issue that I as a software developer care about a great deal. And after a lot of idiotic, unjustified bashing that I took in a 2012 shitstorm following an erroneous court decision that the Federal Circuit overruled and the Supreme Court declined to reinstate, that case has also become a personal matter for me. It's the only context right now in which I fundamentally disagree with Google.

I'll do only a very limited amount of patent litigation blogging this quarter, and won't do any of that next year, no matter who sues whom or who settles with whom. Again, Oracle v. Google is a copyright case by now and a different story.

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Tuesday, September 29, 2015

Judge sends Apple, Samsung to mediation with Nov. 15 deadline -- #1 problem: Apple's self-righteousness

On Monday, Judge Lucy Koh of the United States District Court for the Northern District of California received a joint ADR (Alternative Dispute Resolution) statement from Apple and Samsung, which is not publicly accessible. Further to that statement, Judge Koh referred the parties to mediation before Magistrate Judge Spero, which was the common ground of the positions they stated on ADR earlier this month. As per the parties' suggestion, that settlement effort will have a November 15 deadline.

More than a year after Apple and Samsung dropped all lawsuits against each other in jurisdictions outside the U.S. (i.e., numerous neutral jurisdictions as well as Samsung's country, Korea), it's time they also put aside the U.S. part of their dispute. I've always said that Apple should get something, but the longer this dispute has taken, the clearer it has become that Apple's leverage is limited, and let's not forget that Apple at some point needs a license, on FRAND terms obviously, to Samsung's standard-essential patents. Apple's iPhone patents are not nearly as great as its products, and even though Apple also has far better lawyers than patents, Apple's litigation would have gone nowhere if not for certain peculiarities of the U.S. patent system such as jury trials, which are statistically biased in favor of domestic companies suing foreign rivals (see Xenophobia in American Courts).

There isn't really much to gain for Apple. At this stage, if Apple wanted to really make a strong statement about its iPhone-related intellectual property, it would have to sue major Chinese companies such as Huawei, ZTE, and Xiaomi. But as far as I know, while Apple is paying standard-essential patent royalties to Chinese patent holders, no Chinese company is paying Apple anything for building iPhone-like Android-based smartphones.

A settlement on undisclosed terms, no matter what speculation it might trigger, would be a face-saving exit strategy for both Apple and Samsung, especially since they've had a commercial relationship for a long time and could somehow mix the patent settlement with some new commercial agreement (a structure that I've seen in connection with a couple of Microsoft patent cases).

As I've already said this month, a settlement at this stage would make Apple look stronger than it could have expected at any time since the spring 2014 trial. While I could see reasons for Samsung and its allies (such as Google) to push for Supreme Court clarification of one or more key issues, there's no reason why Samsung couldn't or shouldn't simply do a deal with Apple that makes business sense.

My primary concern about the prospects for a settlement at this stage is that, in my observation, Apple has become self-righteous beyond imagination and potentially even a bit too emotional about this matter.

Any reasonable person in the civilized world has a simple definition for theft: you take something you don't rightfully own. And if you take money by collecting a damages award over half a dozen patents, even though the most valuable software patent of them is a zombie patent by now and a key design patent has also been deemed invalid (for lack of inventiveness) by the very patent office that once granted it, then you are not a thief in a legal sense because you merely take advantage of a broken patent system, but in moral terms, you still take what's not rightfully yours.

I've been thinking a lot in recent weeks about why Apple, a company normally much more concerned about its reputation, is doing this. In a recent court filing, I found what might be a clue in this regard. Apple's lawyers mentioned that after last year's trial (in the second California Apple v. Samsung case), Samsung's lead counsel, John B. Quinn of Quinn Emanuel, said in public that after years of litigation, Apple still hadn't collected a penny.

My unsolicited advice to Apple would be: don't compromise your moral standards just because of what Samsung's trial counsel told the press.

I've tried to put myself in the shoes of Apple's lawyers. Such major trials are an enormous logistical effort for everyone involved. The lawyers get little sleep, yet have to concentrate on each and every detail and fight very hard day and night. Apple's lawyers did that in 2012 and got a billion-dollar award. They did it again for a 2013 limited damages retrial. And then again in early 2014 for that trial in the second case, which ended with a major disappointment for them because even a jury picked from Apple's backyard only awarded a small fraction of what Apple had demanded. After all this effort, it hurts to have nothing to show yet, and then Mr. Quinn put his fingers into that wound. It must have hurt.

No matter what Apple's lawyers may or may not do now, Steve Jobs's "thermonuclear war" on Android will always be remembered as an abject failure. Mr. Jobs simply overestimated the strength of his company's patents, as did so many other people.

The question is now: how can Apple at least lose like a winner? By trying to win like a loser (on an ethically problematic basis), it only makes things worse.

Apple appears very self-righteous. Only because Apple has believed all along that Samsung owes huge payments, Apple's patents aren't any more valid. At last year's trial, Apple's lead counsel argued that Apple just couldn't (for logistical reasons) assert 50 patents against Samsung in one case, it picked only a few. But Apple obviously picked the ones that its lawyers thought were going to be the strongest ones, and in the aggregate of two California cases and an ITC complaint, Apple has already asserted dozens of patents against Samsung, though not all of them until the bitter end. Maybe some people at Apple believe that since certain inefficiencies of the law (such as limits on how many patents a U.S. judge will let you take to a jury trial) can also affect a right holder, they can now seek to capitalize on a loophole for the monetization of zombie patents.

In Europe, it appears that not even one of all the patent claims Apple asserted against Android will stand. Slide-to-unlock, for example, has been deemed invalid by 15 different judges in three countries. Apple should realize that its complete failure in neutral jurisdictions is a major credibility and legitimacy issue. Taking advantage of structural flaws of the U.S. patent system, and protectionist tendencies of juries and possibly even certain "fanboy" judges, is not the answer.

If not for the emotional self-righteousness Apple has recently displayed, I would be very optimistic about a settlement.

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Friday, September 18, 2015

Judge enters partial final judgment for Apple against Samsung -- Samsung said it would appeal

For the factual background of this Apple v. Samsung matter, I would like to refer you to my previous post on this one and just sum it up like this: two key Apple patents underlying the 2012 and 2013 jury verdict against Samsung have serious validity issues, one of them even at a rather advanced stage of proceeding, but the Federal Circuit had not held those patents invalid and Apple, on that basis, requested entry of partial final judgment.

Judge Lucy Koh of the United States District Court for the Northern District of California has just denied Samsung's motion for judgment as a matter of law on the '915 patent as well as Samsung's alternative request for a stay, and has entered the following partial final judgment for Apple to the tune of $548 million (this post continues below the document with a quote from a previous Samsung filing announcing an immediate appeal):

15-09-18 Partial Final Judgment Over 548 Million Dollars by Florian Mueller

In preparation of a hearing held a few hours ago, Judge Koh had asked Samsung whether it would, in the event of partial final judgment for Apple, use a bond posted back in 2012 to make a payment. Samsung replied as follows (in a supplemental case management statement):

"Samsung objects to the entry of partial final judgment and, were such judgment entered, would appeal to the U.S. Court of Appeals for the Federal Circuit pursuant to 28 U.S.C. § 1295(a)(1), arguing, among other things, that the judgment is not authorized by Fed. R. Civ. P. 54(b). See, e.g., Unitherm Food Sys. v. Swift-Eckrich [...]. Because Samsung's existing supersedeas bond [...] remains in effect, during Samsung’s appeal any partial final judgment would remain secured by the bond or any modified bond that the Court may approve, and execution of the judgment therefore would be automatically stayed pursuant to Fed. R. Civ. P. 62(d). If any partial final judgment were affirmed on appeal, Samsung would satisfy that judgment when it becomes executable and then move to release the bond."

It will be interesting to see how the Federal Circuit now addresses the issue that the United States Patent and Trademark Office has changed its mind and believes it shouldn't have granted Apple the '915 patent in the first place. The D'677 iPhone design patent is also deemed invalid on the current basis, at an earlier stage of proceeding.

It's disappointing that Apple is trying to collect money (partly) over patents it doesn't even rightfully hold based on the USPTO's current analysis. Over all these years Apple struggled to achieve a breakthrough in its patent spats with three major Android device makers (HTC, Motorola, Samsung), but recently U.S. courts, especially the Federal Circuit, have handed down some controversial decisions that may give Apple some leverage in forthcoming settlement talks. However, that leverage has its limits: it's not like Apple could prevent anyone from selling highly functional Android-based multitoch smartphones in the U.S., and it remains to be seen what comes out of those recent decisions in the months ahead. Apple is closer than ever to actually receiving a payment, but it's not there yet.

I've said repeatedly that this thing should finally be settled, but I have no idea whether those rulings make it more likely to work out (because a settlement at this stage would make Apple look stronger than it could have expected at any time since the spring 2014 trial) or less likely to happen (because Samsung and other industry players may see a pressing need to get clarification on some key legal issues, such as how to deal with patents deemed invalid by the patent office or on the value of design patents).

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Judge denies motion to preclude Oracle from arguing Google's Java copyright infringement was willful

Judge William H. Alsup of the United States District Court for the Northern District of California has just denied a Google motion to preclude Oracle from arguing at next year's retrial that the search giant's infringement of Java copyrights (through incorporation of the declarations of 37 Java API packages into Android) was willful. In its opposition to Google's motion, Oracle had pointed to a particularly "expressive" piece of evidence: a Google-internal email according to which one of its key Android developers found Android's original Java libraries "half-ass at best" and identified a need for "another half of an ass."

The federal judge sees two legal reasons for which Google's motion couldn't succeed. Willfulness would have a bearing on the deduction of certain costs from profits that would have to be disgorged. Should Oracle, however, elect to seek statutory damages instead of, for example, a disgorgement of profits, then up to $150,000 per work infringed, as opposed to the standard maximum of $30,000, would be available. No matter how unlikely Google (and presumably many observers) consider a later Oracle choice to seek statutory damages, Judge Alsup interprets the law as preventing his court "from compelling Oracle to elect its measure of damages early on."

But the outcome isn't all bad for Google. The good among the bad from Google's perspective is that Judge Alsup has simultaneously decided that the trial would be bifurcated. The jury would firstly rule on Google's "fair use" defense without being briefed on Oracle's damages theories; then, if Oracle prevails (which I'm sure it will), damages and willfulness evidence will be presented in the second phase of the trial.

After a "fair use" finding, the next factual issue for the jury to decide will be willfulness. Thereafter, depending on the outcome, cetain damages theories may or may not be presented.

This approach means Google avoids its worst-case scenario, which would have been for the jury to hear about evidence such as the second "half of an ass" before making a decision on the "fair use" defense. I don't know how Google and its lawyers feel about this, but I wouldn't be surprised if they were actually rather pleased. They might have known all along that it was (at best) a long shot to try to avoid any willfulness discussion, so this here may be the best outcome they could have realistically expected.

For now, it appears that Google will be able to present some evidence and argument relating to its equitable defenses. Oracle might use some of the evidence that also has a bearing on willfulness to counter Google's claims that it relied on certain public statements by Sun. If not, Oracle would be substantially disadvantaged as a result of Judge Alsup's pretrial decisions.

So I expect to see some fights further in the process over which pieces of evidence that relate to willfulness are admissible as evidence in the first trial phase anyway (because of some other kind of probative value).

It's worth noting that Judge Alsup was much less concerned back in 2012 about a jury hearing more evidence than necessary. At the time he decided to put Google's defenses, especially "fair use," before the jury even though he ultimately held the infringed declaring API code non-copyrightable (which, as everyone knows, the Federal Circuit reversed and the Supreme Court declined to even take a look at). If he had made his finding before the jury trial, and if it had been upheld (in a parallel universe), the first jury would never even have had to think about "fair use." But this remand is different in some respects, including this one.

A key issue to decide will be whether the court-appointed expert from the first trial, Dr. Kearl, can still testify even though he has in the meantime done work for Samsung, a Google Android partner. I would be extremely surprised if a judge who showed concern in 2012 about the court, including appeals courts, being potentially influenced by bloggers now had no problem with a court-appointed expert--who undoubtedly and massively influences the court and the jury--being aligned with one "camp." I can't imagine that we'll see Dr. Kearl appear at next year's trial, but a formal decision has yet to be made.

Here's the order:

15-09-18 Order Denying Google Motion to Preclude by Florian Mueller

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Thursday, September 17, 2015

Chief judge disagrees with appellate ruling that would pave the way for Apple injunction against Samsung

At a hearing in March, Apple faced a skeptical court for its fourth or so attempt to obtain a U.S. patent injunction against Samsung. Today, the United States Court of Appeals for the Federal Circuit issued a ruling that vacates Judge Koh's August 2014 denial of an injunction in the second California litigation between Apple and Samsung and remands for further proceedings. However, Chief Judge Sharon Prost strongly disagrees with her two colleagues on the panel, Circuit Judges Moore and (notoriously Apple-admiring and generally patentee-friendly) Reyna, who outvoted her.

Last year, I absolutely liked and agreed with Judge Prost's dissent (on the reasons, not the outcome) in the "Posner" appeal with respect to injunctions over FRAND-pledged standard-essential patents. Today I am once again more convinced by what she writes than by the majority opinion. Last year, her position was favorable to Apple. Today, what she writes supports Judge Koh and, by extension in this particular context, Samsung.

Presumably Samsung will view the Chief Judge's loud and clear dissent as an invitation to request a full-court review.

Very remarkably, Chief Judge Prost's dissent begins with the following five words:

"This is not a close case."

After reading that first sentence on page 41 of the PDF document, it was clear to me that this was one of the most fundamental disagreements ever of a panel member with the majority opinion. The next two sentences then put the (in)significance of the scope of the asserted patent claims masterfully into perspective:

"One of the Apple patents at issue covers a spelling correction feature not used by Apple. Two other patents relate to minor features (two out of many thousands) in Apple's iPhone—linking a phone number in a document to a dialer, and unlocking the screen."

A feature "not used by Apple" plus two "minor" features. That contrasts completely with the majority opinion's unbelievable attempt to blow the importance of the slide-to-unlock idea--something that 15 (fifteen!) European patent judges in three countries have unanimously found to be less than patentworthy--out of proportion:

"Although seemingly straightforward, Apple considered this feature so core to the Apple iPhone user experience that it opened the first iPhone ad with imagery illustrating the operation of this 'slide to unlock' feature."

It's a very simple, thus intuitive feature. That's why it came in handy when Apple was trying to explain to consumers what the iPhone user interface was about. That still doesn't make it a technological achievement. Chief Judge Prost and 15 European judges, eight of them serving on courts that have more power in their countries than the Federal Circuit has in the U.S. (where it is often overruled by the Supreme Court), got this right, and two circuit judges are either Apple fanboys or patent radicals or both.

In one respect, Apple could not even convince the majority: Apple argued that an injunction request relating to features as opposed to products should face a lower standard. Samsung's counsel on appeal said Samsung makes products, not features. Chief Judge Prost says: "The majority correctly rejects this theory and the case should have ended there." And then she asks: "So why doesn't it?" The answer:

"Because the majority finds legal error by the district court where none exists. Then, under the guise of the purported 'legal error,' the majority reverses without deference the district court’s rejection of Apple's survey evidence, never mentioning that the survey was rejected by the district court because Samsung's serious challenges to its techniques and conclusions were unrebutted by Apple. The majority further relies on 'evidence,' found nowhere in the record, that carriers or users preferred having the patented features on Samsung's phones. It also concludes—contrary to our case law—that Apple's alleged evidence of 'copying' is sufficient to show nexus to Apple’s alleged lost-sales. Because the majority here reaches a result that comports with neither existing law nor the record in this case, I must respectfully dissent."

It's almost an understatement to say that the Federal Circuit majority shows no "deference" to the district court's factual holdings. What's happened here over these past few years is an insanity because whatever Judge Koh did was overruled. Judge Koh tried hard to apply the Federal Circuit's latest ruling when issuing her last one, and time and time again, she was reversed.

Today's ruling looks to me like some judges realized the standard they had set in the past (for good reasons, actually) was an insurmountable hurdle for Apple, so they centered today's opinion around the suggestion that "some connection" between an infringement and irreparable harm was sufficient and the made-up claim that Judge Koh had required Apple to "prove that the infringement was the sole cause of the lost downstream sales." Chief Judge Prost, however, says:

"But the majority quotes nothing from the district court’s opinion to show there is such an error. And for good reason: there is nothing. Hence, there is no error.

The words 'sole' and 'predominant' are not even present in the district court's opinion. There is simply nothing in the district court's opinion that explicitly or implicitly required Apple to show that the patented features were the 'sole,' 'predominant,' or 'exclusive' reasons for purchasing Samsung’s products."

A footnote clarifies that Judge Koh's decision used the words "exclusivity" and "exclusively" only in the context of irreparable reputational harm, an aspect the majority opinion didn't even reach.

In Chief Judge Prost's opinion, Judge Koh correctly applied the Federal Circuit's case law but her colleagues chose to be inconsistent with it:

"In making these factual findings [concerning the "Hauser survey"], the district court followed our case law faithfully. Nothing in the district court's opinion suggests that it deviated from our precedent. Rather, the majority deviates from our precedent by repeating as a mantra the phrase 'some connection' in [...] ('Apple III') detached from the causal nexus standard explained in our prior cases."

The following sentence also vents the chief judge's anger:

"The majority has no legitimate basis to reverse the district court."

As for the aforementioned Hauser survey, Chief Judge Prost is underwhelmed by it:

"Hamstrung by the deficiencies in Apple's direct survey evidence, the majority trumpets instead Apple's 'copying' evidence and even creates new evidence." [...]

"[T]here was no evidence at all of such 'carriers' or users' preference;' there was no 'strong' evidence of 'copying;' and 'copying' alone is not dispositive to establish a causal nexus to Apple's alleged irreparable harm from lost sales."

In the copying context, Chief Judge Prost criticizes her colleagues for quoting as a district court holding what was actually a reference to certain Apple theories Judge Koh disagreed with.

The final paragraph from the dissent:

"Based on this record, I cannot agree with the majority's broad warning that '[i]f an injunction were not to issue in this case, such a decision would virtually foreclose the possibility of injunctive relief in any multifaceted, multifunction technology.' See Majority Op. at 22. Rather, injunctive relief will be appropriate when and if, consistent with our case law, the causal nexus requirement is met. This is not such a case."

The only part of Chief Judge Prost's dissent that I don't agree with is her take on the public interest. On that one I'm closer to the majority position. However, that factor doesn't matter if one follows Chief Judge Prost's reasoning on the causal nexus requirement.

Apple will benefit from this decision in any near-term settlement talks, but this is not over yet. There could be a full-court review, and while the majority opinion strongly suggests that Judge Koh should enter an injunction, Judge Koh denied one in the first case despite an appellate victory for Apple, and Apple then dropped its appeal of that decision on remand. Furthermore, an injunction over something like slide-to-unlock would be merely symbolic because even Apple didn't claim in the second California case that Samsung's more recent devices were infringing that patent. The only patent that would likely give rise to disagreement between the parties is the '647 "quick links" patent.

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