Saturday, July 9, 2011

Apple and Samsung now bickering over schedule for potential preliminary injunction: early September or mid October?

More disharmony in the intense, global patent war between Apple and Samsung: the two litigants responded to Judge Lucy Koh's request for proposed schedules. In its motion for a preliminary injunction against four Samsung devices, Apple had proposed a hearing on August 5, which the judge thought was too soon.

Formally, Apple and Samsung made a joint submission to the court. But -- as I expected -- they couldn't agree on much more than to disagree.

Apple's new proposal calls for a hearing as early as September 8, 2011, while Samsung's schedule provides for an earliest possible hearing date of October 14, 2011.

Here's a table of the key milestones and the different proposed deadlines:

Samsung's discovery of AppleAug 5Aug 19
Samsung's opposition briefAug 12Sep 9
Apple's discovery of SamsungAug 26Sep 30
Apple's reply to opposition briefAug 31Oct 7
earliest hearing dateSep 8Oct 14

You can see that their schedules are divergent: for the first milestone there's only a two-week difference, which gradually becomes a five-week discrepancy.

Let's look at how they defend their respective positions and attack each other's proposals. Samsung says the injunction could be so impactful that it really needs to be well-considered:

Samsung seeks a modest 10 weeks to have a fair opportunity to respond to Apple’s request for extraordinary relief that, if granted, could halt the sales of four of Samsung's innovative products and cause enormous disruption to its customers.

Then Samsung highlights that Apple changed its strategy in terms of which types of intellectual property rights Apple actually asserts in its motion for a preliminary injunction:

Apple sought expedited discovery to support a purported preliminary injunction motion based on trade dress/trademark claims, but then abandoned those claims in its preliminary injunction motion, which focuses on three design patents and one utility patent.

I believe that Apple changed plans concerning those trade dress and trademark claims because the judge hinted that Samsung might argue against such claims with possible differences between the design of the next iPhone/iPad product generations and that of the respective predecessors. With the three design patents and the software patent Apple asserts, the design of future products is less of an issue.

Finally, Samsung suggests that this can't be all that urgent since Apple took its time to file its motion for a preliminary injunction instead of doing so shortly after its original complaint:

Apple delayed for months from the inception of this case before filing its motion on these patents. Surely, Apple can wait another few weeks in order to afford Samsung a chance to defend itself from Apple's shifting preliminary injunction allegations.

Subsequently, Samsung talks about some procedural detail, including that Samsung also proposes a fine-grained set of deadlines related to discovery. Samsung concludes its pleading as follows:

In short, Samsung's proposed schedule gives the parties a fair and reasonable opportunity to conduct discovery and brief the complex issues raised in Apple's motion. Apple's schedule leaves insufficient time for Samsung to fairly oppose the extraordinary relief that Apple seeks. Apple's schedule also leaves Samsung with a mere seven days to submit its opposition after discovery closes. That, on its face, is insufficient to prepare for a motion of this magnitude.

Apple accuses Samsung of stalling and underscores, once again, the extraordinary sense of urgency of this matter:

Apple has sought expedited relief from the outset of this case to prevent irreparable harm caused by Samsung's unlawful copying of Apple's revolutionary iPhone and iPad products. Samsung, in contrast, has continually sought to obstruct Apple's efforts to obtain expedited relief, as evidenced by Samsung's proposed briefing schedule.

Apple defends its proposed schedule as reasonable:

Apple's proposal provides Samsung with 6 weeks to prepare its opposition, or 4 weeks more than the normal period. This is a reasonable schedule that provides Samsung with ample time to take expedited discovery and to prepare its opposition.

Apple also portrays Samsung's slower schedule as excessive and as not warranted by its tasks at hand:

Samsung [...] has proposed to file its opposition ten weeks after Apple filed its motion and to hold the hearing at least three and a half months after Apple filed its motion -- an extraordinary and excessive delay. Samsung does not need ten weeks to prepare its opposition to Apple's focused motion, which is limited to three design patents and one utility patent.

Note that Apple calls its motion "focused", while Samsung accused Apple of making "shifting" claims. Both mean the same thing: Apple doesn't assert trade dress and trademark rights in connection with the preliminary injunction (though still in the regular proceeding).

Apple then basically explains that what Samsung will have to do in this process is not as big a deal as Samsung says:

Samsung does not need discovery to evaluate whether its products look substantially the same as the patented Apple designs to an "ordinary observer," which is the test for design patent infringement. Nor does Samsung need discovery to check if its products operate in the manner claimed by the Apple utility patent, or to compare the prior art with the Apple patents. Indeed, Samsung has already compared the prior art with Apple's designs in the handout it submitted two months ago at the May 12 hearing. [...] Thus, Samsung can prepare its opposition now and revise as discovery proceeds. Apple has proposed to provide all discovery by August 5, and that Samsung will then have one additional week to finalize its opposition, which will be due on August 12. Given that Samsung will already have had five weeks to prepare its opposition (July 1 to August 5), this is more than sufficient.

Apple concludes its pleading with the same line of thought with which it started it:

Time is of the essence. Each additional day that Samsung continues to sell infringing products results in additional irreparable harm to Apple. Apple requests that the Court adopt its proposed schedule and reject Samsung's attempt to delay the hearing on Apple's urgent motion for a preliminary injunction until three and a half months after it was filed.

It wouldn't be overly daring to predict that the judge may pick a schedule somewhere in the middle between the two. That's reasonably likely in such a situation. As an observer I believe Samsung's attempt to play for time is very transparent. Also, Apple has already modified its schedule significantly, pushing back the proposed hearing date by about a month as compared to its motion. I also think Apple is quite right that the infringement allegations at issue are pretty straightforward, and Samsung should be able to respond to them reasonably soon. So I wouldn't be surprised if the judge came down closer to Apple's position on this schedule, but Samsung might get a little more time than just one week after the end of discovery to file its opposition brief (though Apple has a point that Samsung can prepare the largest part of that brief anytime now).

There's another disagreement over schedules: Samsung also opposes Apple's proposal to speed up the overall proceeding. I will report on that when the judge has decided. The parties have expressed their views and I think we'll see an order soon.

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