Tuesday, July 19, 2011

Apple won't get decision on preliminary injunction against Samsung before mid October

Apple's patent enforcement against Android is a three-front war with HTC (where Apple is on the winning track now), Motorola (a dispute that gets little attention though it's also very important), and Samsung.

A few hours ago Judge Lucy Koh -- the federal judge presiding over Apple v. Samsung -- issued an order on the schedule for the process triggered by Apple's motion for a preliminary injunction. That schedule is pretty close to the one favored by Samsung and sets the hearing date in mid October, as opposed to Apple's preference (early September).

After Apple and Samsung submitted their divergent proposals for this schedule, I said the judge was likely to order a schedule somewhere in between the two, but at the time I actually thought she was going to come down in the middle or maybe closer to Apple's position. However, in my most recent post on the Samsung dispute, I pointed out that Judge Koh doesn't share Apple's sense of urgency. That became apparent in a filing she made on a different scheduling issue, and that's why I'm not too surprised to see her agree with Samsung more so than Apple on the roadmap toward a possible preliminary injunction.

In fact, the most important date -- the hearing date, at or after which the decision will be taken -- is going to be October 13, 2011. That's only one day earlier than Samsung's proposal but five weeks after Apple's preferred date.

Here's a table of the different milestones so we can conveniently compare the judge's scheduling order to the parties' proposals and see that the more advanced the milestone is, the closer the judge came down to Samsung's position:

Samsung's discovery of AppleAug 5Aug 19Aug 8
Samsung's opposition briefAug 12Sep 9Aug 22
Apple's discovery of SamsungAug 26Sep 30Sep 21
Apple's reply to opposition briefAug 31Oct 7Sep 30
hearing dateSep 8Oct 14Oct 13

The judge acknowledged Apple's claims of irreparable harm but concluded:

"[T]he Court agrees with Samsung that Apple's motion presents complex issues of patent infringement, validity, and construction, and seeks an extraordinary form of relief. As such, the Court is inclined to provide the parties an opportunity to brief the issues as fully as possible, thereby ensuring that the Court has sufficient information to make an informed determination of the motion."

The fact that the judge agrees with Samsung on the need for sufficient time doesn't necessarily imply that a denial of Apple's motion for a preliminary injunction is the most likely outcome. However, the hurdle for a preliminary injunction is very high and it would have been a more encouraging indication for Apple if the judge had ordered a more compressed schedule closer to the one favored by Apple. That said, the judge did grant Apple some expedited discovery in order to enable the motion for a preliminary injunction in the first place.

Also, let's not forget that there's a lot at stake for Samsung because a preliminary injunction in mid October could have a material adverse effect on Samsung's U.S. revenues throughout and beyond the Christmas selling season. In light of seasonality, a mid-October injunction would still be almost as impactful as an early-September one.

The other scheduling dispute: expedited trial

In my previous post on Apple v. Samsung I explained the different kinds of scheduling issues at stake here. There were three scheduling issues to be resolved before that post. The ordered discussed further above set the schedule for the preliminary injunction process. Last week the judge decided on the schedule for the process leading to a decision on a possible expedited trial -- in other words, a meta-schedule (a schedule for how to decide on a schedule). So there's one scheduling issue remaining: the question of whether or not there should be an expedited trial (for the main proceeding, i.e., leaving aside the separate track that the roadmap toward the preliminary injunction represents). Apple wants the trial to begin on February 1, 2012.

On Friday, Samsung's lawyers filed their opposition brief. In that one, they argue that there are so many mutual assertions at issue that "the Court should consider enlarging the case schedule, not cutting it drastically short." (emphasis on "enlarging" as in the original document)

Samsung opens its brief by pointing out that "Apple chose to file its lawsuit in this, its 'home court'." That's obviously a pun.

Samsung argues that Apple "has sought not only to enjoy the benefits of a local jury pool and the intellectual property expertise of the judges who preside here but also understood that this suit would be subject to--and indeed bound by--this Court's Patent Local Rules." That's a can't-have-your-cake-and-eat-it argument: Apple has some benefits from being in Northern California but must accept that the "Patent Local Rules", a set of procedural rules for patent cases in that district, envision a much more relaxed schedule than the one Apple is asking for.

According to Samsung, "the median time to jury trial for a civil litigation in this district [is] 22.8 months", and Apple should have known about that because "it has been involved in over 100 litigations in this district".

The filing claims that Apple is worried that "Samsung might 'beat' [Apple] to the finish line in a different, narrower case before a different tribunal", by which Samsung apparently means its ITC complaint, which was filed ahead of Apple's. I believe Apple is similarly concerned (even though Samsung doesn't say or suggest so) about the possibility of Samsung obtaining a first ruling against Apple somewhere outside the United States. Samsung brought claims against Apple in eight venues in six countries on three continents.

Samsung's legal argument for rejecting Apple's motion for an expedited trial is based on typical case management considerations such as the scope of the case (the total of Apple's claims and Samsung's counterclaims amounting to "claims of infringement of 20 utility patents, 7 design patents, 10 trademark/trade dress registrations, and 5 trademark applications"), the particular difficulty of the so-called "soft" intellectual property claims brought by Apple (by which Samsung apparently means trade dresses as opposed to patents and trademarks), the "potentially enormous consequences for all parties involved", and logistical considerations such as the fact that many of Samsung's witnesses are based in Korea and don't speak English.

Samsung also claims that "Apple has identified no evidence that suggests anything other than that Samsung's products are winning in the market on their merits--for instance, their bigger and better screens and faster download times--and not because of any alleged 'copying' of Apple's purported intellectual property". My take on that: as a user of a Galaxy S II, I know that Samsung makes great hardware, but it takes software to bring that hardware to life, and that software appears to infringe on a number of third-party intellectual property rights. I wouldn't support each and every one of Apple's claims, but Apple has a point that Android is an infringing platform in general and that some of Samsung's products look particularly similar to the iPhone and the iPad.

Toward the end of its pleading, Samsung points to the court's previous scheduling decision (the one on the meta-schedule) and suggests between the lines that Apple could have filed its complaint with a court known for faster times to trial -- a so-called "rocket docket" -- in the first place:

"This Court has already rejected Apple's request for a shortened briefing schedule and an accelerated case management conference date, and it should again decline Apple's invitation to turn itself into a 'rocket docket' simply because Apple is now experiencing buyer's remorse for having chosen to file its complaint here."

Apple will now get to respond to that pleading, and on August 24 there will be a hearing on this matter. For now I am not convinced that Apple's motion for an expedited trial will be granted.

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