On Friday, the largest U.S. wireless carrier, Verizon, asked a federal court for permission to file an amicus curiae ("friend of the court") brief in support of Samsung against Apple, and provided its proposed brief at the same time. I reported and commented on this.
On Tuesday, Apple asked the court to throw out the proposed brief or alternatively let Apple respond by a deadline that minimizes disruption of the process. Here's Apple's filing (and below, my analysis):11-09-27 Apple Opposition to Verizon Motion
At this stage, Apple doesn't address the substance of Verizon's brief. In my view, that brief is weak and flawed, and I'm sure that Apple has no shortage of ideas for how to respond to the content of that brief, but for now this is just a proposed brief and the first question is whether the court will let Verizon intervene at all.
Apple notes that "[t]he Federal Rules of Civil Procedure do not provide for a non-party's submission of amicus briefs in district courts". In all of the many lawsuits concerning wireless devices that I monitor, this is indeed the first attempt by someone to file such a brief. In U.S. Supreme Court cases there are usually many amicus briefs -- for example, companies like IBM and Google filed amicus briefs in the Bilski case concerning the patent-eligibility of business models. But appellate court decisions on fundamental legal issues are quite a different thing from the public interest issues Verizon is trying to raise in Apple v. Samsung.
Apple's primary concern at this point is timing. According to Apple, Verizon's submission "would have been untimely by several weeks" even if it had been submitted in an appellate court, where such a brief should be filed "no later than 7 days after the principal brief of the party being supported". Samsung filed its reply to Apple's motion for a preliminary injunction on August 22, so Verizon's amicus brief would have been due by the end of August.
Apple's motion for a preliminary injunction was filed almost three months ago; discovery was closed about a week ago; Apple's reply brief (defending its motion for a preliminary injunction against Samsung's opposition) is due in a few days; and the hearing on the motion is less than three weeks away. If the court does accept Verizon's brief, Apple at least wants to be "allowed to respond to Verizon's submission on October 6, 2011 – a week after it submits its reply brief [to Samsung's opposition to the motion for a preliminary injunction]" in order to "avoid conflicts with Apple's preparations relating to that brief".
There's an interesting footnote in Apple's letter:
"Verizon's counsel first sought Apple's consent for Verizon to submit an amicus brief on that same day [September 23, the day when Verizon filed its brief]."
Verizon probably didn't expect Apple to support its plan anyway, but it looks like Verizon was in a real hurry last week. It may have taken Verizon quite some time to decide whether and how to try to influence Apple's litigation with Samsung, siding with one of its handset partners against another. Whatever the reason for the delay may have been, Apple considers this timing to be "disruptive to Apple's ability to present its positions to the Court in an orderly fashion" and to deprive Apple of the "opportunity to seek discovery (whether from Verizon, Samsung, or another company) to rebut Verizon's claim that a preliminary injunction is contrary to the public interest".
The (un)timeliness issues Apple raises might be enough of a reason for the court to deny Verizon's request for permission to file an amicus brief. But even if the court admitted Verizon's brief, it can easily set a convenient deadline for Apple to respond, given that Verizon's filng was unusually late.
At the end of my original reaction to Verizon's filing I already said that its substance wasn't particularly convincing. It looks like more of a "political" initiative. Verizon may have achieved its primary objective -- giving the impression of support for Google and Samsung among major carriers (though Verizon is only one of them) -- whether or not the court formally accepts its amicus brief.
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