Yesterday, the CEOs and chief lawyers of Apple and Samsung started their two-day court-moderated settlement talks in San Francisco. Nothing is known about how those talks went on the first day. High-profile media and news agencies reported on this meeting right before it started (Reuters, Wall Street Journal, Financial Times, and many others).
But even in parallel to those talks, the parties' lawsuits are in full swing. On Friday, Apple filed a motion for a preliminary injunction against the Galaxy Tab 10.1, building on a partially successful appeal to the Federal Circuit. Late on Monday, Judge Lucy Koh set the schedule. She granted Apple's request for an expedited schedule despite Samsung making a legal argument that the district court should firstly await a potential Fed. Circuit rehearing (which Samsung is going to request), but Samsung successfully argued for a hearing. In the blog post I just linked to, I wrote that "should Judge Koh unexpectedly grant another hearing on that one, she might as well put this on the agenda for June 7", the day on which the court will also hold a hearing on a motion Apple filed in February 2012 for a preliminary injunction against the Galaxy Nexus smartphone. Judge Koh made that choice.
With respect to the sense of urgency, Judge Koh wrote the following:
"While it appears that there is conflicting authority regarding whether this Court has jurisdiction to amend the order on the preliminary injunction prior to the issuance of the mandate from the Federal Circuit, the Court is also cognizant that prompt resolution of this matter is desirable."
A scheduling order isn't a substantive decision, but in connection with preliminary injunction requests, it certainly favors plaintiffs if the court agrees that a swift decision is needed.
Samsung now has until this coming Friday (May 25) for its opposition brief, and Apple gets to file a reply brief on the following Thursday (May 31). The judge wants those pleadings to be focused on the balance of hardships, public interest considerations, and the appropriate amount of a bond. If Apple prevails (which it probably will), it will be required to post a bond. Under the law, a court "may issue a preliminary injunction or a temporary restraining order only if the movant [in this case, Apple] gives security in an amount that the court considers proper to pay the costs and damages sustained by any party [in this case, Samsung] found to have been wrongfully enjoined or restrained". Apple can easily afford this, though Samsung will make every effort to set this amount as high as possible.
The court's decision to press on with this matter would be another reason for Samsung to be constructive at the ongoing settlement talks, but in this worldwide dispute of gigantic proportions, a U.S. sales ban on the Galaxy Tab 10.1 (which can be designed around anyway) won't represent a tipping point.
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