Tuesday, June 26, 2012

Apple v. Samsung: injunction hearing on Friday, design patent dropped, transparency dispute

There have been some new developments in the first U.S. litigation between Apple and Samsung pending in the Northern District of California. Time for a roundup:

  1. Judge Lucy Koh has scheduled a preliminary injunction hearing concerning the Galaxy Tab 10.1 for Friday, June 29, 2012, as a follow-up to to the Federal Circuit's appellate decision. More detail below.

  2. Apple has dropped an iPhone user interface design patent as part of continuing efforts to narrow the case with a view to the upcoming trial. More detail below.

  3. The court is defending public access to filings against excessive sealing, pointing to Ninth Circuit law. For more detail on this one, I recommend Alison Frankel's article for Thomson Reuters News & Insight.

Galaxy Tab 10.1 preliminary injunction hearing on Friday (June 29)

At a summary judgment hearing last week (see this report by the IDG News Service), Judge Koh already scheduled a preliminary injunction hearing for Friday, June 29. A week ago I reported that a decision on Apple's post-appeal motion for a U.S. ban of the Galaxy Tab 10.1 over an iPad design patent was approaching after the Federal Circuit denied a Samsung request for a rehearing.

Late on Monday, Judge Koh entered an order for the upcoming hearing, telling the parties that, at the hearing, they "may address the two issues identified in the limited remand order by the Federal Circuit: (1) whether the balance of the hardships favors issuing a preliminary injunction, and (2) whether the public interest favors issuing a preliminary injunction", but "[n]o further briefing or evidence will be permitted".

The parties previously filed their related pleadings, so the court is already briefed. Apple brought its motion on May 18; Samsung responded a week later with a largely 4G-related argument, to which Apple replied on May 31 (see the first bullet point in this post). From the outset, Samsung argued that the district court would have to wait for the formal mandate from the Federal Circuit. Judge Koh nevertheless set the aforementioned, pretty expedited briefing schedule, but upon further consideration she canceled a June 7 hearing and denied Apple's motion as premature for the time being. In yesterday's filing, Judge Koh informs the parties that "the mandate from the Federal Circuit has been received and docketed by the Clerk" As a result, the ball is now, once again, in the district court.

I believe Judge Koh will decide very quickly on this one, either right from the bench on Friday or shortly thereafter. She also has a preliminary injunction motion targeting the Galaxy Nexus smartphone to adjudicate, following a June 7 hearing. She said that an order would issue shortly, but I predicted that this was going to take more than just a few days, though not as long as the decision on last year's motion (which took almost three months after the related hearing).

Apple drops iPhone user interface design patent (D617,334)

Last Wednesday, Apple gave notice of its "intent to dismiss claims concerning U.S. Patent No. D617,334, and a day later, Apple and Samsung filed a stipulation for the dismissal without prejudice (i.e., Apple could still enforce this patent against Samsung in another litigation) of this design patent.

During the last two rounds of narrowing proposals, Apple had already dropped two other design patents and announced that it was going to withdraw at least one more design patent. It has now apparently selected the D334 patent for this purpose.

From what I read about last week's hearing, Judge Koh keeps up the pressure with respect to narrowing. The parties will only get a limited amount of time and won't be allowed to file "thousands of documents", as Magistrate Judge Grewal informed them even ahead of Judge Koh's hearing. This means the parties will have to focus on their strongest arguments, and in order to do so, they may also decide to focus on even fewer intellectual property rights. Some pending summary judgment motions could also have a significant narrowing effect. Samsung still claims that Apple needs to drop more of its asserted rights. Apple definitely wants this case to go to trial on July 30.

There might also be some narrowing with a view to the FRAND issues raised by most of Samsung's offensive counterclaims. Judge Posner has shown how a court can deal efficiently with assertions of standard-essential patents. But Judge Koh appears to be much less aggressive when it comes to narrowing a case. And that may also benefit Apple for its own claims (which don't raise FRAND issues).

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