During the last 24 hours there have been various filings with the Federal Circuit in the cases relating to Apple's preliminary injunctions against the Galaxy Tab 10.1 and the Galaxy Nexus smartphone. I'm monitoring developments and may report on them again later today. For now I just wanted to highlight the most interesting development: a couple of Samsung filings say that Apple's enforcement activities include letters to "to many carriers and retail companies that currently sell" the banned products, telling them that "[a]t a minimum" they are required to "immediately remov[e] for sale the [banned product] from all physical and online venues under [their] direction or control".
Samsung filed letters from the San Francisco-based law firm of Taylor & Company sent on Apple's behalf to downstream customers. Apparently, letters relating to the Galaxy Tab 10.1 went out on June 28, and letters concerning the Galaxy Nexus were sent on July 3 (before the injunction was stayed).
Samsung claims that "Apple’s menacing letters greatly overreach, incorrectly claiming that third-party retailers are subject to the prohibitions of the preliminary injunction, which they clearly are not". In Samsung's opinion, "they are permitted to sell their existing inventory, even without a stay". However, both preliminary injunctions clearly relate not only to Samsung's employees, agents etc. (including its subsidiaries and "partners") but also to "those acting in concert with any of them". Here's what Judge Koh's orders say:
"Samsung Electronics Co., Ltd., Samsung Electronics America, Inc., and Samsung Telecommunications America, Inc., its officers, directors, partners, agents, servants, employees, attorneys, subsidiaries, and those acting in concert with any of them, are enjoined from making, using, offering to sell, or selling within the United States, or importing into the United States, [the relevant product], and any product that is no more than colorably different from this specified product and [infringe the relevant intellectual property right]."
Apple may be aggressive, but its understanding of the scope is not baseless. At the same time, Samsung is right when it points to previous decisions according to which someone who is not a party to a particular litigation cannot be enjoined or held in contempt "with respect to their independent conduct regarding the subject matter of the [underlying] case" -- but the question of how "independent" Samsung's carriers and retailers are in connection with their promotion and sale of those products is debatable.
In a reply brief in support of its motion to stay the Galaxy Tab 10.1 injunction, Samsung actually admits that its public statements are one thing and the actual business impact of the enforcement of such injunctions is a different story:
"Contrary to Apple's assertions [...], the public statements by Samsung representatives about the significance of the injunction on its global business operations do not defeat Samsung's argument of irreparable harm. Samsung's statements to reassure the market do not mean, or imply, that Samsung’s good reputation and good will are not being tainted by the preliminary injunction. Nor, of course, do those statements, made before Apple's threatening letters were known, account for Apple's attempts to interfere with downstream customers."
The above passage effectively says that "the first casualty of patent war is truth". I have previously disagreed with some of Samsung's public statements on court rulings.
Here's the text of a sample takedown notice from Apple to retailers that Samsung filed with the court (copies of such letters were provided to Samsung "pursuant to the submitting party’s obligation to provide notice to Samsung of a potential claim under their Supply Agreement"):
VIA FACSIMILE, REGISTERED MAIL, FEDERAL EXPRESS AND REGISTERED AGENT
Re: Apple Inc. v. Samsung Electronics Co., Ltd., et al., United States District Court, Northern District of California, Case No. C-11-01846 (LHK)
We represent Apple Inc. in the above-referenced action.
We enclose a copy of the June 26 preliminary injunction ordered entered by the U.S. District Court for the Northern District of California in this case together with a copy of Apple's U.S. Design Patent No. D504,889 (the '889 patent'). With the posting of the requisite bond, the order is now in effect.
The order provides as follows:
[T]he Court issues the following order enjoining the Galaxy Tab 10.1 from sale in the United States: Samsung Electronics Co., Ltd., Samsung Electronics America, Inc., and Samsung Telecommunications America, Inc., its officers, directors, partners, agents, servants, employees, attorneys, subsidiaries, and those acting in concert with any of them, are enjoined from making, using, offering to sell, or selling within the United States, or importing into the United States, Samsung's Galaxy Tab 10.1 tablet computer, and any product that is no more than colorably different from this specified product and embodies any design contained in U.S. Design Patent No. D504,889.
As the italicized language provides, the order applies not only to the named Samsung entities, but also to anyone "acting in concert" with them. Apple thus believes that the order extends to you because you may be selling, offering to sell, or importing the Galaxy Tab 10.1 tablet computer.
Please comply with the order by ceasing immediately to engage in any of the specified acts (e.g., importing, offering to sell, or selling within the United States) in connection with the Galaxy Tab 10.1 tablet computer and any product that is no more than colorably different from it and embodies the '889 patent's design. At a minimum, Apple believes compliance with the Court's order requires immediately removing for sale the Galaxy Tab 10.1 from all physical and online venues under your direction or control.
Please contact the undersigned if you have questions.
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