The United States Court of Appeals for the Federal Circuit just entered an order that contains good news for Samsung. As the Korean electronics giant requested, its appeal of the preliminary injunction against the Galaxy Nexus will be evaluated on the fast track. Samsung has until Monday (July 16) to file its opening brief; Apple will file its answer until July 30; and Samsung can reply within another week (until August 6). The court will soon schedule a hearing.
The order does not address for how much longer the stay of the injunction remains in place. There could be another order later today, or otherwise I believe this will be decided next week.
The expedited appeals process is important for Samsung since the trial of the related federal lawsuit in California is currently almost two years away. The Apple v. Samsung case that goes to trial later this month is about different intellectual property rights and different Samsung products (including the Galaxy Tab 10.1).
The Federal Circuit also accepted Sprint's and Google's amicus curiae briefs against Apple's objections. In particular, Apple pointed out that Google is not an amicus curiae in terms of a third party, given that it co-developed the Nexus and that it was represented in its intervention in district court by the same law firm (Quinn Emanuel) as Samsung. Apple said that Google hired White & Case for its representation before the Federal Circuit only to conceal its close ties with Samsung.
There's only one small item in the order that Apple will like: Apple's sur-reply, filed this afternoon, to Samsung's motion to stay the injunction has also been accepted. In its reply to Apple's opposition to the motion, Samsung had complained about Apple's takedown notices to Samsung's downstream customers (U.S. carriers and retailers). Apple's sur-reply commented on this new theory (it did not come up in Samsung's original motion). The fact that the sur-reply is accepted doesn't mean that the court will agree with it, but it will now consider it. Here's the text of that pleading:
"Samsung, in its reply brief, has not disputed that immediate enforcement of the injunction would result in no irreparable harm to Samsung. In the absence of such harm to the moving party, there is no conceivable basis for issuing a stay of the injunction. Without addressing that fundamental point, Samsung’s reply focuses solely on supposed harms to third parties, which do not and cannot warrant a stay pending appeal. See, e.g., Apple's Response to Sprint's Motion for Leave to Participate as Amicus Curiae.
To support its new theory, Samsung seizes upon a letter that Apple sent to various carriers and retailers, informing them of the injunction and asking them to discontinue the sale of infringing Galaxy Nexus devices. That Apple would inform others of the entry of the injunction could not have come as any surprise to Samsung given Apple’s continued efforts to enforce its intellectual property rights. Moreover, Apple’s letter shows nothing beyond the entirely predictable consequence of Samsung's infringement--i.e., the infringing products must be taken off of the market. It is not a legally cognizable harm to halt downstream sales of stolen, pirated, counterfeit, or infringing products.
In any event, as the court below and this Court have repeatedly found, the mere fact that third parties might face a disruption in their efforts to distribute infringing products is absolutely irrelevant at the stay stage. Because Samsung is the moving party seeking a stay, Samsung has the burden of proving that it would be irreparably harmed in the absence of an injunction. Although harms to third parties (and the public at large) might be considered when addressing the 'public interest' factor, a belated submission on that single factor does not satisfy Samsung's heavy burden of showing that a stay is necessary to protect its own interests. Indeed, in the absence of irreparable harm to Samsung—which Samsung now concedes--no stay may issue regardless of all the other factors.
Samsung's motion to stay the preliminary injunction should be denied."
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