Sunday, July 1, 2012

Judge Koh deals next blow to Samsung, denies all 12 of its summary judgment requests

On Saturday, Judge Koh denied the entirety of a comprehensive summary judgment motion that Samsung brought in May. Samsung attacked the validity of each and every one of the intellectual property rights asserted by Apple at this stage as well as Apple's FRAND-related antitrust claims, and failed all the way. It is very unusual for such a multi-pronged motion by a major industry player to fail entirely. This presumably concludes a dreadful week for Samsung in the Northern District of California, which previously involved a preliminary injunction against the Galaxy Tab 10.1, a far more important preliminary injunction against the Galaxy Nexus, the dismissal of one of Samsung's patent infringement claims further to Apple's summary judgment motion, and a clear Apple victory over expert reports.

GigaOM's Tom Krazit nailed it (on the two injunctions):

"Even coming off the high of Google I/O, these developments are not good for Google and Android."

If things go on like this week, Samsung is going to suffer a severe case of NorthernDistrictOfCaliforniaphobia. But this does not in any way call into question the work of Judge Koh, who denied Apple's first motion for a preliminary injunction last year (a decision that the Federal Circuit later reversed in part, paving the way for the Galaxy Tab 10.1 ban). As far as design issues are concerned, Samsung has no one to blame but itself, and on the software side, Google has most if not all of the responsibility.

With respect to the wholesale failure of Samsung's multi-part motion for summary judgment, Apple's lawyers clearly made a smart tactical choice. They could have tried to attack all seven Samsung patents-in-suit. Instead, they decided to focus on only three of them, and succeeded in one of those cases as I mentioned above. Samsung, by contrast, carpet-bombed all of Apple's claims and got no result. However, this is just not a matter of tactics but also speaks to the merits of the parties' claims.

If one wanted to look for the good among the bad here for Samsung, the fact that summary judgment narrowed the totality of claims at issue in this litigation by only one Samsung patent means that Apple may have to withdraw, with the right to reassert in a subsequent litigation, some of its claims. Judge Koh has made it clear that there are limits as to the hours of speaking time the parties get at trial, and on the number of exhibits. Samsung continues to argue that the case isn't trial-ready until Apple winnows its claims to a greater extent. That debate will continue. But Apple now has even more tactical options than before. For example, it might decide to enforce its Siri-like patent against the S III right away (by moving for a preliminary injunction) even though the summer trial could (but need not) be delayed.

I think the litigation has reached a point at which Judge Koh realizes perfectly well that Samsung and its "partner in crime" Google are infringers (whose counterclaims are dubious at least), and that the full force of the law must be brought to bear. Look at the following sentence from the Galaxy Tab 10.1 ruling:

"Although Samsung has a right to compete, it does not have a right to compete unfairly, by flooding the market with infringing products."

Samsung can still defeat any of these claims at trial. Summary judgment is the fastest but not the only way to defend oneself against (or prevail on) a claim. But besides the fact that successful summary judgment requests, such as Apple's (with respect to one Samsung patent), are dispositive of issues, all of these interim decisions, including the aforementioned one on expert reports, also provide an indication as to where things are going. For example, the positions Judge Koh took on Samsung's numerous invalidity arguments may enable Apple to succeed on motions in limine (last-minute motions to disallow certain arguments at trial). Analyzing all these intermediate decision is like looking at the first or second derivative of a graph -- and it doesn't look pretty for Samsung and Google.

Another such derivative is the ability of parties to get each other's expert witnesses excluded (in whole or in part). Judge Koh also issued a ruling on Apple's and Samsung's motions in this regard. While Samsung had used very aggressive rhetoric, accusing Apple's experts of "slavish adoration of their client" and suggesting (in other words) that they had become absorbed by a reality distortion field, Apple's attack on Samsung's experts was lower-key -- but no less successful. Either party brought eight anti-expert motions, and in purely numerical terms, they got the same outcome: five denials, two grants, and one mixed result ("granted in part, denied in part") each.

At least Samsung didn't lose this battle, too.

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