Tuesday, July 10, 2012

Sprint files amicus brief with Federal Circuit, opposes Galaxy Nexus ban

Apple still has two days left to file its opposition to Samsung's motion to stay the Galaxy Nexus ban for the entire duration of the appellate proceedings before the Federal Circuit. For the time being, the injunction cannot be enforced, but only until the Federal Circuit decides on whether to extend or lift this stay.

At this critical juncture, third parties have started to chime in. One of them, Google, is only formally a third party. Since Google co-developed the Galaxy Nexus with Samsung, it's more of a co-defendant. Google filed its brief on Friday. A major wireless carrier, Sprint, intervened today (Tuesday).

Google refers to the technology covered by Apple's '604 "unified search" patent as "a trivial patented aspect of a single application on the phone, with no evidence that that patented aspect influenced sales". It also calls it "at best, [...] a very minor aspect of the Galaxy Nexus phone's overall functionality". It then criticizes that Judge Koh relied on evidence showing the popularity of Siri among Apple's customers, arguing that what matters is what Samsung's customers like. But Google concedes that "the iPhone and the Galaxy Nexus may compete for the same customers". Still, "that does not mean that the feature preferences of Galaxy Nexus buyers are the same as the feature preferences of iPhone buyers". This is a bit of a stretch, and Google's claim that the Nexus can do well without infringing on the '604 patent can be turned against it by arguing that it should simply remove this allegedly unimportant feature instead of continuing to infringe.

Sprint's filing focuses on the harm that the carrier claims to suffer from the preliminary injunction at issue, and generally warns against the implications of preliminary injunctions against smartphones. The amicus curiae brief was filed by a Sprint Nextel Corporation subsidiary named Sprint Spectrum L.P., which describes itself as "the primary Sprint-related entity that sells various smartphone devices and corresponding services to end users in the United States".

Sprint's letter contains several warnings that "preliminary injunctive relief should not become a staple of the 'smartphone wars'". Sprint says it would take this position if the roles between Apple and Samsung are reversed, or if different companies were involved. It says it's an "unwitting victim" of this dispute. Sprint doesn't comment on the merits of the case. It just wants the issue to be fully litigated without an immediate ban. Since "[b]ringing a device to market takes hundreds of people approximately 9-12 months", Sprint argues that preliminary injunctions come down too fast to replace banned products with non-infringing new ones. It furthermore says that "[a]n immediate preliminary injunction against a device substantially and irreparably harms Sprint by leaving a void in its device portfolio".

On the one hand, I can understand Sprint's and any other carrier's interest in the uninterrupted availability of wireless devices. On the other hand, patent litigation in the United States is so incredibly slow that I can also understand Apple's pursuit of preliminary injunctions. There's no easy answer. The debate will continue for some time.

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