Friday, August 31, 2012

Apple asks Judge Koh to reconsider schedule for post-trial decisions on injunctive relief

At close of business on Thursday, Apple filed a request for permission to bring a motion for reconsideration of Judge Koh's scheduling decisions relating to certain post-trial proceedings. Apple complains that the court currently has "asymmetrical" schedules for its decision on Samsung's request to dissolve the Galaxy Tab 10.1 injunction (hearing in September) and for its decision on Apple's request for injunctive relief over the patents the jury found infringed (hearing in December).

This is not just a minor scheduling issue. This has the potential to affect the probability of Samsung being allowed again to sell tablets in the United States that look very much like the iPad, not just this Christmas Selling Season but also beyond, at least until the appeals court decides. And looking beyond this matter, it highlights the equal-treatment dilemma that has been plaguing this California lawsuit for some time, especially recently.

Just like Samsung previously (and successfully) argued that there should be an adverse inference jury instruction against both parties, or against neither one, Apple now demands equal treatment as well. Apple argues that "[its] motion for injunctive relief is more urgent than Samsung's request to dissolve the [Galaxy Tab 10.1] injunction", but in any event, "Samsung's motion certainly should not be addressed before Apple's motion for injunctive relief". In other words, if Apple doesn't get a new injunction in time for the Christmas Selling Season, it at least wants the existing one to stay in place.

At first sight, this may look like Apple doesn't want Samsung to enjoy an injunction-free Christmas Selling Season (the Galaxy Nexus injunction is a separate story and related to a different lawsuit). But there's much more to it. It's not just about whether the Galaxy Tab 10.1 is available in the United States in October or November. The injunction is not limited to the Galaxy Tab 10.1. It also covers any future products that are "no more than colorably different". The most important question is whether Samsung can launch future, commercially more important tablets in the U.S. that bear the same kind of resemblance with the iPad.

Just like I disagreed with Samsung's demand for equal treatment in the adverse inference context, I now think that the potential dissolution of the Galaxy Tab 10.1 injunction is objectively more urgent than the grant of a whole new injunction. That said, Apple's motion flags an inconsistency in Judge Koh's reasoning for denying Apple the opportunity to win a preliminary injunction because of overlaps between the parties' upcoming Rule 50 motions (motions to overrule the jury) and their requests relating to injunctive relief. If the right order in which to decide these issues is to adjudicate the Rule 50's first (or at least simultaneously), then a decision to dissolve the Galaxy Tab 10.1 injunction prior to Apple's Rule 50 motion would put the cart before the horse.

Apple could end up being disadvantaged by the alleged asymmetry not in terms of what is more urgent but in terms of how the schedule might affect the outcome. There's certainly a risk for Apple that Judge Koh will now rush to a dissolution of the Galaxy Tab 10.1 injunction prior to consideration of Apple's Rule 50 motion. Theoretically, she could dissolve the injunction in September and still grant Apple's Rule 50 motion later, overruling the jury's finding that the relevant design patent was not infringed. In that event, Apple could still win a permanent injunction. But there's a risk to Apple that the court might be uncomfortable (even if only subconsciously) with the absurd appearance of an on-again-off-again injunction. This injunction already has a complicated procedural history: it was originally denied, then granted after Apple's appeal, and then the jury cleared Samsung of infringement of the design patent this injunction is based upon. If it is now dissolved, Apple's Rule 50 motion will, not legally but practically, face an even higher hurdle than such motions generally do.

My position is in between Judge Koh's scheduling orders and Apple's request. I believe it is justifiable to revisit the Galaxy Tab 10.1 injunction a couple of months before a new injunction might issue. But if that is so, Apple's related Rule 50 motion should be fully briefed, heard and adjudged on a schedule consistent with the one for the potential dissolution of the existing injunction. Subsequently, all other Rule 50 and relief issues than the Galaxy Tab 10.1's alleged infringement of Apple's iPad design patent could be briefed.

It's easy for the court to say that there are so many issues on the table that consolidation of the parites' motions is needed for efficiency reasons. And it's also easy to say that the court doesn't have the resources to hold a hearing on a preliminary injunction before the December hearing on a permanent one, so there's no window of opportunity for a preliminary one (which would always just be meant to be in place until a decision on a permanent one). But Apple's motion for reconsideration accurately highlights an inconsistency in the reasoning the court has presented so far. There must be a better reason, or a different schedule.

Many people would intuitively say that dissolving an improperly-granted injunction (which this one is if the jury was right) is more urgent than granting a new one. I guess most judges would also feel worse, all other things being equal, about delaying the dissolution of an improperly-granted injunction than about delaying the grant of a new injunction. And while this is not a legal criterion at all, this may feel particularly bad if a foreign company suffers such an injunction at the request of a local-hero competitor. If a country's courts did this all the time, there would appear to be a protectionist agenda in place. That's simply a political reality.

Judge Koh may have had similar feelings and concerns. But she didn't express them. She just attributed it all to case management considerations, and if one applies her own logic, as Apple does in its motion, then Apple is entitled to equal treatment and (at least) identical schedules.

Apple's motion may not result in perfectly symmetrical schedules, but in that case, Judge Koh will have to explain why Samsung's entitlement to a swift resolution of its request for dissolution of an existing injunction trumps Apple's entitlement to a swift adjudication of its push for the grant of a new injunction.

The problem is that it's not easy to develop a legal theory for everything that common sense suggests. The four factors for preliminary injunction decisions (likelihood of success on the merits, irreparable harm, balance of equities, public interest) can favor a plaintiff or a defendant. On average, it's harder to win a preliminary injunction than to prevent one from issuing, but there are still many cases in which the balance of the equities and the public interest tip in favor of right holders, and even some outrageous cases in which they tip sharply in their favor.

One fact that Apple is certainly going to be be pointed to (by Judge Koh or Samsung, or both) is that Samsung itself won't be able to ask for injunctive relief until its Rule 50 motions succeeds at least in part with respect to Samsung's own offensive claims against Apple. Judge Koh said that if and when this happens, she will set a briefing and hearing schedule for an injunction motion. This is an additional asymmetry to the one Apple complains about. It's due to the fact that Samsung didn't prevail on any of its offensive claims at trial. But Samsung can argue that Apple actually gets to pursue injunctive relief at the December 6 hearing, while Samsung would only be able to do so afterwards, and Apple wasn't more successful at trial with its tablet design patent than Samsung was with its five technical patents.

Apple would obviously argue that its Rule 50 motion is much more likely to succeed than Samsung's corresponding motion. Apple rightfully points to the fact that this preliminary injunction matter had previously been before the Federal Circuit. But the unanimous part of the Federal Circuit's decision does not say enough about the infringement issue to be of much use to Apple in arguing that the related part of the jury verdict was unreasonable. Circuit Judge O'Malley's dissenting opinion takes a crystal clear position that there is an infringement, and having at least one circuit judge's dissenting opinion on its side is more than Samsung can say. With Judge Koh's pre-trial grant of a preliminary injunction and Circuit Judge O'Malley being totally on Apple's side, its Rule 50 motion will face a lower hurdle than Samsung's motion, but still a considerable one.

We'll see soon whether Judge Koh modifies the schedule (at least with respect to Apple's Rule 50 motion) or upholds and justifies the proposed asymmetry, either by taking an early position on the merits of the parties' entitlement to injunctive relief (including the related Rule 50 motions), or by arguing (even in the event that there is no precedent she can cite to) that it's good policy to address the potential dissolution of an injunction after a jury verdict of non-infringement (which in any event casts at least significant doubt on the merits of the underlying claims) at the earliest opportunity, even if this occurs before a decision on new injunctions. No matter what she is going to do, the asymmetrical schedules Apple complained about are a good example of Apple not having a home court advantage with this judge. Samsung and its supporters don't like the verdict but can't complain about Judge Koh.

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