Thursday, September 6, 2012

Judge Koh denies Apple's request to synchronize dissolution of existing and grant of new injunction

A week ago, Apple brought a motion for leave to file a motion for reconsideration, essentially complaining about "asymmetrical" schedules for a decision on Samsung's request to dissolve the preliminary injunction against the Galaxy Tab 10.1 and a decision on new injunctions requested by Apple. Judge Koh just denied Apple's motion. While Samsung's motion for dissolution will be heard on September 20, Apple will have to wait until (at least) December before any new injunction issues.

Judge Koh doesn't allow Apple to ask for reconsideration of those schedules simply because "no change in facts or the law has changed the Court's opinion" on this matter since Apple had the opportunity to oppose Samsung's request for an expedited schedule for its dissolution request. Apart from that, she doesn't believe that Apple is entitled to synchronized schedules on these issues since (as Samsung's lawyers argued) Samsung's motion relates to only one product's alleged infringement of a single design patent while Apple was going to ask for a preliminary injunction based on the identified infringement of seven patents by eight exemplary infringing products, with a permanent injunction request potentially targeting an even longer list of accused products. (Just to clarify this here again: Judge Koh previously worded her injunctions in such a way that not only the specifically-named products would have to be modified to avoid further infringement but that any infringement of a pattern that is "no more than colorably different" from that of the exemplary infringing products would also have to be avoided.)

This is not a major setback to Apple, which simply tried to make a Samsung-style equal-treatment argument in hopes of a more favorable schedule. Judge Koh's decision comes as little surprise, and after I saw Apple's motion I already said that dissolving a potentially improperly-granted injunction is more urgent than granting a new one, even though technically a plaintiff may suffer even more from having to compete with infringing products than a defendant from having to wait until being allowed to sell a given product again.

While I don't mean to criticize the outcome, which isn't nearly as unfair as Apple's motion portrayed the situation to be, I must say that I'm underwhelmed by the winning argument. I don't think it makes sense to make it a rule that in a two-way lawsuit with claims flying in both directions, a party that asks for a decision on injunctive relief (grant or dissolution) of a narrower scope is entitled to a much faster decision than one asking for a broader scope if the difference in scope simply corresponds to the jury's findings. The only thing that Samsung really "won" from the jury was a verdict of non-infringement of the tablet design patent, while Apple won on a long list of counts. I can't see why its trial loss should indirectly entitle Samsung to a faster schedule. But whether one subscribes to that argument or not, the net effect is that Apple will have to be patient. Come December 6, it will get its day in court for its push for a broad injunction. Obviously, Apple wouldn't trade its trial win in for a more favorable schedule.

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