Tuesday, October 16, 2012

ITC judge postpones preliminary Apple-Samsung import ban ruling by 6 days to October 25

In a decision made yesterday that just entered the public record today, Administrative Law Judge Thomas B. Pender extended the target date for the investigation of Apple's ITC complaint against Samsung, which was filed in July 2011, by six days from October 19, 2012 (this week's Friday) to October 25, 2012 (next week's Thursday). The target date for the final ruling is four months after the ALJ's initial determination (i.e., February 25, 2013).

The reason is simply Judge Pender's overall caseload. His other investigations include, among others, two cases in which Apple is the respondent (one complaint was brought by HTC, another by its affiliate VIA Technologies).

Apple streamlined its Samsung ITC case in March, dropping one entire patent and 15 claims from other patents-in-suit. But it's still a pretty big case by ITC post-hearing standards.

In July, Judge Pender had already pushed back the target date for this investigation by two weeks.

While Apple's first federal lawsuit against Samsung has recently received much more attention than this ITC investigation (due to a spectacular trial and a billion-dollar verdict), it's quite difficult to obtain injunctive relief in federal court, a fact that makes the ITC, which can impose import bans on IP-infringing products (but cannot award damages) a strategically important forum. Last week, the United States Court of Appeals for the Federal Circuit reversed a preliminary injunction Apple had won against the Samsung Galaxy Nexus smartphone (co-developed by Google) as a first result of its second California lawsuit against the Korean rival. The decision was primarily based on insufficient proof of irreparable harm. From a case-specific point of view, the fact that the Federal Circuit doubts that Apple can prevail on its infringement claim is more important, but with a view to other patents pending in federal court, the heightened standard for proof of irreparable harm (which PatentlyO explains very well) is a more fundamental issue. Whether the August 24 verdict will be followed by a permanent injunction (and whether such an injunction will be enforceable or stayed) is unclear and won't be answered until after a hearing scheduled for December 6. I believe Apple will win an injunction, but it probably won't relate to all of the patents found infringed, and it may be stayed for the duration of an appeal. In that case, Apple might actually get more near-term leverage out of this ITC investigation (if it wins an import ban) than the federal lawsuit.

Samsung actually won the race to the ITC against Apple last year, but a preliminary ruling announced a month ago recommended the wholesale dismissal of its complaint. Samsung and the Office of Unfair Import Investigations ("ITC staff") petitioned for a review. The petitions and the responses they drew have not yet been made available to the public, but the initial determination was recently published and on that basis I commented on Samsung's prospects in the further process.

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