On Saturday I reported that Apple and Samsung disagreed not only on the relevance of the Apple-HTC license agreement to the injunctive-relief analysis in their case but also on how to express their related views to the court. Apple wanted a pre-hearing exchange of short pleadings while Samsung just wanted to go into the hearing and discuss the topic there. This is a quick follow-up to that post.
Judge Lucy Koh, the federal judge presiding over the parties' two California lawsuits, has sided with Samsung on the course of action, holding that "the relevance of the agreement can be adequately addressed at the December 6, 2012 hearing, without further briefing". As I stated before, I don't think Samsung's related claims and arguments will surprise Apple on Thursday. There's only one way in which Samsung can leverage the Apple-HTC deal: by claiming that Apple's willingness to license the relevant patents shows that monetary compensation is sufficient to make Apple whole, rendering injunctive relief unnecessary. In a formal sense this argument shouldn't have huge weight because patents are, by definition, exclusionary rights, but Samsung probably hopes that this will help persuade Judge Koh to deny an injunction, or only grant a narrow one.
Contrary to popular misbelief, Judge Koh is not an injunction-happy judge. Most people only see the two injunctions she granted to Apple, but there's little awareness for the fact that she granted Apple injunctive relief on only a minority of the infringement claims on which she thought Apple would ultimately prevail. For example, the preliminary injunction against the Galaxy Nexus smartphone was based on only one (Siri-style) patent, but Apple had demonstrated a likelihood of success on the merits with respect to three more patents. There's far more attention to the fact that an injunction is granted (with many people believing that products will disappear from shelves, which is not the case if a patent can be worked around) than to a partial denial. This is what I call the goalkeeper's dilemma: a goalie may save many shots during a ballgame, but most people will see a three-minute summary, which will mostly (if not entirely) consist of the goals that were conceded. The injunctions she granted before were preliminary ones, and the post-trial situation is different in some respects because there's clarity (after the court rules on the parties' post-trial motions to overrule the jury) about the merits. I wouldn't extrapolate her past track record in the preliminary-injunction context to the permanent-injunction questions that will be discussed on Thursday, but it's a fact that she has so far been rather hesitant to order injunctive relief.
The Monday order does not take a position on how much weight will be given to the Apple-HTC agreement. It merely states that "the license agreement may be relevant to the permanent injunction analysis". It "may be". When Magistrate Judge Grewal granted Samsung's motion to obtain the agreement, he expressed skepticism of its relevance.
The order also says that there are no compelling reasons under Ninth Circuit case law to seal any parts of th e agreement other than "the payment and royalty terms". Most importantly, "the list of patents covered by the agreement" will have to be disclosed. Accordingly, a paragraph in a recent Samsung filing that makes reference to the licensed patents will also have to be filed publicly.
The parties have on ongoing appeal of some orders of this kind to the Federal Circuit, and have in some cases convinced the court to keep certain material seal until a final ruling on the sealing orders comes down, arguing that the general public won't suffer much harm if it finds out a few years later, but if anything is disclosed that should be kept confidential, there's no way to turn it into a secret again. I don't know if anyone will now try to bring some last-minute emergency motions, with the hearing being only two days away.
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