Late on Monday, a group of amici curiae ("friends of the court") asked the United States Court of Appeals for the Federal Circuit for permission to file an amicus brief in support of Samsung, opposing Apple's pursuit of injunctive relief following a multiplicity of infringement findings by a district court. The group includes
- Android maker Google (whose software is at issue in the Apple v. Samsung dispute, in addition to design-related rights and Samsung's proprietary extensions of Android, and which yesterday received a Statement of Objections from the European Commission concerning its allegedly-abusive pursuit of injunctions based on standard-essential patents),
Android device maker HTC (which settled with Apple last year but could still face injunctions if it violates the anti-clonig provision of the license agreement),
business software maker SAP (which just failed in the same appeals court to get an injunction overturned),
Linux distributor Red Hat (which also teamed up with Google on a submission to U.S. antitrust regulators concerning "patent trolls"), and
hosting company Rackspace (which has recently been quite active in campaigning against software patents and "patent trolls").
For more detail on what's at issue in this case and on the position Apple and Samsung have taken in their opening briefs, please see my most recent post on this appeal (published on Friday).
Google, HTC, SAP, Red Hat and Rackspace describe themselves as "innovative technology companies that develop and provide a variety of products and services that, like the mobile devices at issue in this appeal, incorporate a wide array of features". I could spend the rest of this post discussing in which ways these companies are innovative and in which they are not, or about Android's track record of court-established patent infringements, but in this context I just want to report on the fact that this group of companies sides with Samsung against Apple. The motion for leave to file an amicus brief goes on to say the following:
"As such, an issue presented in this appeal – whether a court may enjoin the sale of innovative and technologically complex products based on the incorporation of trivial patented features without evidence that the accused features drive sales of the products – is a matter of great concern to amici."
This misses the point. Everyone agrees -- presumably also Apple, which has to defend itself against patent lawsuits all the time -- that complex products shouldn't be banned because of the existence of one "trivial patented feature". But the real issue is whether it's reasonable to expect an infringer to either take a license (if the patent holder offers one) or to work around (or "design around") an intellectual property right. Everything else would be tantamount to a compulsory-licensing regime.
Apple's fight against a "causal nexus" requirement that presents pretty much an insurmountable hurdle for patent holders seeking injunctions against multifunctional products has drawn support from Nokia. Two months ago I already reported that Nokia asked for permission to file an amicus brief, formally in support of neither party but practically supporting Apple's strategic interests related to this appeal. Nokia doesn't always side with Apple: it supports Google against the FRAND part of Judge Posner's ruling. Meanwhile, Nokia's amicus brief, which argues that a compulsory-licensing regime would "undermin[e] traditional incentives to innovate", has been accepted by the appeals court and is publicly available:
Nokia stresses, among other things, that the Supreme Court's eBay v. MercExchange opinion clarified that injunctive relief must remain available, subject to certain criteria.
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