Monday, June 10, 2013

Workarounds not mentioned once in pro-Samsung brief by Google, HTC, SAP, Rackspace, Red Hat

When a Google-led group of companies (also including, in alphabetical order, HTC, Rackspace, Red Hat and SAP) last month asked the Federal Circuit for permission to file an amicus curiae brief in support of Samsung against Apple's appeal of the denial of a multi-patent injunction against various Android-based devices, Apple opposed the request because Google is not an impartial friend of the court -- but a Samsung ally and the maker of Android, the operating system powering the accused devices. On Wednesday the Federal Circuit granted the motion against Apple's objections (Apple at least got an opportunity to draw the appeals court's attention to Google's vested interest in a certain outcome), and today the public version of the brief, which was originally filed on May 6, became available (this post continues below the document):

Google HTC SAP Rackspace Red Hat Amicus Brief Supporting Samsung Against Apple

Amici don't have to address every issue relevant to a case -- they can choose. This Google et al. brief addresses only the first one of the four transcendental issues I outlined in a recent post on this appeal: it basically argues that even if Apple was right and injunctions over patents covering smaller features of complex, multifunctional products became unavailable as a result of the "causal nexus" requirement, this would be a just outcome. And like Samsung, these amici also rely on non-patent cases in their effort to support a stringent causal nexus requirement.

One may agree or disagree with Apple and Microsoft, who oppose injunctions over standard-essential patents, but their positions are honest and logical: you can support injunctions over non-SEPs while arguing that FRAND-pledged SEPs must be licensed and not serve as a basis for injunctions. But Google takes positions the combination of which doesn't make sense: while doggedly pursuing an SEP-based injunction against Apple, Google submits an amicus brief like the one shown above, arguing that "denial of injunctive relief would not substantially impair the patentee's legitimate interests" because the right holder "can recover damages to compensate for any ongoing infringement". One can be against all patent injunctions, or maybe in favor of all of them (if one takes a radically IP-centric, antitrust-ignorant position), or in favor of non-SEP injunctions (which are thermonuclear) and against SEP injunctions. But there's no way, unless someone wants to take inconsistent positions as Google is doing here, to argue that non-SEP injunctions aren't necessary but injunctions should be available over SEPs.

Another inconsistency between Google's SEP and non-SEP positions is that in the non-SEP context it claims "holdup power would permit patent holders to capture a greater amount of money than their invention is worth". Google's Motorola attempted SEP-baed holdup against Apple and Microsoft, and failed.

I said before that amici can selectively address the issues in, or relevant to, a given case. But sometimes these choices are revealing. The anti-injunction argument made in this brief completely misses the point if one considers the possibility of working around (or "designing around", as some prefer to call it) a given patent. This is something that I've always stressed, and I sometimes felt Apple could or should stress that point even more (Samsung actually talked more about workarounds in its appellate brief than Apple did). Let me just quote from a very recent ruling written by Chief Judge Rader, Douglas Dynamics v. Buyers Products:

"If indeed Buyers had a non-infringing alternative which it could easily deliver to the market, then the balance of hardships would suggest that Buyers should halt infringement and pursue a lawful course of market conduct."

Google and its friends couldn't anticipate Douglas Dynamics when they filed their brief. But if the Federal Circuit at large adopts the position of its Chief Judge on the question of workarounds, then the persuasive impact of this brief will be minimal or even zero. In that scenario it won't matter whether Apple's asserted features are, as Samsung and its supports allege, trivial. The answer will be: "If it's trivial, then please work around it."

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