Monday, July 15, 2013

U.S. appeals court schedules major Apple-Samsung showdown over patent injunction for August 9

The United States Court of Appeals for the Federal Circuit has just given notice of a scheduling decision. Apple's appeal of Judge Koh's December 2012 denial of a permanent injunction against various Samsung products (over half a dozen patents, plus trade dress) will be heard on August 9, 2013(three days after the appellate hearing on the Microsoft-Google cross-appeal of the ITC ruling on Microsoft's complaint against Google's Motorola Mobility).

For formal reasons today's notice mentions that "the panel of judges that will decide the appeal, upon further consideration, may yet disallow oral argument", but this would require a unanimous finding that the appeal is frivolous, redundant or can be decided based on the record, none of which is realistically going to happen in this high-profile case. So come August 9, WilmerHale's Bill Lee will argue Apple's case for an injunction and Quinn Emanuel's Kathleen Sullivan will defend Judge Koh's decision.

What could very well happen is a second hearing in front of the full court ("en banc"). In January Apple already asked for the full court's immediate attention in order to overturn a panel's October 2012 reversal of a preliminary injunction (in a different, subsequent case) against the Galaxy Nexus smartphone for lack of a showing of a "causal nexus" (i.e., granular evidence that consumers buy an accused device specifically because of a patented feature). Apple's request was denied, but not without an outline of a roadmap that could lead to an en banc hearing:

"The appeal [of the December 2012 denial of a permanent injunction] will be heard by a panel [i.e., a subset of the full bench]; a party may argue to the panel the need to overrule precedent, or other basis for hearing en banc; and the panel, if so convinced, will request a poll on rehearing en banc."

Apple argues that Judge Koh's decision can be reversed by a panel, but this argument is mostly based on the claim that a permanent injunction requires a different equitable analysis than a preliminary injunction. If the panel doesn't agree that the "causal nexus" requirement should apply only to preliminary (pre-trial) and not permanent (post-trial) injunctions, then it may decide to proposal a full-court review of the matter, which would mean a second hearing before a final Federal Circuit ruling comes down.

In May the Federal Circuit -- a panel led by the court's Chief Judge Randall Rader -- reversed a denial of a permanent patent injunction in a snowplow case (Douglas Dynamics, LLC v. Buyers Products Company), and while there are some obvious differences between the case, there are also some rather interesting parallels and large parts of the pro-injunction reasoning bode well for Apple's continued pursuit of a permanent injunction against Samsung.

As to the issues in this appeal let me refer you to my posts on the parties' briefs. I discussed the key issues at great length in my post on Samsung's brief. One of them that I consider extremely important is what bearing the availability of workarounds should have on the equitable analysis (that was also key in the aforementioned snowplow case). I also blogged about Apple's opening brief and Apple's reply brief, and about a pro-Apple amicus brief by Nokia and a pro-Samsung amicus brief by Google, HTC, SAP, Red Hat, and Rackspace.

In terms of remedies, the situation between Apple and Samsung in the U.S. is upside down. While a jury found Samsung in August 2012 to infringe half a dozen Apple patents (plus trade dress), all of them non-standard-essential and unencumbered by FRAND licensing pledges, and Samsung failed to persuade Judge Koh to overrule the jury on these liability findings, Apple holds no injunction in its hand and hasn't been able to collect even one cent of damages so far -- by contrast, Samsung prevailed on one FRAND-pledged standard-essential patent that an Administrative Law Judge of the United States International Trade Commission (USITC, or just ITC) had not found violated, and the import ban ordered by the ITC in early June will, absent a Presidential veto or a stay, enter into force in three weeks -- in fact, four days before the Federal Circuit hearing on Apple's appeal of Judge Koh's denial of an injunction. There's an undeniable asymmetry here, and it's not only due to the fact that Samsung won the race to the ITC and that an import ban is the ITC's standard remedy.

August 9 will be the most important Apple v. Samsung event in a long time -- in fact, since last summer's jury trial, and it's arguably even more important because whatever Apple achieved at last year's trial is meaningless without useful, forceful remedies.

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