Tuesday, October 15, 2013

Apple seeks to broaden U.S. import ban against Samsung through Federal Circuit appeal

The import ban Apple won in August against Samsung's Android-based devices infringing certain patents has just entered into force, and meanwhile Apple is trying to broaden its victory. I just found out (because I spotted a filing made by an ITC lawyer today despite the government shutdown) that Apple appealed, on Wednesday (October 9, 2013), the unfavorable parts of the final ITC ruling on its complaint against Samsung. Here's the notice of appeal (this post continues below the document):

13-10-09 Apple Notice of Appeal of Unfavorable Parts of ITC Ruling by Florian Mueller

For the time being, Apple reserves the right to appeal any or all unfavorable parts of the ITC ruling. This could theoretically result in an import ban over up to three more patents, a reversal of the ITC's decision to clear certain workarounds, and even with respect to the patents on which Apple prevailed, a modified claim construction could result in a technically broader ban. Presumably Apple will pick two or three strategic priorities for its appeal. For example, I doubt that it will pursue the enforcement of a design patent that can be worked around easily and is no longer infringed by Samsung's newer devices.

It's a given that Samsung will also appeal, and it will probably do so in a matter of weeks. It just had to await the end of the Presidential review period since a Presidential veto, however unlikely in this case, would have overruled the ITC and thereby have obviated the need for an appeal, which is what happened with respect to the ruling on Samsung's complaint against Apple. In connection with its offensive case, Apple didn't have to wait -- and actually faced a deadline last week for its appeal -- because the ITC's dismissal of parts of Apple's complaint wasn't subject to the review.

In these disputes between major players, unfavorable ITC rulings -- and unfavorable parts of ITC rulings -- are routinely appealed. A couple of months ago, Samsung appealed the ITC's dismissal of large parts of its complaint against Apple. It can't appeal the Presidential veto, but it had also asserted some non-standard-essential patents that the ITC just didn't find violated by Apple.

Apple succeeded with its appeal of the ITC's dismissal of its complaint against Google's Motorola Mobility. Google asked the appeals court for a rehearing. If that one isn't granted, the case will be remanded shortly to the U.S. trade agency.

Microsoft also won a reversal and remand of an unfavorable part of an ITC ruling on its complaint against Motorola Mobility. The relevant patent will expire shortly, but the appellate opinion will help Microsoft as it pursues damages in district court.

In the major smartphone patent disputes that I watch, the track record is so far that the Federal Circuit has sided with appealing complainants on three patents (two Apple patents, one Microsoft patent). The number of cases decided is too small to be a representative statistical sample, but the Federal Circuit does appear to be, in general, more patentee-friendly than the ITC.

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