After two days of jury deliberations, Apple and Samsung are still waiting for the verdict that will conclude their limited damages retrial in the Northern District of California. On Day 2 (Wednesday), Samsung brought an emergency motion to stay the case pending reexamination of Apple's pinch-to-zoom API '915 patent. Later that day Judge Koh discussed this matter with counsel and told Apple to respond within a day. Apple filed its opposition brief later the same day (this post continues below the document):
Long before the Wednesday emergency motion, Apple had complained about Samsung's attempts to "delay and derail" the retrial. But Samsung's stalling tactics have reached a new low in Apple's opinion:
"Samsung’s strategy to delay entry of final judgment in this case has crossed the bounds of reason: Samsung seeks to halt the damages retrial in the midst of jury deliberations."
It's really hard to see why the court shouldn't simply let the jury conclude its deliberations and render a verdict. On that basis, Judge Koh can certify a final judgment, which the parties (Samsung more so than Apple) can appeal to the Federal Circuit.
Apple's motion stresses that "[t]he reexamination proceedings on Apple's '915 patent are not final" (emphasis in original). There still is time for Apple to respond to the July 26 final Office Action and persuade the examiner to withdraw the rejection". Apple points to a passage in the USPTO communication that mentions the possibility of "other appropriate action [than an appeal] [that may be] taken to overcome all of the outstanding rejection(s)". But Samsung's motion argued that "[t]he Advisory Action is the Examiner's final word on the invalidity of the '915 patent", and its notice of the USPTO decision had said "[a]t this point, Apple's only option is to file a Notice of Appeal".
Especially the claim that a notice of appeal is now the only option was absolutely wrong. This is not merely a tactically-motivated misrepresentation of the fact, such as blowing things out of proportion. At this stage it's simply a lie to say that Apple's sole remaining option is a notice of appeal. Again, here's the relevant part of the USPTO communication Samsung filed with the court yesterday (red underlining added; click on the image to enlarge):
When Judge Koh outlined the criteria for a stay (in the context of a stay that would have been ordered before the retrial even started), the absolute requirement was that Apple would be left with no other option but a notice of appeal. Based on the examiner's communication to Apple, it's rather likely that an appeal will be necessary in the end, but the notice also said that the response period is extended to five months since the late-July "final" Office action. In other words, it will take about another month to find out whether Apple really needs to file an appeal.
Samsung's lawyers have a growing credibility problem, also in light of the "Patentgate" scandal. Lawyers have the right and even the obligation to portray the facts in the light most favorable to their clients' interests, but what Samsung has done here was not just an attempt to mislead: they said something that is absolutely not true. (It's likely to be true in about a month from now, but as we speak, it's not true at all.)
I didn't double-check whether Samsung's lawyers told the truth about the status of the proceedings. I usually do try to verify such claims, but when I read the claim that "Apple's only option is to file a Notice of Appeal", I assumed that if Samsung's lawyers say "only option" they really mean "only option". What do they hope to accomplish by saying "only option" when other options still exist for another month? They must have known that Apple was going to clarify this. Are they just afraid of the forthcoming damages verdict and desperately looking for ways to discredit the verdict in public before it is even rendered?
For more than two years I had the greatest respect for the work Samsung's lawyers were doing on this case. They have a weak case, but I thought they were doing a great job and giving Apple a run for the money under the circumstances. Even last year's jury verdict didn't change that opinion of mine. Some other commentators thought Samsung's lawyers made tactical mistakes; I disagreed. In the aftermath of the trial, the "rounded corners" propaganda had to be debunked, but it was just a PR stunt, not nearly as bad as an untruthful representation to a court (there can be sanctions for lying to a court under Rule 11, but not for a misleading press release). Then the "Patentgate" affair came to light last month. I was thoroughly disappointed, and I felt some of their defensive arguments were a stretch to say the least. But after yesterday's untruths concerning the status of the reexamination proceedings, I now know that they can no longer be trusted even on binary facts such as whether a party has only one option left.
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