Last week Samsung requested an extension of time for its answer to Apple's post-appeal renewed motion for a permanent injunction and permission to conduct discovery relating to more recent settlement talks between the parties. Apple opposed this, and Judge Lucy Koh, the federal judge presiding over two Apple v. Samsung cases in the Northern District of California, issued an order late on Tuesday by local time that confirms the injunction hearing will be held on January 30, the date proposed by Apple, and Samsung won't get to depose an Apple witnesses on settlement talks:
For an asessment of the potential impact of the injunction sought by Apple, please check out my related post.
I felt that Samsung's discovery request wasn't unreasonable. While settlement talks enjoy some degree of protection under Federal Rule of Evidence 408, previous negotiations between the parties have also been considered by the court in this litigation. Samsung had pointed Judge Koh to the Federal Circuit's reference to differences between licenses Apple extended to other parties in the past and the "current situation". Judge Koh appears to think that Samsung overstated what the Federal Circuit said:
"Although the above-quoted passage makes clear that the Federal Circuit expects this Court on remand to analyze whether the circumstances surrounding Apple's prior licenses or offers to license shed light on whether legal relief would adequately compensate Apple for Samsung's infringement of the patents-in-suit, the Circuit's opinion simply does not address the propriety of allowing additional discovery into ongoing, Court-encouraged settlement discussions between the parties."
The above is correct: the appellate opinion did not say what kind of discovery would have to be conducted on remand. Neither did the appeals court remand the case with an instruction to immediately enter a permament injunction. Basically, the Federal Circuit felt that Judge Koh's analysis of Apple's entitlement to an injunction had prematurely arrived at a negative conclusion, and it wants the district court to pick up the thread where it left off last time -- back in 2012, that is. That's why I didn't think it was necessarily unreasonable for Samsung to request additional discovery, but the following passage in Judge Koh's order suggests that Apple hasn't made any licensing offers to Samsung of the kind that really could be outcome-determinative in the injunction context:
"More generally, Samsung has failed to establish that its need for discovery of Apple's licensing discussions with Samsung justifies further delay in resolving Apple's request for permanent injunctive relief. Samsung, as a party to its settlement discussions with Apple, surely is already aware of any 'key' concessions Apple made to Samsung during those discussions. Nothing in the record, including Samsung's motion, suggests that further discovery would be fruitful."
If Samsung's lawyers weren't able to convince the court of Apple having made major concessions over the course of the last year, then I guess Apple's position hasn't really changed that much. And if that is so, then a deposition of an Apple witness probably wouldn't bring to light, or shed light on, any facts that have a bearing on Apple's entitlement to injunctive relief.
Samsung now has to file its opposition to Apple's renewed motion for an injunction on Thursday (January 9). Apple may reply within a week. The hearing will go forward on January 30. A hearing had previously been scheduled for that day to discuss the parties' post-trial motions following the recent retrial. The question of injunctive relief will be another -- and strategically even more important -- item on the agenda for that hearing.
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