Last month, Apple filed a renewed (post-appeal) motion for a U.S. permanent injunction against Samsung devices infringing any or all of three multitouch software patents. A few days later, Samsung asked for permission to conduct further discovery relating to recent Apple-Samsung settlement negotiations, but Judge Koh denied the related motions and agreed with Apple that January 30 (the day on which the parties' post-trial motions relating to the recent damages retrial will be heard) should be the hearing date. As a result, Samsung had to file its opposition brief last Thursday (this post continues below the document):
In my previous post I flagged one tidbit from Samsung's brief: the representation that the Apple-Nokia patent license agreement covers the period to December 31, 2016.
I also wanted to publish Samsung's opposition brief. Samsung raises a number of reasonable points -- reasonable also in the sense that they could theoretically be outcome-determinative in light of the wiggle room that the mid-November appellate opinion formally gives Judge Lucy Koh in the Northern District of California, who originally (in December 2012) denied Apple's request for a permanent injunction.
Even though Samsung's lawyers present some of their arguments in a pretty compelling fashion (for example, the fact that the "Hauser" survey, the key piece of evidence here that shows consumers' willingness to pay premium prices for certain patented features, doesn't compare particular features to the best non-infringing alternative), entry of a permanent injunction is still the most likely outcome here. The Federal Circuit didn't want to give a direct instruction to Judge Koh that she enter an injunction on remand. Instead, it basically said that Judge Koh stopped the analysis too early, and deferred to the court of equity. But Judge Koh will look at the forest, not only the trees Samsung addresses. And the overall picture is that the Federal Circuit most likely would have rejected Apple's appeal if it had felt that, all things considered, Apple should once again be denied a permanent injunction.
There are basically two approaches between which a district judge can choose on such a remand: the lower court can focus on the opportunities it finds in the appellate opinion for reaching the same conclusion once again (just on modified grounds), or it can try hard to read the writing on the wall and do what the appeals court presumably would like to see happen ("the trend is your friend"). Having watched Judge Koh's handling of Apple v. Samsung for almost three years, my guess is that she would rather over-follow the appeals court's directions. That is, in fact, what gave rise to Apple's appeal in the first place, and now the pendulum is swinging back in the other direction because Judge Koh went too far for the Federal Circuit's taste in her December 2012 decision, which applied the Federal Circuit's "Nexus" opinion in an extremely infringer-friendly way.
Even if Samsung's lawyers probably won't be able to avoid an injunction over those three multitouch software patents, they at least want to raise certain issues with a view to the injunction motion Apple will most likely file after the trial scheduled to begin on March 31 (I believe Apple will win at least a couple of liability findings and will then push, once again, for a sales ban).
The one thing that Samsung can realistically -- and, in my opinion, definitely should -- achieve is a stay of the injunction with respect to the '915 pinch-to-zoom API patent. In connection with Apple's renewed injunction motion I also discussed the fact that the USPTO's Central Reexamination Division has rejected the patent, a decision that Apple has meanwhile appealed to the USPTO's Patent Trial and Appeal Board. While Apple might prevail on appeal to the PTAB (or on a subsequent appeal to the Federal Circuit), the current state of affairs is that the same institution that once granted the '915 patent presently believes it shouldn't have done so. One examiner granted it, another one (the one handling the reexamination) rejected it. This patent is now of very dubious validity to say the least.
In my impact assessment of Apple's injunction motion I expressed doubts that Samsung could leverage the status of the '915 reexamination in the context of a permanent injunction, which -- unlike a preliminary one -- is based on a final (even if appealable) liability finding as opposed to an assessment of probabilities of different outcomes. But Samsung has found interesting precedents from the three districts on the East Coast (not binding case law for Judge Koh, but potentially persuasive):
"Even if Apple could satisfy the causal nexus requirement here, the extent of irreparable harm with respect to the '915 patent would be particularly minimal given the Patent Examiner's decision invalidating that patent—thus further counseling against issuance of an injunction pertaining to that patent. See, e.g., Smith & Nephew, Inc. v. Interlace Med., Inc., 2013 WL 3289085, *7 (D. Mass. June 27, 2013) (even PTO's 'preliminary rejection does weaken [patentee’s] showing of irreparable harm, since [patentee] has not suffered any cognizable harm at all if its patents were improvidently granted.') MercExchange, L.L.C. v. eBay, Inc., 500 F. Supp. 2d 556, 575 n.15 (E.D. Va. 2007) (stating that, when the court considers a prospective motion in equity, it would be imprudent not to consider the ongoing reexamination' and that, where PTO has declared patent-in-suit invalid as obvious, 'this court has a legitimate reason to question whether [patentee] will suffer irreparable harm'). As discussed further below, the Patent Examiner's decision finally rejecting the '915 patent also reinforces that the balance-of-hardships and public interest-inquiries favor Samsung."
"Belden Techs., Inc. v. Superior Essex Commc’ns LP, 802 F. Supp. 2d 555, 578-79 (D. Del. 2011) (where PTO had rejected claims 'the court concludes that the harm to defendants if the injunction were to issue on invalid patents is much greater than the harm to plaintiffs should the injunction not issue at all')"
Samsung also makes a closely related argument concerning the public interest:
"The only public interest Apple identifies is the generic interest in enforcing patents. But the public has no interest in enforcing patents that the Patent Examiner has found invalid. The public interest thus weighs especially strongly against an injunction with respect to the '915 patent."
But Samsung is realistic enough to know that Judge Koh, unlike some district courts on the East Coast, might decide not to give any weight to the reexamination status of the '915 patent. Therefore, it requests, in the alternative, a stay of enforcement of any injunction with respect to the '915 patent -- which I think is perfectly appropriate. I even said in a recent post that Apple should stipulate beforehand to such a stay.
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