Apple's anti-Android/anti-Samsung patents are an endangered species in every jurisdiction in which they get challenged (and may soon be an extinct species in Europe), except for the Northern District of California, where Judge Lucy Koh has so far acted as if she was the World Wildlife Fund for Apple patents. But a tipping point may have been reached at which conservation will come to an end even in her district court.
A few days ago the United States Court of Appeals for the Federal Circuit denied Samsung's motion to stay issuance of a mandate (pending a Supreme Court petition) following a recent appellate ruling on the first California Apple v. Samsung case. As a result, proceedings are now continuing in California, where they could still be put on hold. Apple's smart and hard-working lawyers were quick to request a partial final judgment because they must have realized that time and truth are not on Apple's side: the truth is that two key patents-in-suit are going down the tubes, which takes some time if all appeals are exhausted but will probably happen anyway. If Apple isn't allowed to physically collect money (so far, Samsung has merely posted a bond) now, it may take years and the amount is more likely than not to go down (with a successful Supreme Court appeal, it could even go down to less than 10% of the original billion-dollar damages award).
Basically, Apple is now behaving (with its efforts to be allowed to collect money prematurely, just to have at least something symbolic to show for years of suing) like the citizens of Greece this summer when they tried to bring home as much cash as possible before the banks would close.
There have been situations in which I have blamed Apple's adversaries--HTC more so than Samsung, but Samsung still more so than Motorola--of stalling. However, at this stage I can't accuse Samsung of dilatory tactics for two reasons:
Two of Apple's patents-in-suit are rather unlikely to survive. This month the USPTO issued a very well-reasoned rejection of the D'677 design patent, and in December, Apple had suffered a major defeat at the next higher level, a Patent Trial and Appeal Board (PTAB), over the '915 pinch-to-zoom API patent. The D'677 patent was key from a damages point of view, and the '915 patent is the software patent in this case that Apple itself considered the most valuable one (of the three Samsung was found to infringe).
Last summer, Apple dropped its cross-appeal. As a result, there won't be an injunction. We're now merely talking about when and how much money will change hands. Given both Apple and Samsung's untold wealth, I can't see why any payment would have to be made now on a premature and dubious basis. This applies to past damages as well as the ongoing (postjudgment) royalties Apple is seeking.
Samsung's lawyers have now filed a motion for judgment as a matter of law (JMOL) holding the '915 patent invalid or, alternatively, a stay (and in that motion they've also announced their forthcoming opposition to Apple's request for a partial final judgment).
While it would simply be the correct outcome to declare the '915 patent invalid, the problem here (at least in psychological and potentially also in procedural terms) is that Judge Koh previously had a JMOL motion about that patent before her, so she would now have to disagree with herself. It's actually great if people modify their stance based on new knowledge, but none of us finds it easy to do. However, a stay should be a no-brainer under the circumstances, and it would provide some relief for a busy court. Apple is going to oppose that plan vehemently, but again, time and truth are not on Apple's side in this case. If Apple's patents were as great as its products, this here would be a different story, but they aren't.
Finally, here's Samsung's motion:
15-08-26 Samsung Motion for JMOL or Stay by Florian Mueller
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