The week before last, Samsung filed a petition for an en banc rehearing (full-court review) of summary affirmance of a partial final judgment that would allow Apple to collect roughly half a billion dollars over a set of patents, the most valuable software patent of which has meanwhile been held invalid by the United States Patent and Trademark Office (the Central Reexamination Division as well as a Patent Trial and Appeal Board). On Tuesday, the Federal Circuit invited Apple to file a response on or before November 13, 2015, but Apple didn't want to wait nearly that long: it filed its opposition the next day, Wednesday. (Obviously, Apple's lawyers were able to already prepare for this as soon as they saw Samsung's filing on October 19, so I doubt anyone had to work for 24 hours without sleep.)
Here's Apple's opposition filing (this post continues below the document):
By filing on the first day of an 11-day deadline, Apple demonstrates once again that it is very serious about collecting damages from Samsung at the earliest opportunity. Of course, Apple wants this to look like a case in which a totally legit right holder should finally, after years of litigation, get paid. Apple is legit, but that is not the case for all of its patents-in-suit (in Europe, not even one Apple patent-in-suit has been upheld so far, so at least in Europe, Apple's lawsuits were not legit based on what we know today).
Apple portrays Samsung as a defendant employing stalling tactics. For example, a footnote of the above filing says the following:
"Consistent with its strategy of delay, Samsung sought and was granted an extension of 32 days in which to file its petition for certiorari."
That footnote refers to Samsung's previously-announced Supreme Court petition over design patent damages. The Chief Justice gave Samsung until December 14 (instead of November 11) to file that petition for writ of certiorari. There is, however, nothing unusual about that extension. I generally suspect that companies request extensions for their cert petitions mostly because it gives them more time for mobilization of amici curiae, while they could easily do their own filings on schedule, and that may very well be the case here. But a 32-day extension of a 90-day filing deadline doesn't really make a huge difference in the greater scheme of things. Stalling is something else to me.
Apple's opposition filing says Samsung is wrong on the law, and portrays Samsung's argument as merely policy-based. Once again, Apple does not argue policy in this context. It knows that from a pure policy perspective, it has a losing case: a patent that shouldn't have been granted in the first place should not entitle anyone to a damages award, even if the notoriously patentee-friendly Federal Circuit didn't hold it invalid. The patent had originally been granted by the USPTO, and the USPTO itself has corrected that mistake.
As for stalling, Apple is certainly not doing anything to accelerate the reexamination-related proceedings. It has made clear in various filings over the years that it would always exhaust all appeals to defend its patents even after multiple decisions holding them invalid. But that's what it's entitled to. So I don't see a reason why Apple could accuse Samsung of stalling or the other way round.
The real issue here is whether Apple is jumping the gun. It may appear counterintuitive to say that someone who wants to collect in 2015 money that had already been awarded by a jury in 2012 is jumping the gun. But the criterion is not how many years patent litigation takes, or whose fault it is (for example, a retrial in this first Apple-Samsung case would never have been necessary if Apple had made some different decisions in the build-up to the 2012 trial). The real issue here is precisely the one Law360 has raised in a recent headline:
Damages For A Canceled Patent?
The answer to that question should clearly be no.
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