By sharply disagreeing with the majority of the panel ("This is not a close case."), Federal Circuit Chief Judge Sharon Prost practically invited Samsung to file a petition for a rehearing on Apple's injunction appeal. Samsung indeed filed the petition and received some impressive support from industry, NGOs, and academia. I actually thought a rehearing en banc (full-court review) was fairly likely to be granted, but no: today the notoriously patentee-friendly Federal Circuit merely modified its opinion slightly and denied a rehearing en banc.
The modification now establishes the following rule:
"Apple did [...] show that 'a patented feature is one of several features that cause consumers to make their purchasing decisions.' [...] We conclude that this factor weighs in favor of granting Apple's injunction."
The Federal Circuit has withdrawn the original decision and replaced it with the modified one (which also includes an amended dissent). Here's how Chief Judge Prost criticizes this modification:
"Perhaps recognizing its error, the majority reissued its opinion in this case to remove the implication that even an insignificant connection might be enough to satisfy the causal nexus requirement. While this change is a more accurate reflection of our law, it does not obviate the central problem with the majority's conclusion in this case. As we stated in Apple III, '[t]he question becomes one of degree, to be evaluated by the district court.' [...] Here, the district court weighed the evidence and found it lacking."
The amazing part here is "even an insignificant connection." This is just so inconsistent (of the panel majority, not of Chief Judge Prost) with the Supreme Court's eBay v. MercExchange ruling. Just like Chief Judge Prost's original dissent invited Samsung to request a rehearing, today's modified opinion--especially with the modified dissent--is almost a cert petition (request for Supreme Court review) in and of itself.
Just the day before yesterday, Samsung filed a petition for writ of certiorari in connection with design patents (on a couple of closely related issues on which Chief Judge Prost agrees with Apple, while she still believes Apple simply has no case for an injunction). Could today's denial of a rehearing lead to the next cert petition? I don't know what Samsung plans to do, but I hope that it will give it a try.
I don't think there's been a similarly splendid opportunity for the Supreme Court to provide some clarifications again on patent injunctions since eBay v. MercExchange. One might even argue that the Supreme Court's great work on eBay would have been in vain if the Federal Circuit's Apple v. Samsung ruling was allowed to stand.
Presumably it's not an easy decision for Samsung to ask the Supreme Court for help twice in a short time frame and in connection with the same dispute (though these are two different cases, one of which was filed about a year before the other).
The organizations and individuals who supported Samsung's petition for a rehearing with amicus curiae briefs would likely be interested in a cert petition, given the enormous importance of the issue. And at that stage, some others might also be prepared to chime in.
The first informal amicus curiae brief in support of a petition for writ of certiorari already exists: Chief Judge Prost's dissent.
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