Tuesday, January 19, 2016

Apple finally obtains U.S. sales ban against certain features in Samsung phones, but it's useless

Last month, the United States Court of Appeals for the Federal Circuit denied Samsung's petition for an injunction rehearing relating to the second Apple v. Samsung case in the Northern District of California. But earlier this month the appeals court indicated that the underlying ruling on the merits had serious issues, with two patents being likely invalid and the relatively most important one of them, the '647 "quick links" patent, not being infringed under the appropriate claim construction. That wasn't just my interpretation: Law.com understood the judges' statements the same way.

On remand, Apple wanted an injunction that would enter into force immediately as opposed to after a 30-day "sunset period," especially since the '647 patent is set to expire on February 1. However, Judge Koh has now (in her order entering a permanent injunction) rejected Apple's attempt to modify the language of the injunction on remand. Therefore, the '647 patent is--apart from the claim construction issue I mentioned before--now practically irrelevant from an injunction point of view.

The '721 slide-to-unlock patent, whose European sibling has already been held invalid by 15 judges, is irrelevant not only because it will likely be held invalid but also because it covers only certain graphical variants of the slide-to-unlock mechanism, but not the slide-to-unlock functionality as a whole. In fact, even Apple did not claim that various Samsung devices at issue in the spring 2014 trial had infringed the patent. The injunction only refers to "the slide-to-unlock feature accused at trial as implemented in Samsung's Admire, Galaxy Nexus, and Stratosphere products," but not to the implementation found in other products at issue in the same litigation, such as the Galaxy Note, Note II, S II and S III products. In other words: the products accused in the 2014 trial were pretty old from today's perspective (where the current Galaxy is the S 6), but even the less old ones of those weren't even accused of infringing the slide-to-unlock patent. So Samsung can still provide the functionality by simply avoiding the implementation it used in its oldest products. If the patent is indeed held invalid, then Samsung can also use the older implementations (but it presumably won't even be interested in that).

The third injunction patent, the '172 autocorrect patent, is the one I have paid the least attention to so far because I felt that the parties didn't view that one as important. Samsung has claimed to have workarounds for all three injunction patents. What I don't know is whether Apple agrees with respect to the '172 patent. If it doesn't, then we may soon see an enforcement dispute. However, that patent is also likely invalid (not only in the preliminary opinion the Federal Circuit judges indicated at this month's appellate hearing but also in the opinion of the USPTO's Central Reexamination Division).

Some of the reasons for which a majority of the Federal Circuit panel had determined that Apple was entitled to an injunction initially appeared so outrageous to me that I hoped Samsung would take this matter to the Supreme Court. But in practical terms, I guess it wouldn't make (or have made) sense for Samsung to ask the top U.S. court to take a look at this matter while Samsung is trying to get the Supreme Court interested in a couple of design patent issues. It's not that the issues aren't important; they definitely are. But in the practical context of the Apple-Samsung patent dispute, this injunction doesn't matter. Samsung or anyone else could still try to take such questions to the Supreme Court in some future case in which there are would be actual business implications.

What does this injunction mean for Apple?

  • Cupertino doesn't really get leverage from it with a view to a settlement with Samsung.

  • It is, however, a significant accomplishment for Apple's in-house and outside counsel. They had been fighting for an injunction like this for several years. They had to deal with multiple setbacks. But ultimately they got an injunction (albeit one without business implications) over a set of features allegedly found in highly multifunctional devices. If Apple's lawyers had a Ben Carson approach to their own achievements (which they certainly don't), they could put that injunction on a wall because it really is a major achievement from a "persistent litigation" perspective. Alternatively, one could print a poster for lawyers that shows this injunction and says: "No one is ever beaten unless he gives up the fight."

  • Anyone considering infringing any of Apple's patents in the future now knows that Apple may obtain an injunction even if the patents cover only limited aspects of small features of highly multi-functional products. Whether the Supreme Court would uphold such a decision is another question, but it's hard to even persuade the Supreme Court to hear a case.

So the injunction isn't going to have any direct impact, but at a meta-level it does have some relevance.

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