Wednesday, January 6, 2016

Apple's patent litigation against Samsung has reached the point where even fanboys disagree

With only three months to go until the fifth anniversary of Apple's first patent lawsuit against Samsung, I believe Apple should think hard about an exit strategy from that litigation. Some people in Cupertino should listen to the official recording (MP3) of yesterday's Federal Circuit hearing on the cross-appeal relating to the second California Apple v. Samsung case one more time and ask themselves the following question:

If even Circuit Judge Reyna, a glowing admirer of Apple's impact on the smartphone market (see the passage quoted at the end this post) and a long-standing champion of Apple's patent enforcement cause among Federal Circuit judges, appears to have concluded that some of Apple's patents-in-suit have major shortcomings, isn't it time to just drop those lawsuits before more and more friends, fans and fanboys will be disappointed and disenfranchised?

Or, to put it differently, isn't it simply unworthy of such a great company to engage in behavior that increasingly resembles the conduct of patent trolls who seek to extract undue leverage from weak and dubious patents?

This blog, which used to be rather sympathetic to Apple's patent enforcement efforts because the "rip-off" story appeared credible for some time, has been highlighting the weaknesses of such patents as the '647 "quick links" patent or the slide-to-unlock patent family for a couple of years. Even though things that judges say at a hearing are not the same as an actual decision, the mere fact that the Federal Circuit has expressed massive doubts about those patents already validates my skepticism.

A little less than two years ago, the trial in the second California Apple v. Samsung case was held. Just before jury deliberations began, the Federal Circuit issued an opinion in an Apple v. Motorola case, based on which I immediately suggested that "the court should drop Apple's '647 'quick links' patent from the verdict form." That didn't happen, but based on what you can hear in the recording of yesterday's hearing, it indeed would have been the appropriate consequence of the Federal Circuit's affirmance of Judge Posner's claim construction.

What's really amazing is that even Apple's lead counsel, Bill Lee, conceded at yesterday's hearing that the Federal Circuit's claim construction was narrower than the one Judge Koh's court applied. I really can't think of a judge who likes weak patents more than Judge Koh does. I've previously dubbed her the World Wildlife Fund for Apple patents, and that's pretty much the way it is.

Apple's lawyers tried hard, but as far as one can tell based on the recording, failed to persuade the Federal Circuit panel that there was an infringement case here even under the appeals court's claim construction.

However, instead of just cutting things short and saving everyone time and costs by withdrawing that patent, Apple's outside lawyers are doing just the opposite. A few hours after that hearing, they wrote a letter to Judge Koh, informing her of the fact that the Federal Circuit, after having denied an injunction rehearing in that case, also denied a motion to stay the mandate, and Apple now asks for an immediate injunction over three patents, including the '647 "quick links" patent:

"Because the '647 patent is set to expire on February 1, 2016, Apple respectfully urges the Court to issue the injunction as promptly as possible."

If this was a case where a patent was a few weeks away from expiration but the patent holder had a very legitimate infringement case, I would understand. But Apple is asking for an immediate injunction over a patent (that will expire in three-and-a-half weeks) just hours after the appeals court made clear that the Calfornia court should not have found an infringement.

Give me a break.

Wasn't it already very questionable that Apple demanded approximately 20 times the per-unit damages it previously sought from Motorola (over essentially the same software, i.e., Android)? A reasonable litigant should at least await the Federal Circuit ruling now, given that yesterday's hearing was a strong indication that Apple's case will be defeated on the merits as far as the '647 patent is concerned.

Apple's $180 million Christmas wish was based in part on patents that are not valid based on the USPTO's final (though appealed) decision on one patent and an unusually well-considered first Office action on another patent. And now Apple wants an injunction over a patent that is not even infringed under the (traditionally rather patentee-friendly) appeals court's claim construction.

Oh, and lest I forget: the Federal Circuit also appeared rather skeptical of the slide-to-unlock patent, a "sibling" of which has been held invalid by 15 (fifteen!) European judges, most of whom are even more focused on patent law than the Federal Circuit is. That patent is unimportant with a view to damages (just a couple of million dollars) and with a view to an injunction (there were all sorts of Apple devices at issue in that case and Apple only accused the oldest ones of infringement). It's still somewhat significant because it's the only patent with respect to which Apple could try to make a willfulness argument. And it's also significant in the sense that the U.S. patent litigation system as a whole would appear a bit ridiculous if its standards were so low that a claimed "invention" would be deemed patentable in the U.S. while none of the 15 European judges who ruled on its (in)validity thought this was a patentable invention (relative to the prior art).

I doubt that Judge Koh will do Apple the favor of quickly entering an injunction under the circumstances. The easiest thing for her to do is to simply (pointing to how busy the court is, and to the need for due process) take enough time to think about the injunction that the '647 patent will be history by then. This way, an injunction would just be symbolic. There would be no enforcement dispute afterwards, but if the '647 patent was involved, a dispute would be foreseeable.

Ideally, the California court should wait until the Federal Circuit has decided on the merits. That might also take care of the slide-to-unlock thing.

Meanwhile, the deadline for amicus curiae briefs in support of Samsung's Supreme Court petition regarding design patents is approaching. I predict that there will be a broadbased coalition (industry, NGOs, academics) siding with Samsung and very little support for Apple's positions in that context.

This is really a sad story. I thought Apple had very good reasons to start its Android lawsuits; it had very good reasons to sue Samsung not only over Android but also over its product designs. But over time it became clear Apple would only be able to "win" if the courts turned a blind eye to the serious validity issues of some patents, blew the scope of other patents (such as "quick links") completely out of proportion, and if Apple was furthermore awarded remedies that are not reasonable relative to the strength of those patents. Apple's lawsuits against HTC and Motorola went nowhere (against Motorola, Apple fortunately did a great defensive job with respect to standard-essential patents). Its Samsung lawsuits have yielded some results, but nothing really earth-shattering, and whatever has come out of the Apple-Samsung dispute so far is simply based on patents that are either invalid or have a rather narrow scope, on an anachronistic interpretation of design patent damages law, and a recent appellate decision that would lower the standard for injunctive relief (the Chief Judge of the Federal Circuit even wrote in her dissent that this was not even a close case but one in which Apple's injunction request should certainly have been denied).

Truth is sometimes stranger than fiction. Seriously, if someone produced a movie about patent litigation and highlighted this unbelievable discrepancy between the merits of the patents Apple is asserting against Samsung and the remedies it's seeking, people would feel that it's totally exaggerated and unrealistic. It appears farcical, but unfortunately it's true, and it will remain true until Apple puts an end to this. Apple has settled with everyone, even Ericsson, a case in which I think Apple could have made some great defensive headway that would have had a major positive impact on the situation surrounding standard-essential patents. Apple should also get out of this thing here now.

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