Friday, February 19, 2016

Samsung to SCOTUS: 'The law of the smartphone cannot follow reflexively from the law of the spoon.'

The SCOTUSblog has published Samsung's reply brief in support of its petition for writ of certiorari (request for Supreme Court review) in Apple's design patents case. You can find Samsung's filing here.

Two weeks ago, Apple told the top U.S. court that it should not hear the case since it was "legally unexceptional." Apple accurately pointed to the fact that the claim construction-related part of Samsung's petition has far less support than the part concerning damages (disgorgement of unapportioned infringer's profits), but other than that, Apple's opposition filing simply couldn't downplay the importance of the issue in question. Right at the start of its reply brief, Samsung points to the "contrary [to Apple's position] view of nine high-technology companies, thirty-seven intellectual property professors, three groups representing minority and rural communities, two public interest organizations, a high-tech industry organization, and a small company that have filed amicus briefs in support of the petition." Certiorari should not be a campaigning contest, but in this case, with even some of Samsung's fiercest competitors supporting its position, there is no denying that a high quantity, quality and diversity of amici curiae would like the Supreme Court to review the Federal Circuit's decision.

The sentence I quoted in the headline appears at the end of the introductory section, just where Samsung makes the case that after more than 120 years it's time for the Supreme Court to take a look at design patents again.

Samsung's lawyers accuse their colleagues working for Apple of "rhetorical excess" because they "repeatedly incant[ed] broad, vague design concepts" such as "the iPhone's innovative look" rather than properly portray the narrow scope of the three design patents-in-suit. This is a common pattern in Apple v. Samsung, also in connection with software patents. Apple points to how its products revolutionized the market, but that doesn't mean that its patents rock. Much to the contrary, the most valuable software patent from the first Apple v. Samsung case has been held invalid by the USPTO, one key iPhone design patent has been rejected (in a first Office action after two years of consideration), and the Federal Circuit indicated at a recent hearing that Apple's patents at issue in the second California case were no good.

In connection with Apple not addressing the real claim construction issue (the jury instructions on infringement), Samsung's reply brief says: "That is Hamlet without the Prince." In a way, that saying also applies to the fact that Apple's patents-in-suit have such massive validity problems. And not only Apple's patents: the patents others assert against Apple don't appear to be significantly better. Apple and Samsung are the two top utilizers of the USPTO's new post-grant review procedures. It's really unfortunate that Apple advocates bad law, and bad interpretations of the law, instead of pushing for serious patent reform. I agree with Mark Cuban that Apple deserves a standing ovation for fighting the good fight with respect to encryption, but Apple has so far been fighting the opposite of the good fight with respect to patent quality, patent-eligible subject matter, and patent litigation rules (the latter with the exception of the UPC issue in Europe). Mark Cuban is indeed fighting the good fight in that regard.

I just don't understand why Apple takes a position on design patents that pretty much every other company in the industry disagrees with. Those who disagree with Apple can't all be habitual infringers of intellectual property rights.

The final section of Samsung's petition stresses the "enormous national importance" of the petition. This sounds to me like "this should be reviewed, but at the very, very, very least there should be a call for views of the Solicitor General (CVSG)." Or maybe I tend to read too much between the lines.

While I'm in the middle of tea-leaf reading, I'd like to also think about what the passing of Justice Antonin Scalia means for this particular case. This is not about politics (such as the question of whether the current president or his successor should replace him). Suffice it to say that my political positions are closer to his than those of the most liberal justices, and that's why I wouldn't want to suggest that conservative judges would be more likely to defend unreasonable outcomes such as the damages award in this Apple v. Samsung case. Nor do I mean to suggest that a conservative judge couldn't agree with Samsung on this matter: there are arguments and theories (such as the definition of "article of manufacture") that don't require anyone to be a "progressive" in order to side with Samsung, and conservatism and common sense do mix when applied by smart people. That said, a textualist and originalist like Justice Scalia would have been harder for Samsung to convince that the law of the smartphone should not follow from the law of the spoon, if the law of the spoon is technically still the law of the land.

Samsung's petition is on the agenda for the Supreme Court's March 4 conference. On the following Monday (March 7) we will then know what has been decided (or whether the decision has been postponed).

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