Friday, February 24, 2017

Samsung is now taking the second Apple v. Samsung patent case to the Supreme Court

The first Apple v. Samsung case went all the way up to the Supreme Court and has meanwhile gone all the way back to the Northern District of California to take a new look at the question of design patent damages. But the steps to the Supreme Court are like a revolving door for this huge commercial dispute: a new petition for writ of certiorari (request for Supreme Court review) is already in the making! This time around it's about the second California Apple v. Samsung case (the one that went to trial in 2014, resulting in a $119 million verdict).

Donald Chisum, the author of "Chisum on Patents," described the Federal Circuit majority's decision to overrule (in Apple's favor) a unanimous panel decision (which had been favorable to Samsung's interests) as what may turn out to be the appeals court's "most controversial decision ever." The patent law community at large was very, very surprised (to say the least). Here's another example (on Law360).

After months of not hearing or reading anything about the case except for an Apple motion in California that essentially said "let's get it over with," I looked up the Supreme Court docket in light of a deadline approaching these days and, indeed, under no. 16A823, the top U.S. court has received and granted an application for an extension of time. Samsung now has until March 29, 2017 to file its petition.

Right after the Federal Circuit decision had come down, I already outlined my thoughts on the prospects for another Apple v. Samsung Supreme Court appeal and discussed what kinds of issues might be raised in that event. In a little more than a month, we'll know what issue(s) Samsung's attorneys have decided to bring up.

I'm pretty sure that Professor Chisum's quote will appear in the petition. It's a silver bullet in this situation, where the name of the game for Samsung is to persuade the justices that a second Supreme Court review is warranted in connection with the same dispute (though it's technically a different case involving different patents and different issues). Merits are going to be less than secondary at this stage. Certworthiness in terms of one or more key legal issues and public interest (that's where amici curiae, "friends of the court," can be very helpful) is all that matters now.

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