Thursday, March 16, 2017

Samsung files petition for Supreme Court review of 2nd Apple case weeks ahead of deadline

Stalling is something else: even though the Chief Justice of the United States had granted Samsung an extension until March 29 for a petition for writ of certiorari (request for Supreme Court review) relating to the second California Apple v. Samsung case , it made its filing on March 10, almost three weeks ahead of the deadline:

17-03-10 Samsung Cert Petition 2nd Apple Case by Florian Mueller on Scribd

Timing is often an interesting indication of a party's priorities. Over these past seven years of Apple v. Android lawsuits (it all started with HTC in March 2010), Android companies--HTC more than anyone else--have often shown the behavior of stallers, at least when they were (as Samsung is here) on the defending end of a litigation (obviously not when they were asserting standard-essential patents themselves). Even parties that don't intend to stall in the slightest (such as Oracle when enforcing its copyrights against Google) typically wait until the end of a filing deadline. It provides them with an opportunity to wait for further relevant developments (case law, public statements by key persons and entities, etc.). So I really am surprised here. Further remedies-related proceedings in that case are ongoing in district court, and a case management conference has just been postponed to next month. With a view to that conference, the Supreme Court is unlikely to make any decision either way in the meantime.

Maybe Samsung believes Apple is going to bring a motion for contempt in connection with an injunction and believes that a more advanced state of its Supreme Court petition will be helpful when seeking stays. It could also be the opposite: with the most important one of the patents-in-suit ('647, often called "quick links") having expired, Samsung might not fear anything and, instead, be pursuing this Supreme Court appeal mostly because of the fundamental principles at stake: overarching issues that affect Samsung in other cases, and not just Samsung, but even Apple would benefit from some of Samsung's proposed statutory interpretations here whenever and wherever its shoe is on the other foot.

The petition as a whole does look very principled. I've never seen a litigant of this nature and stature--no matter which party--who would have managed to be 100% consistent and principled, but of all the motions, petitions and other procedural steps taken by Android companies defending against Apple's (or, in other cases, Microsoft's or Oracle's) patent infringement assertions, I really can't remember a more principled initiative. Obviously, a petitioner's intentions aren't considered by the Supreme Court when deciding on certworthiness, but while the Supreme Court will just focus on the questions presented and their implications, I've been following the entire Apple v. Samsung dispute for almost six years, so I am trying to understand what the parties are trying to achieve. Their last filing with Judge Koh in San Jose said there was no progress regarding a settlement. But neither party has brought a new case against the other in years; instead, various pending lawsuits were withdrawn, with only two U.S. district court cases still awaiting final resolution.

What's ambitious about Samsung's petition is that it raises three questions for review, covering the big three patent litigation questions:

  • validity (here, obviousness),

  • remedies (here, injunctive relief, which is always a more important issue than damages unless damages would really be devastating), and

  • infringement (here, whether all elements of the relevant "quick links" claim were infringed).

If the Supreme Court granted all three, it would be the most comprehensive patent case ever before the top U.S. court, and the implications of a decision could, collectively, go beyond Alice. How did Samsung's petitions fare in the past? The one regarding design patents was a slam dunk. I believed in it 100% from the start, at least in the "article of manufacture" theory, with respect to which cert was granted while a different theory wasn't evaluated. Last year, Samsung brought a little-noticed (I, too, had failed to notice before it was "game over") injunction-related petition that went nowhere, maybe because it wasn't deemed ripe for review. But when evaluating Samsung's track record with cert petitions involving Apple, "1 out of 3" would be the wrong conclusion since one has to weight the importance of the issues and the fact that Samsung only needed to prevail on one of its design patent damages theories, which it did except that there still is some uncertainty as to what the ultimate outcome would be.

The three questions raised have unique strengths-weaknesses profiles from a certworthiness point of view (just talking about certworthiness, not merits):

  • The injunction part is where the petition says something that may get the Supreme Court, especially justices who either were involved with the famous eBay v. MercExchange appeal or care about the related principles anyway, very interested. Samsung argues that the Federal Circuit would basically (and this is my choice of words) gut eBay. I bet Apple will argue (as it did in the past) that a "causal nexus" between infringement and irreparable harm is none of the four eBay factors, while Samsung argues that it is needed. Justice Kennedy's eBay concurrence is nowadays, by far and away, the most influential concurrence in a patent case, and what he wrote in 2006 is probably the closest authority to its own position that Samsung could point to. But the strongest "argument" for getting the Supreme Court interested (which has nothing to do with the merits) is cited at the bottom of page 2 and the top of page 3 of Samsung's petition:

    "As to the injunction decision, its author stated at oral argument, 'I think eBay was wrongly decided .... I think patentees should get injunctions.'"

    The decision's author is Circuit Judge Moore. That statement might persuade the Supreme Court that this case is indeed about eBay reloaded, 11 years after. Samsung also quotes from Chief Judge Prost's dissent, which is quite persuasive, too. What makes Judge Moore's statement so powerful is that even a Supreme Court Justice who doesn't necessarily believe a reasonably strict "causal nexus" requirement is dictated by eBay (or even someone who disagrees with eBay altogether) might find that attitude so dismissive of the highest U.S. court's decision that the Supreme Court would want to take a look. Samsung's cert question quote the two words of the Federal Circuit's majority opinion that sound most eBay-incompatible: "some connection" (between an infringing feature and asserted irreparable harm)

  • As far as the merits are concerned, Samsung's petition exudes maximum confidence with respect to the infringement-of-all-claim-elements part: they say that even if the Supreme Court didn't want to hear this case, the "quick links" infringement judgement "should be summarily reversed or vacated."

    This is the part that would be economically most impactful (about 80% of the $120 million verdict at issue), yet Samsung raised it only as the last of three cert questions. Samsung portrays its position here as what one might call a "no-brainer" that won't be difficult or time-consuming to decide.

    As a software developer, the problem I see with the way the Federal Circuit interpreted the patent here against a previous claim construction is that there's a huge number of client-server software patents out there and if (maybe not all, but still a number of) client-server patents could also be asserted successfully against single pieces of software (here, the client side alone), it would expose to developers to far greater risks. If I were in Apple's shoes, I would probably place particular emphasis on my resistance to this part of the petition because, even if Samsung succeeded on anything else, the net effect would be that roughly 80'% of the original verdict would be affirmed that way (with the rest potentially still going well for Apple), so Apple's PR message could be "most (if not all) of what we won got upheld." But Apple, just like Samsung with its petition, may set priorities based on key principles, and considering how hard Apple fought over the years, the injunction question is probably going to be even more meaningful to it, even if the most important one of the three patents-in-suit in this particular case has already expired.

  • The strongest part of Samsung's argument for cert regarding (non-)obviousness is that it's the most litigated issue in connection with patents but the three judges of the Federal Circuit's panel, who got overruled by an en banc majority, all wrote dissenting opinions that warn against the consequences of the majority decision.

    The patents at issue in this context cover particular aspects of autocomplete and slide-to-unlock functionalities. So Samsung's first cert question relates to the two patents that are substantially less important from a damages point of view than the "quick links" patent.

There is an unofficial fourth issue that Samsung raises and it relates to the proceedings in the Federal Circuit. Samsung points to Professor Chisum's ("Chisum on Patents") and other legal experts' criticism of how things were handled procedurally, with an en banc decision overruling a panel without a hearing and even without further briefing. That part is relevant in connection with the merits questions (validity and infringement), but not to the injunction case, which was a separate appeal. Maybe Samsung felt that a formal cert question about Federal Circuit interna wouldn't be likely to get the Supreme Court's attention, so the procedural part is raised only as a means of undermining the crediblity of the en banc majority decision.

In the design patent damages case, the cert question that the amicus briefs submitted in support of Samsung focused on was also the one that succeeded (it simply was the most interesting question). It will be interesting to see what any amici supporting Samsung will focus on. If past amicus brief activity in different patent cases is any indication, the standard for injunctive relief may very well be the #1 issue for amici. However, if different amici focus on different ones of Samsung's cert questions, then we may see even more amicus brief activity in total here than we did in the design patents case.

The most interesting de facto amicus briefs may already have been filed: the dissents by Chief Judge Prost in the injunction case and by all three panel members, including Chief Judge Prost, in the merits case. Outside of the Samsung group, no one may be more interested in this cert petition succeeding (at least in part) than Chief Judge Prost, whose dissents were very passionate and persuasive in both cases. Samsung quotes her a lot, including among other things her position that the second Apple v. Samsung case "is not a close case" for an injunction.

Share with other professionals via LinkedIn: