Thursday, April 13, 2017

Software and Internet co.'s, NGOs, professors ask Supreme Court to look at 2nd Apple v. Samsung patent case

Last month, Samsung made a surprisingly early filing of its petition for writ of certiorari (request for Supreme Court review) in the second Apple v. Samsung case. On Monday, various amicis curiae ("friends of the court") made a total of four filings in support of select parts of the petition:

  1. The Software & Information Industry Association (SIIA) and the Internet Association (IA) filed a brief (PDF) in support of Samsung's petition with respect to patent invalidation on the basis of obviousness.

  2. The Public Knowledge Foundation, the Electronic Frontier Foundation (EFF) and Engine Advocacy (a group representing startup interests) support (PDF) all three parts of the petition. The brief goes into detail on obviousness and injunctive relief, and states in a footnote that the infringement-related part (which involves the "quick links" patent and, therefore, roughly 80% of the damages award in that case) "relates to a plain and egregious error on the part of the Federal Circuit with respect to the determination of patent infringement."

  3. The Hispanic Leadership Fund and the National Grange of the Order of the Patrons of Husbandry (an advocacy group representing farmers and rural communities) filed a brief (PDF) in support of Samsung's petition with respect to injunctive relief (an issue on which these amici have previously taken consistent positions) and obviousness.

  4. A group of eight law professors, with two of whom I was in contact via Twitter a few years ago (Santa Clara professors Colleen Chien, who temporarily worked at the White House, and Brian Love), urges (PDF) the Supreme Court to "instruct the Federal Circuit to require actual proof of causation when applying the irreparable harm factor of the eBay test."

One organization that has previously supported Samsung against Apple, the Computer & Communications Industry Association (CCIA), appears to have decided not to get active again at this stage. But in case certiorari is granted, I wouldn't be surprised to see CCIA get involved again. With respect to design patent damages, CCIA's work was really great. But even CCIA may at some point experience such a thing as litigation fatigue: the Apple v. Samsung dispute is now six years old.

Samsung's design patents-related petition was exceptional. It had tremendous support and, since it raised sort of a once-in-a-century type of issue, it was a slam dunk (to the extent that a cert petition can be a slam dunk at all, given overall stats). The fact that certain amici who supported Samsung on design patents aren't on board this time doesn't mean that the three issues raised last months aren't also certworthy in their own ways and their own right.

In this post I want to focus on what the amicus briefs indicate with respect to certworthiness. That has nothing to do with the merits; we'll cross that bridge if and when we get there. It also has nothing to do with the parties: I've agreed and disagreed with either company on different occasions depending on the positions they took. Actually, Federal Circuit v. Federal Circuit would be a more appropriate caption for this cert petition since Samsung is basically just doing what the circuit judges who were outvoted by a majority would presumably have loved to do: to take these issues to the Supreme Court themselves if only they could. Seriously, the most important amicus curiae briefs here are not even the ones I listed above (with the greatest respect for the people and organizations behind them): the most important amicus briefs in support of Samsung's petitions are the dissenting opinions of the outvoted circuit judges.

Still, amicus briefs are important as they can serve to indicate to the Supreme Court that certain sectors of the economy and society, and often also academics, care about the issue(s) presented. They can also draw attention to additional reasons for granting cert. I believe the amicus briefs filed in support of Samsung's petition accomplish both objectives. The advocacy groups talk about how patent obviousness determinations can also affect the U.S. government as a defendant (maybe they wrote this with a view to a potential call for views of the Solicitor General). The Hispanic Leadership Fund-National Grange brief says the following:

"This case involves two separate Federal Circuit decisions that fundamentally alter some of patent law's most broadly applicable principles. [...] These alterations to cornerstones of patent law will shape the dynamics of every patent application, every infringement assertion, and every patent lawsuit—everywhere in the United States."

For the infringement-related part of Samsung's petition (the third part) it could be a problem but need not be the end of the story that no amicus curiae brief focuses on that issue. Samsung itself positioned it as a no-brainer kind of thing that would be very easy for the Supreme Court to decide. With or without amicus briefs discussing that particular issue, Samsung has a chance that the Supreme Court may take a look at that one. But there can be no doubt that the other issues have more traction.

Different amicus briefs stress different problematic aspects of the Federal Circuit majority positions on injunctive relief. As for my own position (and as I said, I don't want to get into the merits question per se at this stage) is that an insurmountable "causal nexus" hurdle would be just as inconsistent with the Supreme Court's eBay v. MercExchange injunctive relief standard as the "some connection" kind of standard (which the various amici disagree with) that is at issue now. By the way, the law professors make it clear in their brief that their concern relates to the way the Federal Circuit majority opinion is worded, not to why Apple formulated its injunction request.

I'm dreaming of a scenario in which the Supreme Court would grant cert with respect to (not exclusively, but also) the injunction issue and if Justice Kennedy, whose eBay concurrence has been so influential, would write the per curiam. His former clerk, Justice Gorsuch, has just been inaugurated, making Justice Kennedy the first Supreme Court Justice in history to serve together with a former clerk of his. That's a historic fact for which most people will remember him, but in the patent law community, his eBay concurrence is considered even more important.

The "some connection" language in the Federal Circuit majority opinion may get the Supreme Court (not only, but especially Justice Kennedy) interested, but some amici stress something really outrageous: the holding that the public interest would almost always weigh in favor of injunctive relief. That fact, in connection with a statement by a circuit judge at a hearing that eBay "was wrongly decided," makes it easy for the Supreme Court to see that at least one of the eBay factors would be vitiated if the Federal Circuit decision on injunctive relief governed the law in this area going forward.

The SIIA/IA brief places particular emphasis on the claim that the Federal Circuit en banc decision on patent validity marks a "return to a pre-KSR approach to obviousness." In KSR v. Teleflex, the Supreme Court clarified in 2007 that "the results of ordinary innovation are not the subject of exclusive rights under the patent laws." Otherwise, the Supreme Court said "patents might stifle, rather than promote, the progress of useful arts." Given my past activities as an anti-software patent campaigner, it won't surprise you that I am particularly skeptical of whether patents in this field--and I mean even the relatively best ones, not just the most trivial ones--promote progress. But even if one viewed software patents more favorably than I do, one may very well agree with those two industry associations (and Samsung and some of its other amici) that the Federal Circuit ruling in this case here should be reviewed because it might make it too hard for defendants to prove a patent obvious. Also, a big question here is whether obviousness is a legal question for a judge to decide or a factual question for a jury to render a verdict on. (Juries rarely invalidate patents.)

The SIIA/IA brief says

  • KSR was the only Supreme Court case concerning § 103 (the obviousness paragraph) in the past 40 years;

  • the Federal Circuit opinion that is being appealed was the "the first en banc decision of the Federal Circuit on obviousness in more than a quarter century," and

  • the Supreme Court "has not adjudicated obviousness issues i the context of that sector of the economy since Dann v. Johnston, [...]" in 1976.

All things considered, I believe Samsung's best shot is the injunction-related part of its petition, but the obviousness matter also has a lot of potential to get the Supreme Court interested. And if both succeed, then maybe the third part (infringement) will be looked at as well since the Supreme Court might then arrive at the conclusion that something went fundamentally wrong before the Federal Circuit.

In a hypothetical scenario in which Samsung's petition succeeded all the way (first cert, then on the merits), Apple would lose a $120 million damages award and would again find it relatively hard to obtain an injunction against highly multifunctional products of patent-infringing rivals, but Apple would also benefit from the relevant holdings whenever the shoe is on the other foot--such as against Qualcomm or Nokia, to name but the two most prominent patent holders presently claiming (in Qualcomm's case: counterclaiming) that Apple infringes their patents.

All four amicus briefs are pretty persuasive. Now Apple is going to oppose the petition, and its lawyers will likely put something very persuasive together as well--or "dissuasive" to be precise, since Apple will portray all three issues as totally cert-unworthy.

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