Monday, June 26, 2017

Supreme Court requests U.S. government's input on Samsung's petition (2nd Apple case)

As the docket overview now indicates, the Supreme Court of the United States has decided to ask for the views of the Solicitor General of the United States on Samsung's petition for writ of certiorari relating to the second California Apple v. Samsung case. To be precise, this CVSG (Call for Views of the Solicitor General) is a CVASG--currently there is an Acting Solicitor General, Jeffrey Wall.

This means the Supreme Court's summer recess will be a busy period for the parties--and other stakeholders--as they will both be lobbying the Department of Justice.

Just last week, a Reuters story had the following headline: "RPT-U.S. Supreme Court and top patent court rarely see eye to eye" It is true that the relationship between the Supreme Court and the Federal Circuit is, well, special. That Reuters article is about a rare case in which there was affirmance, but high-profile reversals, such as recently on patent exhaustion in the Lexmark case, are more common.

This is nice progress for Samsung. The likelihood of certiorari being granted has increased substantially.

In connection with design patents (and involving the same two litigants), the DoJ filed an amicus brief that philosophically agreed with Samsung while procedurally leaving the door open for Apple to prevail regardless. After the DoJ had taken a clear position on the high-level issue (article of manufature), the whole argument was more focused on other questions. Some may view it as an exaggeration, but one could make a defensible case that the DoJ actually did a fair amount of the Supreme Court's job in that case.

It's too early to tell what positions the DoJ is going to take here. Once we all learn more about it, I'll comment. I'm cautiously optimistic, though. This case never was the kind of slam dunk that the design patents issue represented, but what the Federal Circuit did (and how it did it) was rather strange. That's not just my opinion. Mr. "Chisum on Patents" said so. And Samsung got fairly broadbased support from amici. There obviously are stakeholders who are against Samsung's petition, and while they didn't file an amicus brief since it would have been counterproductive (it would only have raised the profile of the issues), some will probably try to influence the DoJ now in ways that would benefit Apple (with a view to this case; in the long run Apple would probably benefit from reversal, possibly even in connection with any infringement claims by Qualcomm).

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