Apple wants to show the jury a blog post but redact certain user comments that would help Samsung

On a trial-free day, Apple and Samsung still find a way to keep the court busy. They just filed letters relating to a trial exhibit that Apple would like to show to the jury, which is this TmoNews ("The Unofficial T-Mobile Blog") post on Samsung's reactivation of the universal search feature of the Galaxy Nexus, which apparently happened in late 2012 after the Federal Circuit lifted the injunction.

Samsung would accept the admission of that document per se, but only if Apple showed the complete document including user comments, while Apple wants to redact certain user comments (some in total, some others in part). The redacted comments and passages largely fall into two categories: negative sentiment about Apple's lawsuits and the validity of its asserted patents, and comments that refer to potential workarounds by Samsung and Google for the injunction patent.

Here are the comments Apple has redacted out (Samsung filed the complete article, and it's still on the Internet anyway):

• atari37: "I thought the universal search patent was invalidated but I'm not too sure. Can't find it anywhere. The Bounce back patent was however invalidated and that might be what I was thinking of. [...]"

• bumrocky: "[...] They must have bypassed the patent, and found a loophole to do it using a new process."

• vinterchaos: "[...] Hate this lawsuit garbage."

• Jamille Browne: "The people that were deprived of such privileges due to crapple's non-sense"

• gpt2010: "[...] Not sure how Samsung and Google are getting away with this since one of the major reasons for the lawsuit was local search. [...]"

• Chris: "They are getting away with it because it's not doing a 'Siri' like search. That's what the whole lawsuit is about.

  So technically, if you don't do a siri like search, you would then be allowed to go on.

  Like Google said before, they found a work around and that lifted the ban."

• Josue: "ismell another stupid lawsuit by crapple"

• Chris: "The ban was already lifted because Google got a workaround a week after the ban was issued. You can find this article/google statement if you google it.

  That's what allowed the GNexus to continue selling."

• Jamille Browne: "I think they restored it because the verdict was overturned maybe? I'm not 100% sure but that may be the reason."

• Josue: "hope so i hate when apple sues ppl for BS things"

I distance myself from all of those comments and, in particular, a certain offensive modification of Apple's name. It's a great company. I prefer Android as a platform over theirs, and I disagree with some of their patent-related positions and claims (the damages claim in the ongoing trial, for example), but my quoting those commenters doesn't have anything to do with my own views. I only provided the quotes above to show exactly what Apple doesn't want the jury to see.

According to Samsung's brief, Apple wants to use that blog post and the redacted version of the comments to show "consumer sentiment" in terms of consumers having temporarily missed the universal search feature (which Apple argues shows that the feature is valuable). But Samsung points to a deal between Apple and the court that any reference by Apple to that story would allow Samsung to discuss the appeals court's reversal of the injunction.

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Apple files response to Samsung's opposition to injunction appeal rehearing

Ten days ago I reported and commented on Samsung's opposition to Apple's request for a rehearing en banc (full-bench review) of a Federal Circuit decision reversing a preliminary injunction against the Galaxy Nexus smartphone. The important N/nexus here is not the Nexus phone, which has limited market relevance at this stage, but the causal nexus requirement for injunctive relief. For alleged lack of a feature-specific causal nexus (a controversial requirement to show that certain patented features drive demand for multifunctional products), Apple was also denied a permanent injunction against a host of Samsung products despite a multiplicity of jury findings of willful infringement. Apple's latest procedural proposal to the Court of Appeals for the Federal Circuit is to hold a rare initial full-bench hearing on the multi-product permament injunction case and to combine this with a full-bench rehearing on the Galaxy Nexus preliminary injunction case.

In Apple's filings as well as legal literature (such as the Patently-O blog, my preferred online reference for developments in U.S. patent law), the Apple v. Samsung injunction appeals that have been adjudicated by Federal Circuit panels are referred to as Apple I (Galaxy Tab 10.1 case) and Apple II (Galaxy Nexus case). The multi-product permanent injunction appeal is likely going to go down in history as Apple III.

Today counsel for Apple filed a motion for leave to file a reply brief in support of a rehearing en banc on the Nexus case (Apple II), responding to the Samsung filing I mentioned at the start of this post. If the Federal Circuit grants the motion for leave, Apple's six-page brief, which was filed along with the motion, will become part of the record. Such motions for leave to file replies (or sur-replies) are often adjudged simultaneously with the original motion. I'll comment on Apple's brief now even though it's possible that it won't be admitted into the record.

Apple's reply brief addresses some of the fundamental questions and repeats, in different words, some of the key arguments. A particularly strong claim is that the panel decision on the Nexus appeal "endorses, without congressional authorization, a compulsory licensing regime for the smartphone, computer, and tablet industries". In my opinion, those who want a compulsory licensing regime, such as Samsung (and Google), should be forthright about their intentions and objectives because they can't credibly deny that a compulsory licensing regime would indeed be the practical consequence of the "causal nexus" requirement, at least in the form in which that one is currently stated and applied.

At the legal level, Apple's latest submission is primarily about whether or not there are now conflicting Federal Circuit decisions on injunctive relief, with Apple I and Apple II being the only cases in which there is a causal nexus requirement. Furthermore, a key question on which Apple and Samsung disagree is whether the causal nexus requirement can be reconciled with the Supreme Court's eBay v. MercExchange decision, which laid out four factors for injunctive relief.

Apple's strongest argument for conflicting Federal Circuit decisions is the Federal Circuit's December 19, 2012 panel opinion on Presidio Components, Inc. v. Am. Technical Cermaics Corp.. This decision is mentioned in Apple's request for an initial full-bench hearing on Apple III (and I mentioned that fact in my post on that petition), but it was handed down approximately three weeks after Apple's petition for a rehearing en banc in Apple II. Today's filing criticizes the fact that Samsung's opposition brief, filed this month, mentioned all sorts of other cases but made no reference whatsoever to Presidio. I agree with Apple that the only plausible explanation is that Samsung didn't want to mention a decision that runs counter to the Apple II panel decision. Presidio is a ruling that reinforces a patentee's entitlement to injunctive relief and does not mention or even obliquely reference the causal nexus requirement.

The most fundamental disagreement between Apple and Samsung relates to whether the causal nexus requirement or, alternatively, Apple's proposal to drop or modify the causal nexus requirement can be reconciled with eBay. Apple says in today's submission that Apple I and Apple II "cannot be reconciled with eBay Inc. v. MercExchange, L.L.C.. Apple notes that eBay "forbids an injunction standard that all but eliminates injunctions in 'a broad swath of cases'", and I would agree that smartphone and tablet computer patent infringement cases are a huge category -- and the same requirement would affect countless other multifunctional product categories, so yes, I think we are talking about a "broad swath of cases" in which injunctive relief would become unavailable. Samsung is trying to leverage the other aspect of eBay, which is that an injunction should not be granted pretty much automatically as a result of infringement. That's why Samsung's opposition brief describes Apple's position as saying "that patent exclusivity, like trespass to real property, warrants injunctive relief for infringement as a matter of course". And Samsung's opposition brief noted that after eBay there can be no presumption of irreparable harm.

I would agree with Samsung to the extent that whatever happens now in Apple II and Apple III could theoretically make the pendulum swing in the other direction and result in too low a standard for injunctive relief, but I don't think that Apple is, at least at this stage, proposing such an extreme outcome. Samsung's argument must be considered, but at this point Apple has the stronger point when it essentially tells the appeals court that Apple II (and Judge Koh's denial of a permanent injunction) set a hurdle that is far higher than a reasonable reading of eBay would suggest. I think it will be hard for Samsung to prevent Apple from achieving at least some adjustment this year, but it's important that Samsung continue to ensure that such adjustment won't be overreaching. For example, Samsung is reasonably concerned about another recent decision (after Apple II) by the Federal Circuit could be interpreted in overly injunction-friendly ways: Edwards Lifesciences AG v. CoreValve, Inc. Apple quotes from Edwards Lifesciences that "[a]bsent adverse equitable considerations, the winner of a judgment of validity and infringement may normally expect to regain the exclusivity that was lost", and "may normally expect" appears very favorable to patent holders. From a public interest point of view both companies are doing the industry at large a service here, helping the Federal Circuit to consider all of the relevant considerations.

Now I'll quote a passage from Apple's latest brief that shows what it is really concerned about from a business point of view -- that Samsung may deem infringement a highly profitable commercial strategy if Apple can only seek damages and not realistically win U.S. injunctions:

"This means that copycat competitors like Samsung can allow innovators like Apple to spend huge amounts of time and money developing new features, incorporate them into their own devices, and then defeat any injunction by arguing that the lower price of the device enabled by the patent infringement itself led consumers to purchase the device for 'price' or 'better value' rather than the patented functionality. Competitors such as Samsung are willing to pay patent damages because the downstream sales they will make from stolen customers make this strategy profitable. See Presidio, 2012 WL 6602786, at *8 (noting potential for 'a calculating infringer' to gain windfalls by obtaining licenses at discount prices)."

The U.S. really has a patent enforcement problem. I don't like everything that I see happen here in Germany, where there are no equitable considerations and injunctions are a standard remedy, but the high standard for injunctive relief combined with the time-consuming and costly process in U.S. patent litigation makes it very hard for legitimate right holders to enforce their patents.

Finally, my favorite part of Apple's brief is that it stresses the option of a workaround:

"Samsung has no answer to the point that a more narrowly tailored injunction-- such as requiring Samsung to remove the infringing features from the Galaxy Nexus smartphone, the use of a sunset period, or even the district court's evaluation of the balance of the hardships--would safeguard against any risk of windfall without need for the novel and dangerous 'causal nexus' requirement. To be sure, Apple initially secured a complete ban on Galaxy Nexus sales (Opp. 12 n.8), but Samsung does not deny that it could have attempted to remove the infringing features and then applied for a modification of the injunction. Where, as here, the traditional equitable factors all point in favor of an injunction, the onus for justifying alternative relief should be on the wrongdoer, not the victim."

I've been criticizing for some time the entire-product-gets-banned perspective that Apple and some of its rivals have taken in various contexts. Many media reports also suggest that products will be removed from shelves when all that needs to be done is to remove or re-implement a particular feature. It makes no sense to have a feature-specific causal nexus requirement but to evaluate the hardship on the defendant from a full-product angle. I believe that the debate over injunctive relief will be much more fruitful on a feature-by-feature than a product-by-product basis. I also think Apple's proposal that the infringer should have the burden of proof for monetary compensation being a preferable alternative to an injunction is worth considering in scenarios in which a workaround is a viable option, if the right balance is struck.

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Apple asks full U.S. appeals court for exceptional attention to Samsung injunction case

On Wednesday afternoon local time Apple filed a petition asking the United States Court of Appeals for the Federal Circuit, which hears all appeals of U.S. patent infringement cases, for an "initial hearing en banc" on Judge Koh's recent denial of a permanent injunction against Samsung. The petition also suggests that such a full-bench hearing could address this case as well as the Galaxy Nexus preliminary injunction case, in which the court appears to be contemplating a full-bench rehearing.

I have previously stressed, more than once in fact, the enormous strategic importance of the legal issue presented here, which is whether a patent holder who has prevailed on the merits at a trial or is deemed likely to prevail at trial has to prove a causal nexus between the identified infringement and the alleged irreparable harm, i.e., make a showing that a particular patented feature drives consumer demand even for multi-feature, multi-purpose products such as smartphones and tablet computers. There's an objective and a subjective dimension here. There are certainly people who generally don't like patent injunctions (or, even more generally, patents), and they will beg to disagree with Apple's recent representation (to the same appeals court) that "the costs to innovation will be profound" if injunctions become practically unavailable in this industry. But no matter on which side one comes down at the policy level, no reasonable person (unless you're Samsung and legitimately want to avoid injunctive relief) can deny the outstanding importance of the question, and the need for clarity. Samsung's opposition to a rehearing on the Galaxy Nexus case made some valid points concerning the merits of that particular appeal but didn't change my conviction that this should be the most important question of patent law for the Federal Circuit to address in a long time as far as the information and communication technology industry is concerned.

Apple's proposal makes a lot of procedural sense (again, as long as you're not Samsung and just want to preserve the status quo in that particular dispute). As I said after Apple gave notice of appeal of the denial of a permanent injunction in the case that was tried in the summer, it "would probably be an unprecedented situation that you have two injunction cases, involving the same two parties and therefore partly the same business issues (product categories, competitive dynamics etc.), pending at the Federal Circuit at the same time, with one case [the Galaxy Nexus one] being possibly reheard by the full court and another case [the permanent injunction case] just starting now". If a rehearing on the Galaxy Nexus case was held and the original October 2012 opinion modified with respect to the causal nexus requirement (there's also a claim construction issue, but that one is irrelevant to the permanent injunction case), this would have major implications for the more important case.

Apple's petition stresses the relevance of all of this but is very respectful, knowing that the appeals court usually assigns a case to only one panel and grants full-bench reviews of panel decisions in only one or two cases a year, and an initial full-bench hearing is even more extraordinary. Apple told the court that it "is prepared to meet whatever briefing schedule the Court directs in both this case and [the Galaxy Nexus case]". It's clear that Apple's priority is to have the full appeals court look at the causal nexus issue, and the Galaxy Nexus as a product is a very low priority (or next to no priority) by now. A combined full-bench hearing on both cases would have advantages for everyone but Samsung:

• The appeals court could provide a maximum degree of clarity concerning whether the standard for a permanent injunction (where the merits have been adjudged) and the standard for a preliminary injunction (where the court has to assess the likelihood of different outcomes) should differ with respect to the causal nexus requirement. Apple is particularly interested in what the standard should be in the event of "a direct competitor's deliberate and successful copying of the patentee’s innovative designs and features for use in competing products". Two consecutive decisions could ultimately also do the job, but a single ruling can make any differences between the standards perfectly clear from the beginning, while there would again be some lack of clarity between two successive rulings.

• If the appeals court agrees with Apple that the causal nexus question is important enough to warrant the attention of all of its judges (which some experts doubt but which I think is quite realistic), it may consider it more efficient to address both cases at the same time, and to do so on a schedule that would give everyone more time to prepare than the accelerated schedule for a preliminary injunction case.

All the uncertainty surrounding the causal nexus requirement is having effects on other U.S. patent cases and is bound to result in a number of inconsistent decisions, by district courts as well as by Federal Circuit panels, until the full appeals court clarifies the issue. Apple's petition mentions that two months after the Galaxy Nexus decision, another Federal Circuit panel issued a more injunction-friendly ruling in a different IT patent case (Presidio Components, Inc. v. American Technical Ceramics Corp.) without the exacting causal nexus requirement. I've also heard of a case in which Brocade won an injunction and in which the causal nexus requirement did not play a role because a judge (Magistrate Judge Grewal, who is assisting Judge Koh on Apple v. Samsung) thinks it's still very much in flux. But there are many other patent cases pending and in some there will now be denials of injunctive relief on that basis.

Finally, I'd like to quote a passage from Apple's petition that I think explains particularly well the implications of the causal nexus requirement in the current situation:

"The district court's application of the causal nexus requirement in this case makes it all but impossible to obtain a permanent injunction in a case involving complex patented products or designs, even where, as here, the plaintiff has proven extensive, willful infringement by a competitor across numerous products and patents. Although individual features in complex products may be generally important, they will almost never drive consumer demand by themselves, at least not provably. Consumers buy complex technological products for a whole host of reasons, often with no one reason determining the customer's decision. Many patented features may contribute in a significant way to customer demand even though no one is a reason, by itself, why a customer makes the final purchase."

The above paragraph is factually accurate. Apple then goes on to propose its preferred way forward, and that's where different people will have different positions, and different companies will have different interests.

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Samsung vehemently opposes Apple's request for a rehearing of U.S. appeals court's Nexus ruling

Apple is fighting a strategic battle at the United States Court of Appeals for the Federal Circuit. It's about nothing less than the question of whether Apple or other industry players will have a realistic chance to win U.S. utility patent injunctions (other than ITC import bans, which follow different rules) against multifunctional smartphones and tablet computers. The importance of this basic question can hardly be overstated:

• If the answer is that sales bans remain practically unavailable (unless there's a massive design patent infringement), patent holders like Apple will have to focus on other jurisdictions (such as Germany) and will have to content themselves with past damages and ongoing royalties in U.S. federal court, which will eventually give them significant leverage, but it will take a lot of time and money to get there. Apple argues that the "costs to innovation will be profound" in this scenario.

• If the appeals court alters course and ensures that utility patent injunctions against multi-feature products remain reasonably available, Apple may later this year have the leverage it needs to get Samsung to make an anti-cloning commitment such as the one made by HTC. The Galaxy Nexus case itself won't have that effect directly, but a modified Federal Circuit opinion would pave the way for a successful appeal of Judge Koh's recent, unprecedented denial of an injunction against two dozen Samsung products over half a dozen intellectual property rights.

The stakes could hardly be higher.

A few days ago, Reuters' Dan Levine reported on this (the only general-interest media report on this topic that I've seen to date) and said that Apple faces "long odds" in the eyes of certain experts. With the greatest respect for the people Reuters quoted and relied on, I disagree. It's a significant challenge, but it's not a long shot at this stage, considering that the Federal Circuit ordered Samsung to respond to Apple's petition and that if the question raised here isn't fundamental enough to warrant a rehearing, nothing else will.

There are actually three kinds of odds that must be properly distinguished:

1. I would agree that the odds are somewhat long against the ultimate outcome of this process being an injunction against the (now somewhat obsolete) Galaxy Nexus phone. That's because Apple would need to overcome more than one hurdle to get that particular injunction back. There's the causal nexus issue (the question of whether the specific infringements, as opposed to multifunctional products with infringing and non-infringing features, cause irreparable harm), but also a claim construction issue. For the claim construction part let me refer you to Patently-O's excellent explanation. And even if Apple made headway on causal nexus and claim construction, it's possible that the Federal Circuit finds that it simply asked for too broad an injunction, and that a more narrowly-tailored request would have succeeded.

2. The odds are considerably less long against Apple achieving some improvement on the causal nexus issue alone. In that case, the Galaxy Nexus injunction wouldn't come back, but Apple's appeal of last month's denial of an injunction over half a dozen intellectual property rights would get an unbelievable boost. And I believe Apple would be 99% happy in this scenario.

3. The first question, in a chronological sense, that needs to be answered now is whether a rehearing en banc will be granted. Such full-bench reviews are rare. I mentioned before that they grant maybe one or two a year. But under the specific circumstances here, I believe Apple now has a 50% chance, if not greater. I'll explain this now in more detail.

The standard for a rehearing en banc is that Apple must show a conflict between a particular panel decision with Federal Circuit precedent or an issue of exceptional importance. As for the conflict, I see stronger indications of this being the case for the aforementioned claim construction issue than the injunctive-relief standard. But in my view there can be no doubt about the exceptional, ongoing importance of the "causal nexus" matter. Let me quote Patently-O's Professor Dennis Crouch:

"Taken as a pair, Apple I [the appeal of the Galaxy Tab preliminary injunction] and Apple II [the appeal of the Galaxy Nexus preliminary injunction] are important because they further reduce the chances that the owner of a component patent will obtain injunctive relief. Before eBay, irreparabl[e] harm was hardly a consideration. Since eBay [v. MercExchange], the irreparable harm factor has largely focused on whether the patentee has a product or potential product being harmed by ongoing infringement. Now, the question will move to the next level of granularity in a way that will be difficult for patentees to prove."

Samsung's brief, which was filed late on Friday (the deadline was extended as per a request by Samsung, which Apple didn't oppose), obviously tries to deny any conflicts with previous decisions and to downplay the importance of this matter, as it must. Its brief makes a number of valid arguments on the issue itself, but I don't really think the filing makes a compelling case for not taking a closer look at the issue.

Here's one aspect of the rehearing-or-not analysis on which I tend to agree with Samsung. Apple argued in its petition that the causal nexus requirement is effectively a new, fifth eBay factor. That's Apple's strategy for claiming that there's a conflict with Federal Circuit precedent, but I'm also inclined to think that the causal nexus is just, as Dennis Crouch said in the paragraph quoted above, "the next level of granularity".

Samsung argues that "[i]njunctions have long been denied for lack of causal nexus between alleged illegality and injury outside the patent area" (emphasis mine). In this context, Samsung points to two Ninth Circuit and three district court decisions from other circuits. But the fact that Samsung can't point to Federal Circuit precedent, or at least some district court patent cases, supports Apple's claim of this being novel. A new development it is for sure -- maybe a conflict with same-court precedent as Apple says, but even if not, it's at least a new and important issue that warrants review.

In its petition Apple pointed to certain cases in which injunctions were granted, including, among others, the i4i v. Microsoft case. In this regard I agree with Samsung to some degree, but ultimately come down on Apple's side as far as the need for a rehearing is concerned. Samsung's pleading explains very well why the cases adduced by Apple are distinguishable from a smartphone or tablet computer case. In all of those cases there certainly was (even if the "causal nexus" issue wasn't addressed per se) a much closer relationship between the patents held infringed and the alleged irreparable harm. One of the relates to a medical device that Samsung claims was "effectively coextensive" with the patent-in-suit, and Samsung's related arguments are plausible. Nevertheless it is an issue of exceptional importance to the entire U.S. patent system whether injunctive relief is or is not realistically available (meaning that the requirements for proof aren't so exacting that no one can reasonably meet them) in connection with products of this kind. As a matter of fact, this product category of multifunctional, mobile computing devices has given rise to more high-profile patent lawsuits than any other in recent history.

Samsung obviously argues that one could still win an injunction if it's more narrowly-tailored than the one Apple sought (and this again is a point on which Samsung may be right) and presents different kinds of evidence. On the latter part I have my doubts. It really looks to me like the current requirements represent an insurmountable hurdle, even for a company with Apple's sophistication and resources.

If the Galaxy Nexus appellate opinion is not modified, the U.S. patent enforcement system (apart from the ITC, which is different in various ways and not really a substitute for the federal courts) will basically abdicate with respect to this industry. The result will be that a Silicon Valley icon like Apple will have to turn to the courts in Dusseldorf, Mannheim, Munich, The Hague, Paris, or maybe also London, Sydney, Milan and Madrid, to prevent its closest competitor from copying some of its patented features.

There simply is no single utility patent that can be seen as driving demand for an entire smartphone or tablet computer. It's always a combination of numerous features. Samsung does not cite an example of a patent that it would recognize to be a driver of demand. If Samsung was forced to come up with one, it would likely name some of its own patents (it's one of the largest patent filers in the world, but the impact of its scattershot litigation against Apple, outside of Korea, has been next to nil) and would never concede this with respect to an Apple patent. But again, there simply isn't "the iPhone patent" or "the iPad patent". And no U.S. federal court would have allowed Apple to assert a couple hundred patents in the same action and put them all before a jury. So the question is what the courts will do, and whether they will impose sales bans, if a smaller number of patents (which is not that small in the Apple v. Samsung case that went to trial in the summer) is found infringed.

In its brief, Samsung argues that Apple was able to win an injunction against the Galaxy Tab 10.1, but it only did so over one of several patents deemed infringed, and that one was a design patent. There obviously aren't tens or hundreds of thousands of design patents that read on a single product. But there are massive numbers of utility patents that such devices can infringe, and the Federal Circuit has apparently begun to ask itself whether it needs to alter the course. I have a hunch that the rehearing will take place, and that there will be some improvement for Apple, though likely not enough to get the Galaxy Nexus banned, which doesn't really matter commercially compared to the implications for the appeal of last month's denial of a permanent injunction. There are some good points in Samsung's pleading, but all in all I think it's not very dissuasive with respect to the enormous importance of the issue.

As a side note, Samsung's brief also quotes from an Apple filing in an Eastman Kodak case (by now, Apple owns some former Kodak patents and co-owns others) in which Apple argued against injunctive relief and made a causation-related argument. Each party to a dispute makes the opposite argument when the shoe is on the other foot. I don't expect this to bear much weight.

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U.S. appeals court may grant Apple a rehearing on reversal of Galaxy Nexus injunction

After I discovered (see the end of this November 1 post) that Apple had declared its intent to file a petition for a rehearing en banc (full-bench review) of the Federal Circuit's reversal of the Samsung Galaxy Nexus preliminary injunction, I mentioned that "[s]uch rehearings are rarely granted". Statistically that's true. The Federal Circuit granted only one such petition per year in most of the recent years, occasionally two, and none at all in 2006. But Apple's petition for a rehearing en banc is now more likely to be granted than the average en banc petition.

Today a deputy clerk of the Federal Circuit wrote a letter to Samsung's counsel with the following content:

"This will confirm our telephone call that the court has requested a response from Appellants [Samsung] to Appellee's [Apple's] petition for rehearing en banc.

Please file your response in accordance with Fed. Cir. Rule 35 on or before January 2, 2013."

The relevant Federal Circuit rule says, among other things, that "[n]o response may be filed to a petition for an en banc consideration unless the court orders a response". The fact that it ordered a response here shows that Apple's petition is taken somewhat seriously. Whether that's ultimately enough for a rehearing en banc to be granted is unclear, but it's now considerably more likely than it was before.

Apple's petition, filed on November 26, focused almost entirely on the standard for injunctive relief. It also challenges the claim construction adopted by the original panel, but that's a secondary issue. And at this stage the Galaxy Nexus isn't really important to Apple. What matters to Apple is whether the "causal nexus" requirement -- according to which a patent holder would have to surmount the unbelievably (if not impossibly) high hurdle of proving that the patented feature drives demand for the infringing product in order to establish irreparable harm -- goes too far. Apple's petition argues that this requirement "dramatically reduces the availability of preliminary injunctions, particularly in cases involving multi-featured smartphones, tablets, computers, and other electronic devices".

Apple is concerned that the causal nexus requirement becomes an additional requirement on top of the four traditional preliminary injunction factors (likelihood of success, irreparable injury, balance of hardships, and public interest). I wouldn't agree that its like a fifth factor, but I do agree with Apple that it substantially raises the bar for the irreparable harm factor. Having watched the process so far, I believe Apple had actually gone to extreme lengths to show that Siri-style unified search matters to a significant number of consumers. The question is indeed if anyone is ever going to win an injunction against a smartphone or tablet computer in U.S. federal court as long as the "causal nexus" requirement is applied the way it was in the Galaxy Nexus case.

Regardless of whether one supports or opposes injunctive relief against multifunctional products, there's no denying that Apple has raised an issue of fundamental importance, and that's why the full Federal Circuit may indeed want to look into this matter -- not because of the Galaxy Nexus but because of countless other cases in which the same issue will come up. A balance must be struck between the legitimate interests of right holders to stop infringement and those of the makers (and buyers) of multifunctional, mostly non-infringing products. Apple's argument is (not in those words, but the way I see it) that the decision lifting the Nexus injunction didn't strike a balance but simply raised the bar so high that the net effect would be tantamount to compulsory licensing.

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Court doesn't allow sweeping inclusion of Android 4.1 ('Jelly Bean') in Apple-Samsung lawsuit

A few weeks ago there was a lot of media coverage of a court hearing at which Apple and Samsung were discussing with Magistrate Judge Paul S. Grewal the proposed addition of newer products, such as the iPhone 5 and Galaxy Note 10.1, to their second California lawsuit (not the one that went to trial this summer). However, that desire was old news: I already reported on it on September 20 when the parties filed their proposals that gave rise to the recent hearing.

Late on Thursday, Judge Grewal ruled on the parties' motions to amend their infringement discloures. With one important exception -- Android 4.1 aka "Jelly Bean" -- he took a rather permissive approach that is consistent with the applicable local rules for patent litigation in the Northern District of California, which set a relatively low hurdle for post-deadline amendments to infringement contentions, merely requiring that good cause be shown. So the iPhone 5, Galaxy Note 10.1 and Galaxy S III are "in". They don't raise any new technical issues anyway -- where this really makes a difference is in connection with damages should any infringements be identified. Products that are not accused in one lawsuit require a new, additional lawsuit to collect damages.

It also makes a formal but not substantial difference with respect to possible injunctions. Judge Koh, who is presiding over this lawsuit and being assisted by Judge Grewal on discovery matters, has previously granted injunctions of the "no more than colorably different" kind, which are not limited to a few specifically-named products but relate to all products having substantially the same infringement pattern. By the time any injunction comes down at the end of this lawsuit (the current trial date is in 2014), successors to the products just added to the list will have been launched anyway, placing the emphasis on the question of whether or not a newer product will or won't be more than colorably different from today's technologies as far as the alleged infringements are concerned. If, for example, the iPhone 5 has the same alleged infringement pattern as the iPhone 4, then Samsung's enforcement of a hypothetical injunctions against an iPhone 6 or iPhone 7 would require a "colorably different" analysis starting from the same basis. And even if the iPhone 5 is still on sale at the time, the fact that it was just named won't make it subject to the enforcement of an injunction after software changes that relate to an injunction patent (workarounds etc.).

By adding Android 4.1 ("Jelly Bean"), first released in July 2012 and therefore after the mid-June deadline for regular infringement contentions in this case, Apple would have created a situation in which a slew of later product releases coming with that version of Google's mobile operating system would have been targeted in this lawsuit without the actual products being named. This would have resulted in a potentially open-ended definition of products on which Apple could have later tried to collect damages. A blanket attack on Jelly Bean would also have created a situation in which Google would have made itself totally ridiculous if it had not done everything in its power to join the case as a co-defendant (or at the very least as a formal intervenor).

Judge Grewal agreed with Samsung that "such an[] amendment would be overbroad and may sweep any number of Samsung devices using the Jelly Bean operating system into this suit" and that "Samsung also does not have any design control over the content of Jelly Bean as it is a Google Android product that Samsung itself did not develop". Moreover, "[t]he court will not permit a sweeping amendment that might apply to devices other than those properly tied to Samsung".

In a formal sense, Apple's motion was also granted with respect to Jelly Bean, "but only as to the Jelly Bean product Apple has specified: the Galaxy Nexus". Apple definitely wanted a more inclusive infringement contention to be allowed. The Galaxy Nexus has been targeted in this lawsuit from the beginning. What Apple just achieved is that the updated version of the Galaxy Nexus running Jelly Bean will also be adjudged by the court. In connection with other products than a Nexus gadget, it might also be useful to Apple if it could later claim that the court determined (if it so did) that the infringing component of the accused product is the Android operating system -- but if a court finds a Nexus device to infringe a software patent, everyone in the industry knows that "stock Android" (Android as made available by Google, without vendor-specific enhancements) is at issue. Of course, the court order may nevertheless trigger Google's formal intervention.

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Federal Circuit extends stay of Samsung Galaxy Nexus injunction -- for the time being

While jury selection is underway in the Apple v. Samsung trial in San Jose, California, the United States Court of Appeals for the Federal Circuit just issued a ruling that is moderately favorable to Samsung (though it has no bearing on the ongoing trial because it's related to a different case that Apple brought in February 2012 and that is presently scheduled to go to trial in March 2014). The appeals court decided to hold Samsung's motion to stay the preliminary injunction against the Galaxy Nexus smartphone, which Samsung co-developed with Google, in abeyance. In practical terms, this means (as the order clarifies) that the temporary stay (a stay until the court has decided on the motion to stay the injunction for the entire duration of the appeal) remains in effect.

To put this into context, here's the timeline:

• On June 29, Apple won a preliminary injunction against the Galaxy Nexus over a Siri-related unified search patent.

• On July 3, Judge Lucy Koh denied a Samsung motion to stay the injunction and Apple posted a $95.6 million bond.

• On July 6, the Federal Circuit granted an immediate, temporary stay of the injunction -- a stay until a decision on a stay for the entire duration of the appeal is made.

• A week later, on July 13, the appeals court granted Samsung's motion for an expedited appeal. According to that expedited schedule, the briefing process should be completed by early August at the lastest.

• On July 20, it scheduled a hearing for August 20. A decision on the appeal is likely to come down in the days or weeks following the hearing.

Today's order doesn't indicate when the abeyance period for the motion to stay may end. Basically, the court can decide to adjudicate the motion whenever it believes it has obtained enough information and has had enough time to think about it. The court might make a decision after the briefing process, or after the hearing.

I said that this is only "moderately favorable to Samsung". That's because it shouldn't be extremely difficult for the court to grant the motion to stay: since the appeal can be adjudicated anytime after the August 20 hearing, it would make sense to just stay the injunction for the remainder of the appeals process given that a disruption of its sales is clearly more harmful to Samsung than an extended stay is to Apple. If the court needs more information to decide on the motion to stay, Samsung must make some more headway to prevail on its appeal. The next major milestone is Samsung's reply brief, which it may (and presumably will) file on or before August 6.

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Federal Circuit schedules Galaxy Nexus injunction appeal hearing for August 20

The United States Court of Appeals for the Federal Circuit just decided to hear Samsung's appeal of Apple's preliminary injunction against the Galaxy Nexus smartphone on August 20 (click on the image to enlarge or read the text below the image):

"The motion to expedite oral argument is granted. Oral argument will be held at 2 p.m. on August 20, 2012 in Courtroom 201."

This is the third decision in Samsung's favor during the early stages of this appeal. Previously, Samsung obtained a temporary stay of the preliminary injunction. That stay will be in effect until the appeals court decides on whether to grant a stay for the entire duration of the appellate proceeding. The Federal Circuit also granted Samsung's request for an expedited schedule.

With the hearing now being only a month away, Samsung also has a pretty good chance of winning a stay of the injunction for the remainder of this fast-track appeal.

It's not all bad news for Apple. While Apple would certainly like to be able to enforce this injunction again as soon as possible, it will benefit much more from a preliminary injunction that the Federal Circuit affirms (if it does). Should Apple win a favorable ruling after the August 20 hearing, it would then be in a tremendously strong position vis-à-vis Google and its Android partners to demand an end to all infringement of its Siri "unified search" patent.

The August 20 hearing will likely turn into a major Apple v. Samsung & Google showdown. And in all likelihood the Apple v. Samsung trial in Northern California (at which the Siri patent is not at issue) will be ongoing. Apple's in-house lawyers will have to choose which one to attend, but for its law firms it's not that difficult: while Morrison & Foerster represents Apple in both cases, Gibson Dunn & Crutcher is involved with only the 2012 lawsuit from which the Galaxy Nexus injunction has resulted.

In a parallel case involving the same parties, the Federal Circuit yesterday denied a Samsung motion to stay the Galaxy Tab 10.1 injunction for the duration of the appeal. The court previously denied a short-term stay until the decision that came down yesterday.

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Federal Circuit speeds up proceedings for Galaxy Nexus appeal

The United States Court of Appeals for the Federal Circuit just entered an order that contains good news for Samsung. As the Korean electronics giant requested, its appeal of the preliminary injunction against the Galaxy Nexus will be evaluated on the fast track. Samsung has until Monday (July 16) to file its opening brief; Apple will file its answer until July 30; and Samsung can reply within another week (until August 6). The court will soon schedule a hearing.

The order does not address for how much longer the stay of the injunction remains in place. There could be another order later today, or otherwise I believe this will be decided next week.

The expedited appeals process is important for Samsung since the trial of the related federal lawsuit in California is currently almost two years away. The Apple v. Samsung case that goes to trial later this month is about different intellectual property rights and different Samsung products (including the Galaxy Tab 10.1).

The Federal Circuit also accepted Sprint's and Google's amicus curiae briefs against Apple's objections. In particular, Apple pointed out that Google is not an amicus curiae in terms of a third party, given that it co-developed the Nexus and that it was represented in its intervention in district court by the same law firm (Quinn Emanuel) as Samsung. Apple said that Google hired White & Case for its representation before the Federal Circuit only to conceal its close ties with Samsung.

There's only one small item in the order that Apple will like: Apple's sur-reply, filed this afternoon, to Samsung's motion to stay the injunction has also been accepted. In its reply to Apple's opposition to the motion, Samsung had complained about Apple's takedown notices to Samsung's downstream customers (U.S. carriers and retailers). Apple's sur-reply commented on this new theory (it did not come up in Samsung's original motion). The fact that the sur-reply is accepted doesn't mean that the court will agree with it, but it will now consider it. Here's the text of that pleading:

"Samsung, in its reply brief, has not disputed that immediate enforcement of the injunction would result in no irreparable harm to Samsung. In the absence of such harm to the moving party, there is no conceivable basis for issuing a stay of the injunction. Without addressing that fundamental point, Samsung’s reply focuses solely on supposed harms to third parties, which do not and cannot warrant a stay pending appeal. See, e.g., Apple's Response to Sprint's Motion for Leave to Participate as Amicus Curiae.

To support its new theory, Samsung seizes upon a letter that Apple sent to various carriers and retailers, informing them of the injunction and asking them to discontinue the sale of infringing Galaxy Nexus devices. That Apple would inform others of the entry of the injunction could not have come as any surprise to Samsung given Apple’s continued efforts to enforce its intellectual property rights. Moreover, Apple’s letter shows nothing beyond the entirely predictable consequence of Samsung's infringement--i.e., the infringing products must be taken off of the market. It is not a legally cognizable harm to halt downstream sales of stolen, pirated, counterfeit, or infringing products.

In any event, as the court below and this Court have repeatedly found, the mere fact that third parties might face a disruption in their efforts to distribute infringing products is absolutely irrelevant at the stay stage. Because Samsung is the moving party seeking a stay, Samsung has the burden of proving that it would be irreparably harmed in the absence of an injunction. Although harms to third parties (and the public at large) might be considered when addressing the 'public interest' factor, a belated submission on that single factor does not satisfy Samsung's heavy burden of showing that a stay is necessary to protect its own interests. Indeed, in the absence of irreparable harm to Samsung—which Samsung now concedes--no stay may issue regardless of all the other factors.

Samsung's motion to stay the preliminary injunction should be denied."

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Apple contacted U.S. carriers and retailers to demand removal of banned Samsung products

During the last 24 hours there have been various filings with the Federal Circuit in the cases relating to Apple's preliminary injunctions against the Galaxy Tab 10.1 and the Galaxy Nexus smartphone. I'm monitoring developments and may report on them again later today. For now I just wanted to highlight the most interesting development: a couple of Samsung filings say that Apple's enforcement activities include letters to "to many carriers and retail companies that currently sell" the banned products, telling them that "[a]t a minimum" they are required to "immediately remov[e] for sale the [banned product] from all physical and online venues under [their] direction or control".

Samsung filed letters from the San Francisco-based law firm of Taylor & Company sent on Apple's behalf to downstream customers. Apparently, letters relating to the Galaxy Tab 10.1 went out on June 28, and letters concerning the Galaxy Nexus were sent on July 3 (before the injunction was stayed).

Samsung claims that "Apple’s menacing letters greatly overreach, incorrectly claiming that third-party retailers are subject to the prohibitions of the preliminary injunction, which they clearly are not". In Samsung's opinion, "they are permitted to sell their existing inventory, even without a stay". However, both preliminary injunctions clearly relate not only to Samsung's employees, agents etc. (including its subsidiaries and "partners") but also to "those acting in concert with any of them". Here's what Judge Koh's orders say:

"Samsung Electronics Co., Ltd., Samsung Electronics America, Inc., and Samsung Telecommunications America, Inc., its officers, directors, partners, agents, servants, employees, attorneys, subsidiaries, and those acting in concert with any of them, are enjoined from making, using, offering to sell, or selling within the United States, or importing into the United States, [the relevant product], and any product that is no more than colorably different from this specified product and [infringe the relevant intellectual property right]."

Apple may be aggressive, but its understanding of the scope is not baseless. At the same time, Samsung is right when it points to previous decisions according to which someone who is not a party to a particular litigation cannot be enjoined or held in contempt "with respect to their independent conduct regarding the subject matter of the [underlying] case" -- but the question of how "independent" Samsung's carriers and retailers are in connection with their promotion and sale of those products is debatable.

In a reply brief in support of its motion to stay the Galaxy Tab 10.1 injunction, Samsung actually admits that its public statements are one thing and the actual business impact of the enforcement of such injunctions is a different story:

"Contrary to Apple's assertions [...], the public statements by Samsung representatives about the significance of the injunction on its global business operations do not defeat Samsung's argument of irreparable harm. Samsung's statements to reassure the market do not mean, or imply, that Samsung’s good reputation and good will are not being tainted by the preliminary injunction. Nor, of course, do those statements, made before Apple's threatening letters were known, account for Apple's attempts to interfere with downstream customers."

The above passage effectively says that "the first casualty of patent war is truth". I have previously disagreed with some of Samsung's public statements on court rulings.

Here's the text of a sample takedown notice from Apple to retailers that Samsung filed with the court (copies of such letters were provided to Samsung "pursuant to the submitting party’s obligation to provide notice to Samsung of a potential claim under their Supply Agreement"):

VIA FACSIMILE, REGISTERED MAIL, FEDERAL EXPRESS AND REGISTERED AGENT

Re: Apple Inc. v. Samsung Electronics Co., Ltd., et al., United States District Court, Northern District of California, Case No. C-11-01846 (LHK)

Dear [recipient]:

We represent Apple Inc. in the above-referenced action.

We enclose a copy of the June 26 preliminary injunction ordered entered by the U.S. District Court for the Northern District of California in this case together with a copy of Apple's U.S. Design Patent No. D504,889 (the '889 patent'). With the posting of the requisite bond, the order is now in effect.

The order provides as follows:

[T]he Court issues the following order enjoining the Galaxy Tab 10.1 from sale in the United States: Samsung Electronics Co., Ltd., Samsung Electronics America, Inc., and Samsung Telecommunications America, Inc., its officers, directors, partners, agents, servants, employees, attorneys, subsidiaries, and those acting in concert with any of them, are enjoined from making, using, offering to sell, or selling within the United States, or importing into the United States, Samsung's Galaxy Tab 10.1 tablet computer, and any product that is no more than colorably different from this specified product and embodies any design contained in U.S. Design Patent No. D504,889.

(emphasis added).

As the italicized language provides, the order applies not only to the named Samsung entities, but also to anyone "acting in concert" with them. Apple thus believes that the order extends to you because you may be selling, offering to sell, or importing the Galaxy Tab 10.1 tablet computer.

Please comply with the order by ceasing immediately to engage in any of the specified acts (e.g., importing, offering to sell, or selling within the United States) in connection with the Galaxy Tab 10.1 tablet computer and any product that is no more than colorably different from it and embodies the '889 patent's design. At a minimum, Apple believes compliance with the Court's order requires immediately removing for sale the Galaxy Tab 10.1 from all physical and online venues under your direction or control.

Please contact the undersigned if you have questions.

Regards,

[signatory]

Enclosures

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Sprint files amicus brief with Federal Circuit, opposes Galaxy Nexus ban

Apple still has two days left to file its opposition to Samsung's motion to stay the Galaxy Nexus ban for the entire duration of the appellate proceedings before the Federal Circuit. For the time being, the injunction cannot be enforced, but only until the Federal Circuit decides on whether to extend or lift this stay.

At this critical juncture, third parties have started to chime in. One of them, Google, is only formally a third party. Since Google co-developed the Galaxy Nexus with Samsung, it's more of a co-defendant. Google filed its brief on Friday. A major wireless carrier, Sprint, intervened today (Tuesday).

Google refers to the technology covered by Apple's '604 "unified search" patent as "a trivial patented aspect of a single application on the phone, with no evidence that that patented aspect influenced sales". It also calls it "at best, [...] a very minor aspect of the Galaxy Nexus phone's overall functionality". It then criticizes that Judge Koh relied on evidence showing the popularity of Siri among Apple's customers, arguing that what matters is what Samsung's customers like. But Google concedes that "the iPhone and the Galaxy Nexus may compete for the same customers". Still, "that does not mean that the feature preferences of Galaxy Nexus buyers are the same as the feature preferences of iPhone buyers". This is a bit of a stretch, and Google's claim that the Nexus can do well without infringing on the '604 patent can be turned against it by arguing that it should simply remove this allegedly unimportant feature instead of continuing to infringe.

Sprint's filing focuses on the harm that the carrier claims to suffer from the preliminary injunction at issue, and generally warns against the implications of preliminary injunctions against smartphones. The amicus curiae brief was filed by a Sprint Nextel Corporation subsidiary named Sprint Spectrum L.P., which describes itself as "the primary Sprint-related entity that sells various smartphone devices and corresponding services to end users in the United States".

Sprint's letter contains several warnings that "preliminary injunctive relief should not become a staple of the 'smartphone wars'". Sprint says it would take this position if the roles between Apple and Samsung are reversed, or if different companies were involved. It says it's an "unwitting victim" of this dispute. Sprint doesn't comment on the merits of the case. It just wants the issue to be fully litigated without an immediate ban. Since "[b]ringing a device to market takes hundreds of people approximately 9-12 months", Sprint argues that preliminary injunctions come down too fast to replace banned products with non-infringing new ones. It furthermore says that "[a]n immediate preliminary injunction against a device substantially and irreparably harms Sprint by leaving a void in its device portfolio".

On the one hand, I can understand Sprint's and any other carrier's interest in the uninterrupted availability of wireless devices. On the other hand, patent litigation in the United States is so incredibly slow that I can also understand Apple's pursuit of preliminary injunctions. There's no easy answer. The debate will continue for some time.

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Samsung wins temporary stay of Galaxy Nexus ban

Good news for Samsung and Google: late in the day on Friday, the United States Court of Appeals for the Federal Circuit issued an order granting Samsung' motion for an immediate, temporary stay of Apple's preliminary injunction against the Galaxy Nexus smartphone.

The stay relates to the period of time between now and the Federal Circuit's decision on Samsung's motion to stay the Nexus injunction for the entire duration of the appeal. As I reported earlier, Apple has until Thursday (July 12) to respond to the motion to stay. The court will await Apple's response and then decide on a stay for the entire duration of the appeal. In other words, we might see an "on again, off again" ban: it was in effect after Judge Koh denied Samsung's motion to stay and Apple posted the bond; it's now stayed; but if the Federal Circuit does not decide to stay it for the entire duration of the appeal, then it will enter into force again, possibly as early as next week.

The temporary stay allows Samsung to minimize the disruption that the injunction causes. Google had announced a software change to avoid further infringement, but it will likely take time to build new devices that come with non-infringing operating software.

After five failures to win stays (Samsung unsuccessfully asked Judge Koh for stays of two different durations concerning both injunctions, and the Federal Circuit denied an immediate, temporary stay of the Galaxy Tab 10.1 injunction), Samsung has finally won at least this stay. The Federal Circuit did not explain its reasoning here. At the very least Samsung has convinced the court's Motion Panel that there could be serious harm from the injunction and the Federal Ciruit appears to have deemed one or more of Samsung's arguments potentially meritorious. But when a court decides on an immediate stay during the same day (the motion was filed earlier on Friday), we're talking about a prima facie analysis compared to which even a week or two (which is the time it will likely take to adjudicate the motion for a multi-month stay pending the entire appellate proceeding) is a lot of time.

It would be mistaken to conclude from this temporary stay that Samsung is very likely to win a stay for the duration of the apeal. But there's no question that its motion to stay the Nexus injunction is clearly more likely to succeed than the one relating to the Galaxy Tab 10.1.

In its response to Samsung's motion to stay, Apple will likely point to Google's announcement of a software patch. Given that it's possible to work around this patent (even though this change is going to result in a degradation of the user experience, likely limiting Siri-like voice search to only the browser app), Apple may convince the Federal Circuit that there are no pressing balance-of-hardship reasons to stay the injunction for the entire duration of the appeal.

Apple has until Thursday to file its response, but now that the injunction has been stayed, it would actually be in Apple's interest to do so sooner rather than later (such as by Monday).

Samsung can now sell some more of the Nexus units it already has in its U.S. warehouse, but the temporary stay could go away within a matter of days or a very few weeks. Samsung will need to build, and ship to the U.S., some non-infringing Nexus units anyway to avoid or mimimize disruption in case this temporary stay is not extended.

Also, while the primary concern of these major players it to be able to sell their products, continued infringement of the '604 unified search patent would result in incremental liability (in the event that the patent is deemed valid and infringed at the end of the main proceeding including a jury trial and all appeals).

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Federal Circuit denies immediate stay of Galaxy Tab 10.1 injunction, no Nexus decision yet

[Update] Samsung subsequently won a temporary stay of the Galaxy Nexus ban. [/Update]

Samsung appealed both of last week's preliminary injunctions (the one against the Galaxy Tab 10.1 and the one against the Galaxy Nexus smartphone, which the Korean company co-developed with Google) to the United States Court of Appeals for the Federal Circuit. Simultaneously with notifying its appeals, Samsung asked Judge Lucy Koh of the United States District Court for the Northern District of California -- the federal judge who had granted Apple those preliminary injunctions -- to stay both injunctions pending appeal or, in the alternative, until the Federal Circuit decides on a stay. Judge Koh denied both motions to stay in their entirety (Galaxy Tab 10.1, Galaxy Nexus).

Earlier today, Samsung asked the Federal Circuit to stay both injunctions -- again, Samsung ideally wants those injunctions stayed pending the respective appeals, but it also asked for immediate stays pending the Federal Circuit's decision on a stay pending appeal.

The Federal Circuit has already ordered Apple to respond to both motions to stay no later than on July 12 (next week's Thursday): by noon (Eastern Time) for the Tab 10.1 and by 5 PM for the Nexus.

The appeals court's Motions Panel simultaneously denied Samsung's motion for an immediate stay of the Galaxy Tab 10.1 injunction without stating any reasons (presumably it was easy for the circuit judges to see that there isn't much harm to Samsung since the Galaxy Tab 10.1 is nearing the end of its shelf-life). Here's the key part of the order (click on the image to enlarge):

No decision has been made (at the time of original publication of this blog post) on the request for an immediate stay of the Nexus injunction. [Update] Samsung subsequently won a temporary stay of the Galaxy Nexus ban. [/Update]

I have not yet studied Samsung's motions in detail. At first sight, Samsung's arguments are the ones its lawyers already made in the Northern District of California. No surprise there so far.

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Galaxy Nexus ban remains in effect (for now), Apple posts $95.6M bond, Google stops selling

There are no surprises at this point with respect to Apple's U.S. preliminary injunction against the Galaxy Nexus.

At close of business on Tuesday, Judge Koh denied Samsung's motion to stay the injunction pending appeal or until the Federal Circuit has decided whether to stay. This was widely expected. Judge Koh previously denied a motion to stay the Galaxy Tab 10.1 injunction. Samsung still has the chance to persuade the Court of Appeals for the Federal Circuit to grant a stay, but it's not going to be easy. The Federal Circuit is also going to take note of the fact that Samsung infringed all four of the patents asserted in the motion for a preliminary injunction (even though Apple prevailed on only the Siri patent in Judge Koh's equitable analysis).

Having read Judge Koh's order denying the stay, I think she was quite underwhelmed by the strength of Samsung's appellate arguments. She went into quite some detail on Samsung's claim construction arguments and the related non-infringement and invalidity contentions. She didn't say much about Samsung's argument that the '604 patent covers an aspect of Siri, but cannot be equated to Siri since Siri, as a technology, includes a whole lot more than just the technique described by that one patent. Judge Koh continues to equate the two, and this part of the argument at the appeals court could become the most interesting one. Siri undoubtedly is a whole lot more than this one patent, but without this patent, it's hard to have Siri-like functionality as long as it's interpreted as broadly as in the injunction order.

After Judge Koh made her decision, Apple posted its $95.6 million bond (click on the image to enlarge):

I believe Apple could have done so even a day earlier but waited because the motion for a stay was pending. For Apple, getting a $95.6M bond issued is just as easy as getting a $2.6M bond (like in the Galaxy Tab 10.1 case): it can be done on any given business day. But the difference is that Samsung had already brought a motion for a stay over the weekend and I guess Apple didn't want to be presumptuous by posting the bond before Judge Koh's decision on a pending motion, even though I'm sure Apple didn't expect Samsung's motion to succeed anyway.

AllThingsD's Ina Fried reported on an interesting observation: Google has removed the Galaxy Nexus from its online offerings. It's still listed, but not described as being currently available. Previously, AllThingsD also reported on Google's announcement to push out a software update that will work around the preliminary injunction patent. The big question here is going to be how they will steer clear of infringement: since this is not a standard-essential patent, it's definitely possible to build a smartphone that doesn't infringe the '604 patent, but based on the court's claim construction, it's hard to see how a modified version of Android can still provide Siri-like unified search. Or to put it differently: unless Google removes the Siri-like unified search functionality altogether, we're in for an enforcement dispute, and the risk for Samsung would be to be found in contempt. Tough choices.

Today is Independence Day in the United States, but in the land of the free Samsung isn't free to sell the Galaxy Nexus, for now.

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Samsung appeals Galaxy Nexus ban and moves to stay the injunction

As expected, Samsung's lawyers worked hard to define their appellate strategy concerning the Galaxy Nexus injunction that was ordered on Friday afternoon Pacific Time. They just gave notice of their appeal to the Court of Appeals for the Federal Circuit and, like in the Galaxy Tab 10.1 case, filed a motion to stay the injunction for the entire duration of the appeal or at least until the Federal Circuit decides on a possible stay.

Here's the header of the notice of appeal (click to enlarge):

This is the text of the notice (dated June 30, 2012):

"NOTICE IS HEREBY GIVEN that Defendants Samsung Electronics Co. Ltd., Samsung Electronics America, Inc., and Samsung Telecommunications America, LLC appeal to the United States Court of Appeals for the Federal Circuit from the June 29, 2012 Order Granting Motion for Preliminary Injunction entered in the above-captioned action, and each and every part thereof."

In the following I'll quote the short versions of each of the appellate arguments. I'll change the capitalization to make the arguments easier to read) and comment on them item by item:

1. "The Court's finding that Apple will suffer irreparable harm was based on legally insufficient evidence that Samsung and Apple are competitors"

   That argument sounds preposterous if you look at the short version above. It's still pretty weak, but a bit less preposterous, if one reads the details of Samsung's argument. It comes down to saying that Apple cannot prove a loss of market share to Samsung.

2. "The Court's order is inconsistent with the Federal Circuit's directive that market share losses must be substantial"

   This is about raising the standard for the harm Apple must prove: Samsung says an injunction is only justified under Federal Circuit law if the market share loss to be suffered in the absence of the injunction is "substantial". Also, Samsung insists that this substantial loss must be attributable to the "infringing feature", not just the presence of the infringing product on the market.

3. "The Court's causation finding as to the '604 patent was erroneous, or at a minimum raises substantial questions"

   Judge Koh had based her theory of irreparable harm on the relevance of Siri to the market potential of Apple's products. Samsung now insists that Siri is "different feature than the unified search covered by the '604 patent". Here, Samsung wants the appeals court to define the scope of the '604 patent as narrowly as possible -- and that approach would actually be consistent with how Judge Posner approached Apple's patents, particularly the '263 "realtime API" patent, which he distinguished from the feature of video streaming.

4. "'People' and 'browser' are not infringing modules under the Court's construction"

   This appears to be a rehash of an argument Samsung already made in its opposition to Apple's motion for a preliminary injunction.

5. "The Court's infringement finding reads out the claim limitation of 'locating information in a network'"

   Same situation as in the previous case.

6. "The Court did not address Neal, which anticipates claim 6 under the court's construction"

   By "Neal", Samsung means a prior art reference: U.S. Patent No. 6,324,534 on a "sequential subset catalog search engine". This is also a rehash. It's clear now that Samsung's invalidity argument at the appellate stage is going to be centered around the Neal patent.

7. "There is at least a substantial issue regarding claim construction of the 'each' limitation"

   The question here is whether the search heuristics must be different between the various modules. It's a claim construction issue.

Judge Koh is not going to stay her injunction for the entire duration of the appeal, but she may do so until the Federal Circuit decides whether to stay.

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