updated 07:46 pm EST, Fri March 7, 2014
Apple likely to appeal portions as well, renew fight for product ban
With surprising speed, Samsung has now officially filed a notice of appeal over the final judgement in the first Apple vs. Samsung patent trial from 2012. The last ruling in the case was handed down yesterday, when Judge Lucy Koh ruled in Samsung's favor that sales injunctions on the products it was found guilty of infringing Apple patents with were not warranted in the interests of competition. Apple is likely to appeal that portion of Judge Koh's rulings.
In the original trial (and the limited damages retrial), none of Samsung's original counter-claims against Apple were given the time of day by the two juries in the case; all were dismissed due to prior art, while Apple won judgements against Samsung to the tune of nearly $1 billion in penalties against the Korean electronics firm (originally Apple was awarded just over $1.05 billion, but a portion of the damages was re-calculated in a juried damages retrial, with the result being $929 million instead).
Apple most recently argued before Judge Koh that the two victories on infringement charges against Samsung should entitle it to product bans on the infringing devices, even though none of the phones and tablets covered in the first trial are still available for sale. Had Judge Koh granted the sales bans, even though moot on those particular products, it would have sent a message to Samsung and other patent infringers that current products that are infringing patents may be more quickly pulled from the market in future cases.
However, Judge Koh has always been very resistant to product bans, and originally vetoed Apple's call for them immediately after the first trial. Apple appealed that decision and won a partial victory from the Federal Circuit, which ordered Judge Koh to reconsider her denial. In a hearing on Wednesday, Koh again denied Apple any sales injunctions on the infringing Samsung products, fearing that a ban would have a "chilling effect" on competition (as Apple and Samsung are, in effect, the only two profitable and competitive smartphone and tablet makers).
She also referred again to her concept that Samsung's infringements, while blatant, did not rise to the level of a "causal nexus" -- meaning that none of the numerous features Samsung copied were in and of themselves so compelling that they could be identified as the reason consumers bought one device or the other. Apple has objected to the "nexus" concept altogether, and complained that Koh has set the bar for product injunctions too high -- in effect allowing companies like Samsung to infringe on patents freely as long as they don't rip off such a distinct feature of a given device that it is considered a primary selling point. Thus, Apple is likely to file its own appeal of that particular ruling, particularly given the fact that the Federal Circuit also appeared to be skeptical of the premise.
Having had its own claims dismissed by two separate juries, been found guilty of willful infringement twice as well, there seems little chance that Samsung will do any better -- and could possibly even do worse -- in an appeal. Should the justices in the Appeals Court agree with Apple's (and numerous legal scholars') views that the "causal nexus" standard for sales injunctions is too stringent, Samsung could finish the appeal having lost even more ground in both damages and product bans.
There is, however, some hope for Samsung in the appeal as well. According to patent case analyst Florian Mueller, the Central Reexamination Division of the United States Patent and Trademark Office has since "rejected all claims of the '915 pinch-to-zoom API patent, Apple's most valuable multi-touch software patent in [the first case," forcing the iPhone maker to file and appeal, which is still in process.
While appeals on patents are often successful (Apple itself has won several reversals of challenged patents on appeal), there is a possibility that at some point in the next two years the entire patent will be invalidated. "Should the Federal Circuit share the USPTO's current perspective that the patent should never have been granted in the first place," says Mueller, "then there will have to be another retrial," since the original damages form in the first trial did not distinguish exactly how much of the award was assigned due to Samsung's copying of the '915 patent across the 20 products that infringed it.
The second patent trial between the two giants, scheduled to begin March 31 and covering an entirely different set of patents, is also not going well for Samsung in the early stages. In that case, which is also being overseen by Judge Koh, she has already agreed in pre-trial hearings with Apple's preferred version of claim construction, tossed out one of Samsung's five patents due to prior art (the company will instead press two claims from a different patent), and found Samsung guilty of infringing one of Apple's five patents (a fact that Apple will be allowed to bring up to the jury).