In February, Apple brought a second motion for a U.S. preliminary injunction against Samsung, targeting the Galaxy Nexus with four of the eight patents asserted in a new federal lawsuit. Samsung has meanwhile brought counterclaims (in the regular proceedings, not on the fast track dealing with the preliminary injunction motion) over eight patents of its own.
Just like Apple's second motion for a preliminary injunction reflected careful efforts to avoid repeating tactical and substantive choices based on which the same federal judge, Judge Lucy Koh, denied Apple's previous motion for a preliminary injunction last year, Samsung is trying to replicate its success in fending off Apple's push for a US-wide sales ban by claiming that Apple's new motion has the same kind of alleged shortcomings.
While both parties tried hard to tailor their initial pleadings to Judge Koh's previously-stated positions and priorities, it's important to consider that the legal requirements for a preliminary injunction involving these two players could change in the months ahead due to Apple's ongoing appeal of the decision to the Federal Circuit. If the Federal Circuit changes anything, it's unlikely to be helpful to Samsung because Judge Koh's ruling was extremely defendant-friendly. I continue to believe that Apple may very well achieve at least a partial success with its appeal that would shift the goalposts in favor of its new motion (provided that the appeals court decides soon, but I think it will, and a hearing has already been held).
At the start of its brief, Samsung makes reference to the famous "willing to go thermonuclear war" quote and then says that Apple's new motion is (without using those words) the result of copy and paste of large parts of the previous one, a claim that Samsung bases on Apple's renewed allegation that Samsung "has systematically copied innovative technology and products, features and designs", while design-related rights are not at issue in this new lawsuit, unlike the previous one. I don't think the reference to "designs" was a copy-and-paste oversight. Even though Apple's new lawsuit is focused on technical features, the fact that the design of Samsung's flagship products is very similar to that of Apple's products is relevant context for the overall competitive situation between the two companies and the question of irreparable harm. If what Apple says about Samsung's competitive approach was true in 2011, it's also true in 2012.
Samsung's opposition makes an elaborate argument against Apple's infringement claims and against the validity of the asserted patents. But last time, Samsung's defenses against those kinds of claims succeeded only in part, and what saved the day for Samsung was, for the most part, Judge Koh's doubt about a clear nexus between the presence of Samsung's accused products on the market and any harm (which she also doubted at least in part) Apple alleged. Apple has tried to improve its "nexus" story in the new motion targeting the Nexus phone. In an effort to convince Judge Koh once again of the absence of such a nexus, Samsung talks about how Apple's financial position, market capitalization and market share have grown. In her decision on the previous preliminary injunction motion, I felt that Judge Koh partly applied an incorrect market definition, and the idea that a company that is doing fantastically well despite infringement of its intellectual property has to tolerate it until it's going down to the tubes struck me as a problematic approach that the Federal Circuit might disagree with.
I think that Apple does have a better "nexus" story than last time, and Samsung's attempts to raise the bar for the evidence that Apple needs to present are understandable but there will have to be a reasonable limit as to the extent to which Apple must prove, for instance, that particular patented features such as slide-to-unlock drive sales. The actual threshold is probably pretty much in the middle between what Apple provided last time and where Samsung would like to set the bar now.
In the irreparable harm context, Samsung provides (sealed) copies of multiple patent license agreements that Apple signed in the past. Last time, Judge Koh appeared to be fairly receptive to the argument that Apple's willingness to grant licenses to certain patents suggested that monetary compensation should be sufficient.
Even though Apple was much faster with this preliminary injunction motion (relative to the filing of its complaint and the age of most of the patents involved) than last time, Samsung still argues that there was a major delay. The "data tapping" ('647) patent was issued in 1999 (but in my opinion, the continued infringement of the patent by Android devices after the ITC found HTC in infringement last December is a reasonably good argument in favor of a preliminary injunction). The Quick Search ('604) patent and the new slide-to-unlock ('721) patents were granted more recently, but Samsung notes that they are continuations of older Apple patents, and Samsung says that Apple could have brought charges based on the older generations of those patents against Samsung for years (for slide-to-unlock it did so in Europe, and Samsung is right that Apple didn't win anything against Samsung with its older slide-to-unlock patent there, though it did against Motorola). At any rate, a continuation patent can change the situation. A continuation patent may be infringed while a previous one wasn't. I think the timeliness argument is not the strongest point Samsung makes.
There is also some public interest argument, claiming that Apple would get to monopolize the market if it succeeded in enforcing its patents. I guess we'll also see public interest submissions by third parties, as we did last time. But technical issues concerning validity and infringement and the irreparable harm part will be the primary battlefields, with everything else being much less likely to tilt the scales.
Just a few comments on Samsung's argument against the merits of Apple's claims:
The "data tapping" ('647) patent that won Apple an ITC import ban against HTC (which HTC worked around and appealed) was recently interpreted by a legendary judge, Circuit Judge Richard Posner, and Samsung's opposition brief points to his, potentially narrower, construction of that patent. However, in the lawsuit in the Northern District of Illinois over which Judge Posner is presiding, Motorola failed with a motion for summary judgment of non-infringement that it brought after the aforementioned claim construction order. Two weeks ago, Judge Posner wrote the following:
"Any argument for summary judgment of noninfringement based on the timing of the linking in the Android system compared with the '647 system is beyond the limited scope of this summary judgment round, as my '647 claim construction didn't interpret any issues of timing."
In terms of prior art, Samsung presents the same references with which HTC failed at the ITC (the Newton Programmer's Guide, Sidekick, and a 1995 patent application by an inventor named Pandit).
For the Siri-style quick search ('604) patent, Samsung cites the Wide Area Information Server protocol and U.S. Patent No. 6,005,565, a Sony patent on an "integrated search of electronic program guide, internet and other information resources", as prior art. Samsung holds against Apple the broad claim construction it proposes (and which Samsung challenges). Samsung furthermore claims that Apple's infringement allegations aren't sufficiently specific.
I think the battle over this patent will be very interesting. Samsung argues that Apple "Apple did not invent those functions, it claims only to have invented specific implementations of those functions". But the Siri-related patent may have just the right breadth for Apple to succeed.
Against the new slide-to-unlock ('721) patent, Samsung's invalidity argument primarily relies on the combination of two prior art references that were discussed in detail at two related Mannheim trials, a 1991 video and paper on "Touchscreen Toggle design" by researchers Catherine Plaisant and Daniel Wallace, and a Swedish phone named Neonode N1m (which also served Samsung well in the Netherlands).
Samsung's primary arguments against non-infringement are that the unlock image on the Nexus does not move "continuously" -- Samsung says it's "inherently discontinuous" -- and that there is no single "unlock image":
"The Galaxy Nexus has two images. The initial image displayed on the lock screen is a padlock in a small circle. When the user touches the screen, that image disappears and is replaced by a different image of a larger, empty circle. [...] The first image does not move; only the second image moves with user contact."
In my opinion, Apple's patent department did a great job optimizing the new slide-to-unlock patent to counter many of the arguments that might have worked against the previous one. But Samsung, in conjunction with Google, also did a great job designing the slide-to-unlock mechanism of the Galaxy Nexus so as to steer clear of infringement. If I were the judge, having looked in more detail now at how the slide-to-unlock circle of the Galaxy Nexus works, I would probably come down on Samsung's side on this one. I think the new slide-to-unlock patent is useful to Apple in order to ensure differentiation since it really forces Android device makers to implement rather distinguishable slide-to-unlock mechanisms, but after some further analysis I have serious doubt that the slide-to-unlock circle infringes it.
Samsung also disputes the validity and its alleged infringement of the word recommendations ('172) patent. Based on my initial analysis, I think Samsung needs to defeat this one on validity rather than infringement, unless the redacted part of Samsung's non-infringement argument is surprisingly convincing.
Samsung's primary prior art references against this patent include U.S. Patent Pub. No. 2006/0274051 and the related U.S. Patent No. 6,801,190 as well as the "TextPlus for the Palm OS Version 5.5 User[']s Guide" and U.S. Patent No. 5,953,541 on a "disambiguating system for disambiguating ambiguous input sequences by displaying objects associated with the generated input sequences in the order of decreasing frequency of use".
In light of Apple's motion and Samsung's opposition brief, I think it's unlikely that Apple's motion will fail entirely as its predecessor did. I think the most lkely outcome is that Apple will prevail with respect to one or two patents.
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