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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