Today Apple filed its opposition to Samsung's motion for a swift remand of the Galaxy Tab 10.1 preliminary injunction to the district court, following Judge Koh's indicative ruling that the jury verdict, which did not hold Samsung to infringe the D'889 tablet design patent on which the sales ban is based, raised a substantial question. Apple points to a recent criminal case in which a circuit court (in that case, the United States of Appeals for the Eighth Circuit) "denied a similar request for remand despite an indicative ruling that the criminal defendant's motion to adjust his sentence raised a 'substantial issue,' and that the district court would apply a new sentencing approach if the case was remanded".
In order to have the Galaxy Tab 10.1 ban lifted, Samsung needs a remand, and it needs a quick one since Judge Koh indicated that the longer it takes, the more she'll be inclined to firstly decide on Apple's Rule 50 ("overrule-the-jury") motion. (I looked at both parties' Rule 50 motions and commented on them in this recent post; click here to go directly to the part on design patent infringement).
When Judge Koh denied Samsung's request to stay the injunction a few months ago, she referred to Samsung's statements on the absence of major harm, for example, "that 'sales of the accused Galaxy Tab 10.1 will soon fall to zero' because it is near 'the end of its product lifecycle,' and that the injunction would not have 'a significant impact' on its business since 'the successor model to the Galaxy Tab 10.1 is already on the market.'" Apple's brief today notes that Samsung wanted to have those passages redacted, but Judge Koh decided that these should be in the public record.
On July 1 I already pointed to Samsung's public statements and how they contradicted its motion for a stay. Those statements are now held against Samsung once again, and if Apple can dissuade the Federal Circuit from a quick remand of the case to Judge Koh, Samsung's position of there being no serious harm would likely be a key factor.
I continue to be underwhelmed by Apple's argument that the jury found the Galaxy Tab 10.1 to infringe three software patents, so it may have to be banned one way or the other. Injunctions don't declare entire products illegal -- the question is always how much it takes to work around them. While those software patents (especially collectively) are strategically more important than the tablet design patent, Samsung and Google have had a lot of time since the filing of the lawsuit to develop a workaround, and changing the software is easier than modifying the casing of the product.
Apple argues that it's fighting for a judgment as a matter of law (JMOL) not only with respect to the D'889 patent but also with respect to its tablet trade dress. While it's never easy to get a part of a jury verdict overruled, I actually think this is a stronger point than the one concerning the three software patents (with respect to which Samsung faces the Rule 50 hurdle). That's because an effort to design around the D'889 design patent would be comparable to, and overlap in important parts with, what is needed to work around the related trade dress.
I have said before that I believe the Rule 50 stuff should be resolved, and in my view, the Rule 50 briefing concerning the D'889 patent should simply have been put on a faster schedule in light of the existing preliminary injunction. But since that wasn't done, the question is now whether the Federal Circuit will remand the case and, in Apple's words, "give Samsung a windfall of over two months of infringing sales that this Court and the district court have already held will cause Apple irreparable harm".
Interestingly, the situation in the U.S. proceeding has some striking parallels with the one in Germany, where Apple also won a preliminary injunction (originally based on a European equivalent of this design patent, and later on the basis of unfair competition law) but is on the losing track after today's trial. In Germany, like in the United States, the preliminary injunction remains in force for now. I would expect Samsung to move once again for a stay in Germany, but since Samsung has been selling the modified and court-approved Galaxy Tab 10.1N for some time, there's even less of a commercial need to have the German injunction stayed than in the United States. In both jurisdictions, it doesn't really matter too much whether this relatively old product can still be sold in the months ahead. It's all about who will be in a stronger position with a view to the next steps.
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