Today Apple filed a "statement of recent decision" with Judge Koh's court in the Apple v. Samsung case that went to trial in the summer, with a view to the December 6 hearing on the parties' post-trial motions. Attached to Apple's notice is a copy of a Federal Circuit opinion, published yesterday, on Edwards Lifesciences v. Corevalve. That ruling supports Apple's remedy-related interests in three high-level respects:
The Federal Circuit upheld a district court's affirmation of a damages verdict by a jury, citing to a 20-year-old case, Brooktree Corp. v. Advance Micro Devices, in which the same appeals court held that "the jury's finding must be upheld unless the damages award is 'grossly excessive or monstrous,' clearly not supported by the evidence, or based only on speculation or guesswork".
Apple obviously wants a maximum level of deference to the jury, and considering the size of the litigants and the importance of the issues, I don't think the jury's damages award is "grossly excessive or monstruous". That said, there are some very case-specific issues about the Apple v. Samsung damages verdict. By this I don't mean the jury misconduct question, on which Samsung faces a high hurdle, but two other things. One, for almost all of the accused products it's absolutely clear how the jury arrived at its damages award. Samsung figured out the derivation, and when a long list of numbers is, with only one exception, consistent to the cent with the formula identified, there can be no reasonable doubt about how the jury arrived at its numbers. Unfortunately for Apple, disaggregation shows that the jury mostly decided to order a disgorgement of certain percentages of Samsung's profits. That approach is contrary to law with respect to the Galaxy Prevail and complicates Apple's pursuit of damages enhancements. Two, the jury provided only one damages figure per accused product, so if any underlying claim fails (for example, if one of Apple's multitouch patents-in-siut was deemed invalid), damages would have to be determined anew for each and every product that was found to infringe a given patent.
Still, the Edwards Lifesciences v. Corevalve decision at least serves as a reminder that jury verdicts on damages can be modified or vacated only if a high hurdle is met. But in that case, the Federal Circuit also denied to reverse a denial of damages enhancements, holding that it did not constitute an abuse of discretion. That part potentially helps Samsung.
The Federal Circuit opinion also highlights that injunctive relief is still alive. It's an equitable question under U.S. law and certain requirements have to be fulfilled, but the Edwards Lifesciences v. Corevalve decision sends out a message to district courts that even in the post-eBay v. MercExchange era, a patent is still a property right that can be used to exclude others from practicing an invention. Here are some quotes from the Edwards Lifesciences v. Corevalve decision:
"The innovation incentive of the patent is grounded on the market exclusivity whereby the inventor profits from his invention. Absent adverse equitable considerations, the winner of a judgment of validity and infringement may normally expect to regain the exclusivity that was lost with the infringement."
"The Court in eBay did not hold that there is a presumption against exclusivity on successful infringement litigation. The Court did not cancel 35 U.S.C. §154, which states that 'Every patent shall contain ... a grant ... of the right to exclude others from making, using, offering for sale, or selling the invention,' nor did the Court overrule Article I section 8 of the Constitution, which grants Congress the power to 'secur[e] for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.'"
Apple's lawyers were probably very happy to read those passages. Without a doubt, this is useful to Apple, but the same appeals court has also shown in its rulings on two Apple-Samsung decisions that it sets a relatively high bar where a patent covers only a limited part of a large, complex product. In Edward Lifesciences v. Corevalve, there was apparently more of a one-to-one relationship between a patent and a product than there is in connection with smartphones or tablet computers. And the case is also somewhat distinguishable since the patentee in that case was able to argue that it might be overwhelmed by its much larger rival unless the infringement is stopped. Apple obviously can't claim that Samsung is "much larger", though it is already outselling Apple in certain markets and market segments.
Another caveat: the Federal Circuit is quite deferential to the equitable decisions made by district courts. In the Edwards case, it did not reverse but merely remand a decision on injunctive relief. This is consistent with how it handled the Apple-Samsung preliminary injunction appeals it adjudicated this year.
The Edwards ruling also addresses the question of whether injunctive relief should be denied if an infringer claims that infringement will end. In Edwards it appears that the defendant actually kept infringing anyway. At a reasonably but not extremely high level of abstraction, this is similar to Samsung's argument that the existence of workarounds should dissuade the court from granting injunctive relief. In its reply brief Apple said that Samsung should not get to choose the point in time at which it will, if ever, stop infringing Apple's patents-in-suit. I agree with Apple that this would not be fair. In my view, the availability of workarounds should even weigh in favor of an injunction.
The Edwards decision comes at a critical juncture of Apple v. Samsung. The post-trial issues are fully briefed and Judge Koh will analyze them closely over the next few weeks.
There are some fairly important differences between Edwards and Apple v. Samsung, and it does contain some statements that could even be useful to Samsung. But all in all, it's a brand new Federal Circuit decision that warns against overestimating the hurdle for injunctive relief while reinforcing the notion that jury verdicts should normally not be touched. It may not be a silver bullet in all respects but it's a 6 out of 10, if not a 7 out of 10, in Apple's favor in the build-up to the important December 6 hearing.
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