A week after Judge Lucy Koh ordered further briefing and scheduled a case management conference for April 29, Apple and Samsung made certain filings late on Tuesday. I have previously discussed the issues involved and will focus in this post on two things that Samsung said and on how Apple defends the idea of a damages-only retrial.
Appealability of March 1 damages order
This was the final sentence of the penultimate paragraph of Judge Koh's March 1 damages order:
"The parties are encouraged to seek appellate review of this Order before any new trial."
But Apple and Samsung agree that this order cannot be appealed. They agree even though their interests are different: Apple wants a new trial before an appeal, and Samsung wants an appeal, but it believes that more homework -- in the form of the partial final judgment Samsung is seeking under Rule 54(b) -- is needed. Unless these parties are both wrong (which is unlikely given the quality and quantity of their resources), Judge Koh made a suggestion that she had not fully thought through.
Samsung cites several reasons for which "[t]he March 1 Order [...] is not appealable insofar as it vacates damages and orders new trial as to those 14 products":
The damages order isn't appealable as a final ruling.
It's not even "final except for an accounting".
The option of an interlocutory appeal is reserved for other types of decisions (for example, decisions on injunctive relief).
In all fairness, this huge and complex case would be a challenge for any court. The March 1 damages order was just one of the post-trial decisions Judge Koh had to make, but probably the most time-consuming one. With all of the effort that went into this, it's possible that she didn't research in detail what the requirements for an appeal to the Federal Circuit would be. But there's also the issue of alleged errors concerning two products. With respect to one of them, the Galaxy S II AT&T, Samsung can't even defend what the court did but bases its argument in no small part on the fact that a "manifest error" is a higher hurdle than a "clear error".
At the April 29 case management conference Judge Koh might encourage the parties once again to settle. That would certainly simplify everything. But as long as they don't settle, the courts have to provide more guidance. Unerring guidance.
Samsung reiterates request for stay pending reexaminations
Samsung predicts that the ongoing reexaminations of the rubber-banding and pinch-to-zoom API patents "will likely conclude in 18 months or less" as far as proceedings before the United States Patent and Trademark Office (including its Patent Trial and Appeals Board) are concerned. But there can always be remands, and final USPTO decisions are appealable to the Federal Circuit.
Samsung points out that six years ago Apple also sought a stay of a case (brought by an individual inventor named Ho Keung Tse) pending reexaminations. In that case, Apple was represented by the same Morrison & Foerster partners as in the dispute with Samsung, and Quinn Emanuel's Charles Verhoeven, now Samsung's lead counsel in the dispute with Apple, represented two of Apple's co-defendants supporting the motion, Napster and Real Networks.
Samsung says the scope of the stay it seeks is limited (it's just about the new trial) and that "Apple's appeal of the Court's injunction order and litigation over Apple's claims that have become final will move forward promptly". The appeal of the denial of an injunction is really key. Apple obviously wants an injunction and damages, but the injunction appeal is strategically more important, beyond the Samsung dispute. The Federal Circuit's opinions on two preliminary injunctions Apple previously won (against the Galaxy Tab 10.1 and Galaxy Nexus) have set the bar very high -- almost insurmountably high -- for Apple and others to obtain injunctive relief for patent infringement even by direct rivals. As long as Samsung believes that Apple can't obtain impactful remedies, it probably has little incentive to settle on terms palatable to Apple. And for Apple, it's not just about the dispute with Samsung, though this is the most important one for the time being. It needs better access to injunctions to discourage other industry players from intentional copying. No settlement can have that effect because it doesn't bind the rest of the industry. What Apple needs is a new Federal Circuit opinion that clarifies or corrects the previous ones on this issue.
Apple says Samsung asked for a new trial on damages, can't ask for more now
Apple obviously opposes Samsung's demand that a new jury reevaluate not only certain damages awards of the first jury but also the underlying liability findings (infringement, validity, etc.). Samsung argues that it's entitled to a retrial on the merits under the Seventh Amendment. Apple says that damages-only retrials, such as in Uniloc v. Microsoft, are definitely possible, and it says Samsung can't ask for more than it originally did:
"Samsung's request was crystal clear: 'The Court should vacate the award and grant a new trial on damages.' [...] The Court did exactly that, ordering 'a new trial on damages' for specified products. [...] Samsung now seeks to expand its request, claiming 'a right to a new trial on liability and damages for products that will be the subject of the new trial.' [...] But Samsung must accept the consequences of its litigation strategy; it cannot now change course to seek a different remedy after having received the remedy it sought."
The next filings on case management issues will be due on Tuesday, April 16.
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