About 24 hours after denying (except for a minor part) Apple's motion for judgment as a matter of law (JMOL) following the spring 2014 Apple v. Samsung trial in the Northern District of California, Judge Lucy Koh has also ruled on Samsung's JMOL motion. While I thought Samsung had pretty strong arguments for overturning at least one of the liability findings (particularly by holding patents invalid), Samsung's motion has fared only slightly better than Apple's. The number of patents deemed valid and infringed (three) has not changed. What has changed in Samsung's favor is that the jury's finding of subjective willfulness in the past infringement (this stopped years ago) of Apple's slide-to-unlock patent has been rendered useless to Apple because Judge Koh found there was no objective willfulness, given that Samsung could have reasonably believed in its invalidity defense. With respect to the other patents, even the jury didn't identify any willfulness on Samsung's part.
Normally, with both parties' JMOL motions adjudicated, they could now appeal the case to the Federal Circuit. But in a separate order that just came down, Judge Koh asked the parties to comment on the bearing of Apple's recently-filed motion for postjudgment royalties on the question of whether a final judgment can be (or has been) rendered. In other words, it could take several more months before an appeal can be filed. In that case Judge Koh would likely try to convince Apple that it's better to make the postjudgment royalties decision after an appeal.
Judge Koh, unlike judges in other countries, appears impossible to convince that an Apple patent is invalid. While she has previously invalidated Samsung patent claims (also before the recent trial), she's never ruled an Apple patent invalid, despite many opportunities and very good reasons to do so.
This is due in part to Judge Koh's personal belief that defendants should not challenge patents through reexamination but instead be held liable for infringement even of patents that should never have been granted. She didn't express that belief the way I just summarized it, but that's what it comes down to. She could do a lot more for patent quality if she wanted.
But that's not the only reason why Apple fares infinitely better on the validity side in the U.S. than abroad. In Europe, every single one of Apple's patents-in-suit used against Android has been found invalid so far, and Apple was not even able to salvage a patent in an amended (narrowed) form, unlike other litigants such as Samsung (which salvaged two patents), Microsoft, and Motorola. There's only one European Apple patent-in-suit on which a final decision hasn't come down yet, and that's the rubber-banding patent, but the European Patent Office stated a preliminary opinion in July according to which that one is also invalid for lack of novelty over the prior art.
While the slide-to-unlock patent, which Samsung worked around years ago, is next to irrelevant in a strategic sense, it's still astonishing that Judge Koh upheld this patent after ten European judges in three countries unanimously invalidated the European member of the same patent family -- even more so when considering that the two most important prior art references, the Neonode N1m phone and the Plaisant research study, were admitted as prior art in the California case as well (as the JMOL order makes clear again). I can't understand how a judge can look at the Neonode and not conclude that Apple's addition of a movable slide-to-unlock image, when slide-to-unlock per se already existed, was obvious and anything but an advance of technology. While Apple was out of luck with Judge Koh as far as injunctive relief is concerned, it couldn't have found a judge who loves weak patents more than she does.
In the post I just linked to, I said "there's a difference between a breakthrough invention and a particularly great execution". Patents are all about the first. Sometimes it takes breakthrough inventions to enable a particularly great execution. Slide-to-unlock is not like that. As far as I can see, the "next big things" Apple presented yesterday (between Judge Koh's two JMOL rulings) are also more about execution than breakthrough inventions. At least I didn't see any hardcore technology there that Apple was first to come up with. It's putting existing technologies like NFC to use in ways that are obvious from a patent point of view (which doesn't mean that there wasn't a lot of thought that went into it). It's a nice idea to have a watch notify you that you've been sitting for an hour and should stand up, but a technological breakthrough is something else.
The way patent litigation works in the U.S. clearly favors Apple. Still it has been unable after all those years to gain serious strategic leverage.
The California juries found none of Apple's patents invalid, but key facts were withheld from them. Then Judge Koh hides behind the decisions that jurors reached on such a fundamentally-flawed basis.
The order points, as usual, to the limited significance of non-final rejections of patents in USPTO reexaminations. There have been cases in which those "rejections" really didn't mean too much. There are statistics according to which some examiners of the USPTO's central reexamination decision routinely reject all claims at the beginning just to challenge the patentee. But in the case of the autocomplete patent, the non-final rejection is more meaningful than usually. In August 2013, an anonymous reexamination requested was granted, and there was no initial rejection. It took a year until the patent claims were rejected. Will Judge Koh ever invalidate an Apple patent? She's consistently missed out on every opportunity. But the Federal Circuit may still decide differently.
Here's the public version of the order:
14-09-09 Order on Samsung's Motion for Judgment as a Matter of Law by Florian Mueller
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