Ten days ago, the United States Court of Appeals for the Federal Circuit granted summary affirmance (i.e., summary judgment at the appellate stage) of Judge Koh's decision to let Apple collect $450 million from Samsung (against a bond posted years ago) even though one of the patents underlying the related ruling had been held invalid by an in-house court (PTAB) of the United States Patent and Trademark Office. The appeals court said its mandate would issue absent a petition for rehearing within seven days, and within that deadline, Samsung indeed filed its petition (this post continues below the document):
15-10-19 Samsung Petition for en Banc Rehearing by Florian Mueller
I predict denial of this petition, not because it would be a just outcome but simply because even Chief Judge Prost, who has a more balanced position than some of her colleagues on certain issues (above all, injunctive relief), apparently (she wrote the summary affirmance decision) agrees with Apple on this one. In order to get an en banc rehearing, Samsung needs support among Federal Circuit judges that will be hard to come by.
I can't read Samsung's lawyers' minds, but I am free to draw conclusions from what they write and how they write it. The above petition stresses Supreme Court precedent and circuit splits (divergent decisions taken on an issue by different appeals courts). Other en banc petitions I've seen were much more focused on conflicts between different decisions by the same appeals court (for example, when Apple wanted an injunction appeal to be heard by the full court in the first place). Supreme Court precedent always matters, of course, but circuit splits are usually front and center in petitions for writ of certiorari (requests for Supreme Court review). I'm not saying that circuit splits are not an argument for an en banc rehearing. It's just the relative weight of these kinds of arguments that is markedly different in this petition from the other petitions (not only but also in Apple v. Samsung cases) I've seen.
Now, this is admittedly a different situation from the other ones: here, the summary affirmance decision just said that there was no debate over the outcome, but it did not provide any particular reasoning. There was nothing in the decision that specifically referenced Samsung's argument. Therefore, Samsung's lawyers don't have as clear as target to point at as they would have if there had been a reasoned decision.
Still, I can't help but wonder whether Samsung's lawyers might be just as "optimistic" about this petition as I would be if I were in their shoes. Have they already given up on the Federal Circuit and already begun to make a case for a Supreme Court review? I don't know. All I know is that I've never seen a petition for a Federal Circuit rehearing that looked so much like a cert petition. It's not an unusual communication pattern that A writes or says things to B that are actually directed at C. I've seen court filings that were directed at the court of public opinion more so than the court of law. That's not the case here because the related legal argument is not the kind of stuff that gets the general public interested--even I'm not going to go into detail on the case law for now. Here, the actual recipient C can't possibly be the court of public opinion. But the Supreme Court, which will see this document in the event of a petition? To me, that's at least a plausible theory.
It's like a primary candidate focusing on arguments that suggest he's already looking past the primaries and toward the general election.
I currently see four or five cases (need to do some more research one of these days) to which Apple is a party that have the potential to go all the way up to the SCOTUS because of the issues. Design patent remedies, injunctive relief, partial summary judgment over invalidated patents, the royalty base (a context in which I hope Apple will defeat Ericsson because it will discourage outsized royalty claims over standard-essential patents), and possibly some procedural issues concerning the interplay of infringement cases and FRAND contract cases in different venues.
Compared to these big issues, the WARF v. Apple case is not interesting at all. The most interesting issue in that one was actually whether a university patent troll can be called a patent troll. Unfortunately the court didn't allow Apple's lawyers to tell it to the jury like it is. Other than that, the case is about nothing that makes a difference to anyone in the world other than WARF and the lawyers working on that particular case.
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