What's an invalid patent worth? As I noted at the end of my previous post on Samsung's appeal against a partial final judgment that would allow Apple to collect half a billion dollars over a set of patents including one the United States Patent of Trademark Office has held invalid, it should be worth nothing at all; actually, it should even have a negative value (an invalid patent is a non-material form of pollution). It appears, based on litigation results, that most patents in this industry are not valid in the form in which they were originally granted. Patent(ee)-friendly judges have a problem with that fact.
The United States Court of Appeals for the Federal Circuit is markedly patent(ee)-friendly, and it has just denied Samsung's request for a full-court review of a summary decision against Samsung's appeal of that partial final judgment. The document doesn't state any reasons:
15-11-19 CAFC Denial of Samsung v. Apple en Banc Petition by Florian Mueller
With the mandate scheduled to issue on November 30, I guess Samsung will have to make it clear pretty soon whether it will appeal further (i.e., to the Supreme Court). Its petition for a rehearing already looked very much like a petition for writ of certiorari. A cert petition appears more likely than not, and it will be very interesting to see which other companies support Samsung's position that a patent that has been held invalid not only by the Central Reexamination Division of the USPTO but also by a PTAB (in-house court) must not be enforceable at that advanced stage of the reexamination proceedings.
One could even ask the question of who will support Samsung on this one the other way round: who except for non-producing entities and companies with a stronger interest in patent monetization (in general or in certain markets) than in making products would seriously want to give any leverage to holders of invalid patents?
Long-term I don't even believe that Apple really wants this. It just wants it now, more than four-and-a-half years after bringing its first patent infringement lawsuit against Samsung.
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