With last week's wonderful Lexmark decision, the Supreme Court again turned out to be the guardian of sanity in the patent litigation context. Presumably in an effort to get earlier and ultimately more attention from the Supreme Court clerks evaluating cert petitions, Samsung yesterday filed (once agai well ahead of a deadline) an optional reply brief in support of its request that the Supreme Court review the Federal Circuit's en banc decision in the second Apple v. Samsung case (this post continues below the document):
17-06-05 Samsung Reply Brief Iso Cert Petition by Florian Mueller on Scribd
Obviously, Apple would like to avoid Supreme Court review and just get the most favorable outcome. In some cases, what's good for Apple is also good for the industry at large. Not so here. If the Supreme Court granted Samsung's petition from writ of certiorari, the outcome could have similarly positive effects as the recent Lexmark decision. (In the long run, that would also benefit Apple, which is a defendant in the vast majority of patent cases that it's a party to.)
Samsung's reply brief stresses the importance of the issues and particularly emphasizes that all three issues Samsung submits for review involve legal, not merely factual questions. At the end of the reply brief, it becomes clear that Samsung's short-term priority is the "quick links" patent, which the Federal Circuit patent held not to be infringed but the other circuit judges, in their controversial en banc decision, reinstated the district court ruling and jury verdict.
The Supreme Court will consider the petition at its June 22 conference.
Rather than go into more detail here (since I've already blogged about all of the issues and also this cert proceeding on multiple occasions), I'd like to point you to a great source of information: a YouTube video of a recent Public Knowledge Foundation conference in Washington, DC. Here I have some highlights from the event--select quotes from each of the panelists with a focus on (non-)obviousness, one of the three parts of Samsung's petition:
Ellen Schrantz, Senior Director of Government Affairs & Counsel, the Internet Association:
"What the Court essentially did was take a legal determination of obviousness and make it into a factual determination for the jury, and then just presumed that the jury resolved facts that it wasn’t even charged with solving in the first place."
"Given the speed which with the marketplace is moving and the complex issues across circuits and courts on obviousness as well as the very strange procedural history here of there not even being a briefing ahead of the en banc decision, this really is prime for Supreme Court consideration."
"By lowering the bar for non-obviousness, there's a real risk that patents will issue that don't deserve patent protection, that there will be additional litigation. And ultimately, it's the consumers that are going to bear the brunt of this because they will be subsidizing the litigation costs for innovators, and suffering as a result."
Carl Cecere, Attorney for the Hispanic Leadership Fund and the National Grange:
"You're asking the jury to evaluate the state of the art in technologies as diverse as biotechnology, space telescopes, and evaluate whether this is a step beyond what was already there."
"Deferring to juries creates a lot of problems. It runs the risk of allowing a lot of obvious inventions that may not be obvious to a jury, to be validated. It also runs the risk of invalidating some good inventions."
Derek Dahlgren, Attorney, Rothwell, Figg, Ernst & Manbeck, PC:
"By lowering the bar for non-obviousness, there's a real risk that patents will issue that don't deserve patent protection, that there will be additional litigation."
Matthew Levy, Patent Policy Consultant and former Patent Counsel at the Computer and Communications Industry Association:
"It's not just the twisting of obviousness law and it's not just trying to go back to the pre eBay injunction rule. It's this whole, the battle is really for what is patents going to cover? Are they going to cover what they say they cover or are we going to allow the conflation of the tiny with the entire thing?"
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