30 days after Samsung obtained an antisuit injunction against Huawei's enforcement of two standard-essential patent (SEP) injunctions granted by a Chinese court, Huawei filed an appeal and notified the United States District Court for the Northern District of California accordingly:
The above screenshot is from an automated notification email to those following the case, which is one of half a dozen cases on my N.D. Cal. watchlist. The text is the digital equivalent of a Freudian slip: it says "NOTICE OF APPEAL to the 9th Circuit Court of Appeals" (emphasis added)
Huawei's lawyers noticed this and, one hour and 15 minutes later, refiled the same document with a different description: "NOTICE OF APPEAL to the Federal Circuit"
Procedurally, this is an appeal to the Federal Circuit, based on the rule that any case involving at least one patent infringement claim must be appealed to the Federal Circuit, which, however, applies the law of the regional circuit in question if an issue is not about patent law in a strict sense (infringement, validity etc.). So in this case, the Federal Circuit will act as if it were the Ninth Circuit--or at least it will try to.
In my previous commentary on this antisuit injunction and the motion process leading to it I, just like Huawei's lawyers, mistakenly referred to how the Ninth Circuit would rule on it later, without stating more accurately that the Federal Circuit would have to wear the Ninth Circuit's hat.
The rule that the Federal Circuit rules on contract, copyright or whatever other law if a case involves at least one patent claim is applied very broadly. In Oracle v. Google, the patent infringement claims didn't get anywhere: Oracle didn't prevail on them at the first trial and focus exclusively on copyright (with tremendous success) thereafter. What the Federal Circuit applies equally broadly is the concept of ruling on non-patent legal questions under regional circuit rules. In fact, I'm aware of at least one case in which the Federal Circuit even applied a local rule, i.e., a procedural rule, in a similar context.
Huawei's notice clarifies that a motion asking Judge William H. Orrick to alter or amend the injunction decision remains pending with the district court regardless of this Ninth Circuit appeal to the Federal Circuit.
That motion focuses on two issues, and those are going to be the two pillars of Huawei's appeal:
Huawei argues that the U.S. case wasn't actually the earlier-filed one (by just the calendar date, but still) relative to the Chinese actions. Huawei says the U.S. case became dispositive of the injunctive-relief question in the Chinese case only after Samsung brought its counterclaims. Judge Orrick was obviously aware of the procedural history when he made his decision last month.
Judge Orrick has also disagreed with Huawei on its second appellate argument. It's about the Ninth Circuit's statement in a Microsoft v. Motorola opinion that the Gallo test for antisuit injunctions matters in this specific context, while Huawei says Samsung has to satisfy both the Supreme Court's Winter preliminary-injunction factors and the Gallo test for antisuit injunctions. Again, this is not new. It would be surprising if Judge Orrick changed mind on a legal question he's already resolved--and the Federal Circuit will, in this case, apply Ninth Circuit law, too, though Huawei will foreseeably urge it to do the opposite.
As Huawei's corrected filing shows, the "circuitry" of the procedures involved is tricky, but let's not lose sight on the overarching policy issue. The key policy issue is injunctive relief over standard-essential patents while the underlying contract and/or antitrust issues are being resolved. The Ninth Circuit has been very clear on this in Microsoft v. Motorola (even twice as it ruled on a preliminary injunction and, later, on a final judgment under which then-Google's Motorola was held to owe Microsoft damages). The Federal Circuit will decide Huawei v. Samsung in light of, and in deference to, Microsoft v. Motorola. As for the policy issue of SEP injunctions, the Federal Circuit largely agreed with Judge Posner in an Apple-Motorola case.
It would be extremely surprising if Judge Orrick altered his decision, given that he knew what he was doing when he took his first decision, and that he had heard and/or read the same arguments before. As for the Federal Circuit ruling on this case, Huawei would obviously prefer the Federal Circuit to make its own law, but here it will be an Acting Ninth Circuit. While anything can happen, Ninth Circuit precedent favors Samsung. Even if one agreed with the second pillar of Huawei's position, I can't see why even the traditional Winter preliminary-injunction wouldn't weigh in favor of the injunction that was granted.
As for political/diplomatic implications (also called "international comity"), it's actually a positive thing for Samsung in this case that it's not a U.S. company. In some other cases, such as Apple v. Samsung, it would benefit from it, but in this dispute with Huawei and in times of "trade war," it's a good thing that this is a dispute between foreign companies--and let's not forget that the Northern District of California was Huawei's venue choice when it brought its cross-jurisdictional complaints.
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