Federal Circuit offers Apple Second Chance to Block Sales of Samsung Galaxy Nexus Devices

By Dennis Crouch

Apple Inc. v. Samsung Electronics Co., Appeal No. 2013-1129 (Nov. 18, 2013)

In a unanimous opinion, the Federal Circuit has vacated Judge Koh’s decision denying Apple injunctive relief to stop Samsung’s ongoing infringement of Apple’s utility patents. These utility patents cover software features such as the “bounce-back” feature for scrolling; a multi-touch display for distinguishing between single-finger actions and multi-fingered actions such as “pinch-to-zoom”; and a “double-tap-to-zoom” patent. See U.S. Patent Nos. 7,469,381, 7,844,915, and 7,864,163. The appellate panel affirmed the finding of no irreparable harm (and thus no injunctive relief) for Samsung’s adjudged infringement of the related design patents and trade dress.

Injunctive relief requires a showing of irreparable harm due to ongoing infringement. In a prior Apple case (Apple II), the Federal Circuit explained that this showing can be broken-down into a two part requirement of “(1) that absent an injunction, it will suffer irreparable harm, and (2) that a sufficiently strong causal nexus relates the alleged harm to the alleged infringement.” Apple II. Following the jury determination of infringement, District Judge Koh held hearings on injunctive relief and found that Apple failed to prove a causal nexus. On appeal, the Federal Circuit partially rejected Judge Koh’s analysis – finding basically that Judge Koh had set-up the causal nexus test as too-difficult of a hurdle. In particular, the appellate panel determined that (1) ongoing infringement can be seen as the cause of irreparable harm even of not the sole-reason for the harm; (2) in considering irreparable harm a court should consider all of the infringed patents and patent claims rather than looking at each patent or claim one-at-a-time. See also, Apple I.

On remand, the district court will reconsider Apple should now be awarded injunctive relief. The Federal Circuit has been somewhat demanding on Judge Koh. Originally, Judge Koh had granted injunctive relief, but that award was rejected because Koh did not consider the new causal nexus requirement. Now, the her opinion denying injunctive relief has been rejected for placing too much emphasis on the causal nexus requirement.

In general, this case should be seen as relaxing the test of injunctive relief and will have its greatest impact in markets such as the smartphone market where devices include a large number of features and where market players have a large variety of patents covering those features.

Cases:

  • Apple III (This Case): Apple Inc. v. Samsung Elecs. Co., __ F.3d__ (Fed. Cir. 2013)(Prost, J.);
  • Judge Koh’s Decision reversed here: Apple Inc. v. Samsung Elecs. Co., 909 F. Supp. 2d 1147 (N.D. Cal. 2012);
  • Apple II: Apple Inc. v. Samsung Electronics Co., 695 F.3d 370 (Fed. Cir. 2012); and
  • Apple I: Apple Inc. v. Samsung Electronics Co., 678 F.3d 1314 (Fed. Cir. 2012).

20 thoughts on “Federal Circuit offers Apple Second Chance to Block Sales of Samsung Galaxy Nexus Devices

  1. Wow I spoke with a London atty., but he was really a fake at the USPTO. I found that out because I *69 to call him back. Another big chapter in my story. I am pretty sure that is wire fraud

  2. Quick off-topic heads up. I’m doing the CPC training these days and they appear to have decided to just go with what is nearly the IPC. Frankly it is just about the most reta rded classification system that someone could come up with and not be a complete fo ol. It seems like something a first grader came up with on his first try. For example. Drill bits are classified with “rock drilling” because, and I quote, “it is a device for drilling rock”. I guess the fact that they’re also for drilling anything (wood, plastic, metal, etc) else just doesn’t factor into their ingenious classification system.I hasten to add that this appears to be an arena that the US could lead the world in, rather than following in their completely off the wall tracks from the FRAKIN 70′s.And to make matters a little bit worse, they use ridiculous language. Such as a “car parking” for a parking garage/deck. Though that’s far from all examples that I’ve been treated to just in the past hour.

    1. Their justification for sticking computers/computing in with physics? “Well, remember that the sections were created years ago and technology (computing in particular) has evolved greatly since then”Lulz. Pathetic. A pathetic excuse for a pathetic classification scheme.

  3. a multi-touch display”Multi-touch displays” pre-date all of the patents in this case. Apple wishes to pretend that it can use the patent system to somehow declare its ownership of certain “responses” to signals that are received by old “multi-touch displays.” For example, a “pinch” signal could be defined to mean “zoom the image on the screen”. Or it could be defined to mean “send an email to Grandma because her favorite color of tattoo ink just went on sale at Skinpaint.com”. Or the computer could be taught to interpret the signal as an instruction to blow itself up. Or any of a gadzillion different things that Apple or your average six year old could dream up. Those meanings are all equally abstract and obvious (in view of the prior art screens) and incapable of being “owned” by some silly corporation whose in-house attorneys have nothing better to do (apparently) except slide pork to their patent prosecutor and litigator friends outside.

  4. “ongoing infringement can be seen as the cause of irreparable harm even of not the sole-reason for the harm”Am I reading this wrong or are they basically just trying to work their way back to pre-ebay? Do the supremes have to get involved once again?

    1. Nevermind, it turns out upon further examination that the only problem in this decision is that the court doesn’t understand basic econ. “Moreover, we see no reason why, as a general matter of economics, evidence that a patented feature significantly increases the price of a product cannot be used to show that the feature drives demand for the product.”Or course, as a “general matter of economics” increases in the price do not necessarily equal an increase in the demand. Holding that they do would be a simple logical error. Increases in what is being charged for a device in no way reflects what the ultimate effect on the demand the feature leading to them charging more will have. But then, considering the good judge’s edumacations, I don’t expect any better from them. “The question becomes one of degree, to be evaluated by the district court.”Actually it becomes more than one of simple degree. “Here, the district court never reached that inquiry because it viewed Dr. Hauser’s survey evidence as irrelevant.”Mhmmm, because he probably does understand basic econ :(Oh well, at least the supremes probably don’t need to get involved. Just a routine case the CAFC made a mess of due to their ignorance of basic econ. Who knows, perhaps the distict court will sort this all out and show why the evidence was irrelevant in their next opinion. All’s well that ends well.

      1. You should read the quoted sentence again. The court did not say that increases in price “necessarily” equal increases in demand. What they said was that evidence purporting to show that the patented feature actually drove an increase in price is relevant to the question of whether the feature drove demand. That is certainly true – all else equal, the supplier can’t charge more for the widget with the extra feature unless there is demand for that feature.

        1. “You should read the quoted sentence again. The court did not say that increases in price “necessarily” equal increases in demand. What they said was that evidence purporting to show that the patented feature actually drove an increase in price is relevant to the question of whether the feature drove demand.”It isn’t relevant enough to make a hill of beans by its lonesome or with the other evidence. Thus the tossing as irrelevant was no abuse of discretion, as it is, in fact, irrelevant at this particular juncture. But fine, fine, let him consider it. Then he can “weigh” it in at .000000000001 and they can lose anyway. I liked Apple’s arguments though. This is that case that was concieved by Steve Jobs before he died where he vowed to shut them down for “copying” right?

          1. All it is going to take, is emailing and phoning from another source.. got it. Please don’t remove my emails. You already stated who I was Mr. Guttag and Mr Red Hat Egan

        2. evidence purporting to show that the patented feature actually drove an increase in price is relevant to the question of whether the feature drove demand.Hmm. It seems to me that “the evidence” either shows that a feature “drove demand” (in which case “the evidence” is relevant to the question) or it doesn’t show that (in which case “the evidence” is not relevant to the question).But the mere fact that a company increased the price of a device after incorporating a patented feature shows nothing at all. Sales stayed the same after the price increased? Again: that’s evidence that people didn’t despise the patented feature (although hardly proof of even that). As Apple knows very well, you can convince a lot of people to buy a lot of junk with some carefully placed and well-conceived advertising.If Apple wants to show that a feature “drives demand”, it needs to provide far, far more information than “we increased our prices.”

          1. “Hmm. It seems to me that “the evidence” either shows that a feature “drove demand” (in which case “the evidence” is relevant to the question) or it doesn’t show that (in which case “the evidence” is not relevant to the question).”I don’t know what you mean by “show,” but yes, if evidence tends to make a fact more likely (even a little bit) then it’s relevant. That’s the definition.You’re mostly talking about persuasiveness. But if the seller is actually able to command a higher price for a product with the feature, then of course that is relevant evidence, for those basic economic reasons that 6 got confused about. “Relevance” and “proof” are not the same thing. You’re perfectly free to rebut that evidence with evidence about “carefully placed and well-conceived advertising.” And you could probably convince me. But the judge can’t exclude the evidence just because he doesn’t find it persuasive.

            1. “You’re mostly talking about persuasiveness. But if the seller is actually able to command a higher price for a product with the feature, then of course that is relevant evidence, for those basic economic reasons that 6 got confused about.”Um no. He’s not mostly talking about persuasiveness. He’s talking about relevance. And as to me, I have a bit of econ under my belt. Both learnin’ and I’ve run countless of these little “war games” in classes. And you never, ever, ever, presume that just because you were able to command a higher price and make the same amount of sales that demand went up. You may very well lower the price the next week back down and sales still stay the same even with your new feature. And thats because dum dum dun, demand didn’t in fact change. If you do happen to assume that demand went up then you will be more likely to make a costly mistake in making your pricing decision for the next time period and you will be more likely to not maximize your revenues.

            2. “And as to me, I have a bit of econ under my belt. Both learnin’ and I’ve run countless of these little ‘war games’ in classes.”That’s awesome,6. Come back when you have a bit of the law of evidence under your belt. It’s been pointed out before that you don’t know as much about it as you think you do. But that’s OK – it’s complicated stuff.

        3. Actually LB, this is what I was forgetting about yesterday. In re to your “That is certainly true – all else equal, the supplier can’t charge more for the widget with the extra feature unless there is demand for that feature.”That is most certainly not necessarily true. The price elasticity of demand may well be 0 for this particular regime of prices with regard to these devices. link to en.wikipedia.org…Price elasticities (both supply and demand) of 0 for certain regimes in the price scale are not uncommon. Especially for higher priced merchandise. Thus the evidence they have is completely irrelevant without more. But as I noted before, it’s fine, the case will still most likely go the other way.

          1. That sounds like great rebuttal evidence, 6. But you’re confusing “relevant” with “convincing” or “rebuttable.” It might very well be that the price elasticity of demand for this particular product is zero, and the other side can certainly introduce evidence to that effect if they can find it. But the point here is that the judge doesn’t make this call by excluding the pricing evidence. The pricing evidence goes in front of the fact-finder, along with any rebuttal evidence.

            1. First of all it isn’t rebuttal evidence at all. It is simply a showing of why the evidence of record cannot possibly estabilsh what they want it to establish. Basic economics prevents it. And that is the thing that the court “didn’t see” according to the court itself. You’re not really getting it, without the price elasticity of demand being known for that regime the evidence of record is not only not “convincing” or “rebuttable”, it is wholly irrelevant.There is literally no way to establish what the one side wishes to establish, aka anything about the demand increasing, just with the evidence of record. And that is because the factor that would make the evidence meaningful is sadly missing. In any event, have your final say, I’m through discussing this case. it’s boring.

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