Guest post by Bernard Chao
On September 17, 2015, the Federal Circuit issued another decision in the Apple v. Samsung smartphone war (summarized previously here). In the fourth court decision dealing with injunctions, Apple IV gave new guidance on the level of proof necessary to satisfy the “causal nexus” requirement. Although this requirement demands that patentees prove that the specific infringing feature cause irreparable harm, the majority opinion (by Judge Moore) observed that proving causation was “nearly impossible” in cases involving products with thousands of components. So the court watered down the causal nexus requirement by saying that it was enough for Apple to show the infringing features to be “important to product sales and that customers sought these features in the phones they purchase.” On October 19, 2015, Samsung filed a Petition for Rehearing en banc on this issue. Although I don’t agree with everything Samsung has to say about Apple’s injunction request, I do believe that the full Federal Circuit should revisit the decision and reinvigorate the “causal nexus” requirement.
As I argue in greater depth in my upcoming essay, Causation and Harm in a Multicomponent World
(forthcoming University of Pennsylvania Law Review Online), Apple IV is troubling on both doctrinal and theoretical grounds. On the doctrinal level, the decision fails to appreciate that most multicomponent technology products are made up of countless small advances, not a few far-reaching ones that change consumer preferences. Presumably, Apple chose its most valuable patents to assert against Samsung; but a review of the three Apple patents at issue show how minor the infringing features are — a conclusion that Chief Judge Prost’s dissent also made. If a powerhouse like Apple doesn’t have a pioneering patent to assert, there probably aren’t very many such patents out there. My point is that a single feature rarely, if ever, drives consumers from one technology-based product to another. Holding that causation is present for every important feature is therefore inconsistent with how consumers actually decide to buy multicomponent devices.
On a theoretical level, Apple IV reveals a deeper debate within patent law. Some view patents as a kind of traditional property that allows owners to do with it what they will. Others understand patent law to be focused on the public good. Reviewing Judge Moore’s majority opinion and Judge Reyna’s concurrence reveals that their willingness to accept less evidence of harm has been clouded by their view of patents as a form of traditional property. But this view of patents is wrong. The fundamental purpose underlying patent law is to promote innovation. To the extent that inventors receive financial rewards, it is simply a byproduct of encouraging innovation. This concept is rooted in the Constitution, which authorizes laws “to promote the Progress of Science and the useful Arts . . .” Moreover, the Supreme Court has repeatedly sought to maximize innovation on behalf of the public when shaping various different patent doctrines. Most importantly, that is the view the Court took in eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388 (2006) when it held that patent owners no longer possess the automatic right to exclude others from infringing their patents. They must first satisfy eBay’s equitable four factor test. Of course, the first factor involves showing that the infringing feature actually caused irreparable harm.
In sum, there are both doctrinal and theoretical reasons for the full Federal Circuit to reconsider Apple IV and restore the “causal nexus” requirement so that patentees have to show real causation and harm. The failure to do so will allow patentees to use a permanent injunction (or the threat of one) to force an infringer to take a license at a rate that reflects the value of the injunction, which is often greater than the value of the patented feature. This is the kind of patent holdup that a prudent application of eBay helps avoid.
NOT Sure why my comment is being DEL ET ED
Dennis,
I am sure Bernard Chao can defend himself. He is a big boy.
ALL he has to do is say
“I have been PAID by Samsung and Google X amounts of Dollars” over the last 5 years.
As for the 2nd link : link to casetext.com
it clearly says
“The defendants nominate two candidates: (1) Professor Bernard Chao” ….
It is also clearly stated that “defendant is Google and Samsung”
Bernard Chao can also come out and say that “Chao Hadidi Stark & Barker LLP” has made money from Samsung and Google.
Proper and honest Disclosure would give the readers the source of the bias I see in this anti-patent article.
This is part of the Google PR machine to write one or two anti-patent pro Google / Samsung articles every week. Economist, NY times, WaPO, WSJ, other blogs.
If anyone has experience in PR or has worked with PR agencies know what is happening here.
This is all to make sure to influence the general public and the CAFC/Supreme / Congress for being against the patent system.
ALL this is PR work is done is For CAFC/SCOTUS/Congress to feel that they are with the people .. PR firms do this and make 10 different authors write 10 different anti-patent articles every Q.
PR agency deliverables for every Q are X number of articles generated Y number of views. So they can bill Google / Samsung for the PR/Lobbying work they did.
Dennis I am pretty sure you are very intelligent person and you are not that incredulous to NOT see what is going on in the media with Google PR effort.
All this is , is a Google / Samsung PR article to influence people who read your blog.
“I am sure Bernard Chao can defend himself. He is a big boy.”
I am sure too that any set of rules objectively and uniformly applied would have the same effect.
I’d like to see a nexus between this article and reality. Anyone who as done real product design and marketing (and all those studies to try and figure out what people want) KNOWS that people don’t know why they do things. ANYONE that has remotely studied real product design and why people buy a product knows this.
So, what does this mean—it means again we have an academic article that bears no nexus to real life. Why? Because, to get this “casual nexus” would mean we would have to know why someone bought something. And, we don’t know that. So, what have we done? We have substituted the fact that the product managers put the feature in the product to try and get people to buy it.
Reality–not a fantasy world created by an academic to try to restrict patents.
These “academic” articles are like a game of where’s Waldo, but instead of Waldo it should be titled, “Where the fallacy?”
It is just shameful that professors will not engage in real debate. I’d like to see the good professor substantively address my comment.
And furthermore, wow (!), what nonsense. Did the professor bother to get any idea how real product development is done? I’ve done this for multi-billion dollar products. These things are made by multi-billion dollar factories. I’ve decided what features are going into products where 10’s of millions of them are made. Features selected carefully because of the costs and desire to satisfy people and get them to buy the product.
So, here we have a giant process in place to select the features by parties that are directly affected by the decisions to include the features or not. And, people are unreliable as to why they did something. It is psychology 101, that when you do studies and ask, “why did you buy that?” that you cannot trust their answer. EVERYONE knows that that works in this area.
It is stunning how bad these papers are.
When there is a product with a thousand features, I doubt any one feature (well, there are some big ones, I’ll admit) actually contributed to a person’s decision to buy the object, rather it was a combination of features. In your vast experience, how did you assign a value to each feature that was proposed to be included?
OSita,
Your post is actually a point against the thrust of the article.
For some reason, there is an inherent bias against patents that are on “small” things**
**small here being a relative term, coincident with a “larger” item of commerce that may have a number of these “small” things within it.
Since the patent right is not – in fact – a “positive” right, this form of innate bias is especially pernicious.
Squirrel, I didn’t say I had vast experience doing this. I have real experience doing this and have done it for real.
You are trying to simplify it. It isn’t simple. The point is that the decisions of the product managers is a very good substitute for the buying decision.
ordinary squirrel, the demand for a particular feature in a smart phone may be relevant to how valuable that feature is the overall phone sets that a royalty can be properly adjusted on the price of the phone, but we are talking here about “irreparable harm” not about reasonable royalty.
The Supreme Court even recognize that with a patent that damages are not adequate because of the ongoing nature of the tort. Because the patent owner has no obligation to license is patent in the United States, he almost has a right to an injunction except under limited circumstances where that would be against the public interest. Even eBay can be cited for this proposition
They should call it the casual nexus test.
Why in the world is the Federal Circuit once again loading up an equitable doctrine that requires the balancing of equities with per se, legal, rules?
Because they are gluttons for Supreme Court punishment?
This is a fundamental and critical error:
“failure to do so will allow patentees to use a permanent injunction (or the threat of one) to force an infringer to take a license at a rate that reflects the value of the injunction, which is often greater than the value of the patented feature.”
This completely misses the nature of the patent right: a negative right.
Chao should know better.
Anon, completely correct. The statement assumes that the infringer has a right to continue to infringe or has a right to a license at a royalty that it chooses.
The way infringers can avoid being put into the situation in the first place is to conduct clearance studies before they place a product into the public domain. Otherwise, they claim a right to put products on the market without regard to the patent rights of others and to use their disregard of other people’s property rights as the reason for their right to continue to infringe or to obtain a license at a royalty they choose.
There are not enough patent attorneys employed full time in the U.S. with a EE/CPE/CS background to do an adequate clearance study on all of the devices being manufactured. Your bar is in fact the impossible.
On the subject of royalties, you should get what your patent is worth, which, in the aggregate, is very little in a device that is covered by hundreds, if not thousands, of patents (granted, there are some technologies that are more valuable than others). Likely, a small software feature is worth next to nothing (maybe 100 million time next to nothing is $10,000).
Absolutely wrong.
Ordinary Squirrel — really? How so? Take a computer. It has parts X, Y and Z. The computer company does not make X, Y or Z. So it relies on indemnity. It only has to focus on combinations of X, Y or Z.
Same could be said of manufacturers of X, Y or Z. And so on and so.
It is amazing how the infringer lobby likes pretend that clearance studies are literally impossible when they are not.
I think that is a terrible example. In a smart phone, we are talking about hardware and software that potentially implicate thousands of patents. Between the unindexible nature of software-based patents, the lack of a standardized vocabulary, vagueness, and the DOE, skilled judgment is needed to find and evaluate patents. That is why patent attorneys get paid the big bucks. However, these issues also mean that you can only reduce your level of risk, you cannot eliminate it. At some point, someone has to decide what level of risk the company is comfortable with. There will always be risk that you didn’t find every applicable patent or that the court will disagree with your judgment or take an odd turn in claim construction.
Are clearance studies useful? Yes. Are they a panacea? No. Will they stop you from infringing a patent? Probably not, though they will reduce the likelihood that you will.
LIFE has risks you cannot eliminate.
Grow up Squirrel.
Once again, you show up and entirely miss the point with you asinine one liners. Ned and I are having an interesting conversation to which you add absolutely nothing.
I missed no point, squirrel, as my “one-liner” is directly on point to your rather myopic views.
You are always free to contact Ned privately if you want a solo conversation. This is, after all, a public forum you are using.
Unindexable?
This sentiment illustrates part of the problem of patenting software in the abstract as opposed to improvements to specific machines, processes, manufactures and compositions.
May I suggest to the PTO that they impose a rule that requires a statement of what machines, processes, manufactures or compositions are being improved that the application might be better indexed and searched?
If the applicant only says computers, the office should not examine the patent until something more specific is filed by the applicant.
This seems unrealistic for a smart phone since a smart phone is also a general purpose computer. There are 1, 347, 348 patents containing the word ‘computer’.
Results of Search in US Patent Collection db for:
computer: 1347348 patents.
Hits 1 through 50 out of 1347348
/., who makes the processor in a smartphone? I assume any processor manufacturer can focus in on processor architecture patents to find possible infringements. Is this all that hard? If they buy processors from other people, they can rely on indemnity.
There 668,8333 patents containing ‘computer’ and ‘processor’, which leaves 600,000 odd to check to see if your particular combination of components is infringing. Plus the processor manufactuer’s legal department may balk at an indemnity query with 668,833 items in it…
What exactly is a “gen eral purpose computer” …?
Maybe the smart phone (with software) no longer is such a thing… (See Alappat).
Especially considering that a “smart phone” works equally as well without the particular added manufactures and machine components known as software as at issue in the present case, and those manufactures certainly are not “already in there” in the understanding of the patent doctrine of inherency.
/., I am sure you are aware that for a very long time people patenting business methods and the like have been able to get patents through the patent office simply by including in their claims the words “computer implemented” or the like? These claims have little to do with computer architecture which are properly classified in particular classifications within the patent office. Undoubtedly a competent patent attorney could figure this out.
“simply adding in” sounds like a mere aggregation attempts….
Or are you discounting (again) the full treatment of law under the exceptions to the judicial doctrine of printed matter?
Bernard Chao is a PAID hack of Samsung and Google! and is part of the Anti-Patent narrative team.
It would be good for Bernard Chao to make a public financial disclosure of HOW Much money has he made from Samsung/Google over the last 5 years.
Anything and Everything he says or writes on Patent Policy has to looked through the prism of Samsumg/Anti-patent bias.
Here is a link to the “Conference | Samsung-Stanford Conference on Patent Enforcement”
link to youtube.com
Google has hired him multiple times as an Expert
Example Link
link to casetext.com
He is close to Michell Lee the USPTO / Google appointed paid hack in government
Google and Samsung PAID hack and now writing hit pieces on this blog , without any disclosure.
If it is not kosher for Pump and dump financial annalist to tout a stock / point of view without disclosure .. It should not the legitimate for Bernard Chao.
Brian, the corruption apace in here is obvious for all to see. Chao cites to eBay as if it was all about establishing irreparable harm when, according to its citation to Continental Paper Bag and according to Roberts, that was all but established simply by the fact that damages can never be adequate in face of an ongoing tort and in view of the exclusive rights provided by a patent. The patentee has a right to not license.
The problems that arise are because of the potential harm to the public, cited by the court in its reference to Roche, and because of the potential of significant harm to the infringer by removing one component of a larger device — assuming that there was no deliberate piracy in the first place, which there was here.
deliberate piracy
Was there any evidence that Samsung copied the patent or copied Apple’s code?
MM, copying code? No. Copying popular features? Yes. That is why Jobs ordered the hit in the first place.
Copying popular features?
aka “functionality.”
Hence the problem here.
link to theguardian.com
the Anti-Patent narrative team.
LOL. Reminds me: when are the new uniforms coming?
Bernard Chao is a PAID hack of Samsung and Google
And you …. why, you must be a paid hack for Apple! Or whoever is on the opposite team. Or something.
Bottom line Malcolm is that there is in fact organized activity against patents.
Quite in fact (since you love that term), there are more than one such group of organizations. And these organizations have different motives for their similar desired ends.
No amount of inconsequential f1uff from you can change that reality.
One of your short script retorts is the “born yesterday” meme – here, you employ that which you are so fond of accusing others of.
there is in fact organized activity against patents
Oh noes! Beware organized activity!
Maybe when the More Patents Easier To Enforce All The Time Legion of Superheroes gets organized they can do battle.
Oh noes – beware “functionality” (otherwise known as utility, which – by the by – every patent has).
Funny that – the four categories still seem to be the law (as written by Congress)
Brian – thank you for this information. Chao and Dennis should disclose, on this blog and up front, that Chao is/was a paid expert for a party that is the very subject of his article. Complete garbage!
Chao is/was a paid expert for a party that is the very subject of his article. Complete garbage!
Remember when “i invented that ” and “brian smith” went crrrrraaazzzy over the many strange articles that were posted here by directly invested inventors and law firm partners “explaining” why Prometheus just had to be allowed to sue people who thought something non-obvious about data obtained from a public domain data-gathering method? Because “that’s what obviousness is for” (or something like that)?
Me neither. Imagine all the fascinating damages/injunction scenarios we’d be discussing now had the “no dissection” folks gotten their way.
You do realize that the Claim as A WHole still is the controlling law, right?
Your little pet theory only boils down to the b@nal “no mere aggregations.”
Nice try MM! I’ve never commented on Prometheus on this blog, so you can’t possibly know my view on that topic. You’re just still sore that you were called out on 101/Alice and still are unable to provide an actual example of a claim that IS patentable. Back to the issue at hand, I believe that anyone that posts an article on this blog that is paid by a party discussed in the article should disclose that fact to the readers, regardless of their opinion one way or another. I have no idea whether Chao is in-fact paid by Samsung, which is why I thought he should set the record straight.
Brian – I would normally delete this type of comment b/c it is so off the mark, but I thought I would respond here.
1) The “hack” claim seems only pejorative without any direct substance.
2) I also attended the Stanford Conference – Samsung did apparently pay Stanford to put its brand on the conference, but none of us attendees received any money other than reimbursement, and that was paid by stanford law school and only for actual travel expenses.
3) Regarding the Google case, The link that you suggested involved Prof Chao being appointed by the court as a special master under R.53 — i.e., the Judge decided that Chao, based upon his record, should be relied upon as an impartial expert decision maker. He was also appointed a special master in the Katz litigation. This is totally different from serving as an expert witness.
That said Prof Chao does maintain a legal practice at the firm he founded Chao Hadidi Stark & Barker LLP.
A purely objective (and true) observation is again censored.
Truth hurts – and persists even if the post is deleted. In fact, deleting such posts only confirms that which you find so “inconvenient.”
Dennis,
I am sure Bernard Chao can defend himself. He is a big boy.
ALL he has to do is say
“I have been PAID by Samsung and Google X amounts of Dollars” over the last 5 years.
As for the 2nd link : link to casetext.com
it clearly says
“The defendants nominate two candidates: (1) Professor Bernard Chao” ….
It is also clearly stated that “defendant is Google and Samsung”
Bernard Chao can also come out and say that “Chao Hadidi Stark & Barker LLP” has made money from Samsung and Google.
Proper and honest Disclosure would give the readers the source of the bias I see in this anti-patent article.
This is part of the Google PR machine to write one or two anti-patent pro Google / Samsung articles every week. Economist, NY times, WaPO, WSJ, other blogs.
If anyone has experience in PR or has worked with PR agencies know what is happening here.
This is all to make sure to influence the general public and the CAFC/Supreme / Congress for being against the patent system.
ALL this is PR work is done is For CAFC/SCOTUS/Congress to feel that they are with the people .. PR firms do this and make 10 different authors write 10 different anti-patent articles every Q.
PR agency deliverables for every Q are X number of articles generated Y number of views. So they can bill Google / Samsung for the PR/Lobbying work they did.
Dennis I am pretty sure you are very intelligent person and you are not that incredulous to NOT see what is going on in the media with Google PR effort.
All this is , is a Google / Samsung PR article to influence people who read your blog.
This is your fallacy.
OSita,
Your post only exemplifies your own lack of knowledge in the art of rhetoric.
It is simply an ig norant fallacy to so attempt to classify all ad hominem so.
Further,
Your post also misses the distinction that I have provided that I engage with law and facts as well as “fight fire with fire.”
Pay attention son.
Haha. I think we have been over this in other threads before that I reject the notion that ad hominem attacks are valid part of the art of rhetoric. Nothing you have said thus far has swayed me from that position.
It is a good thing then that you do not define what is included in the art of rhetoric.
In the mean time, enjoy your self-imposed ig norance.
A critique of Prof. Chao’s paper, referring to the Apple IV decision. Sorry for the length.
“This lower standard is an ill-advised mistake that leaves multicomponent product manufacturers more susceptible to patent holdup,” at page 1. Let’s see how this works.
“First, let’s consider the three Apple patents. Presumably, Apple selected some of its most valuable patents to assert against Samsung. But a review of these patents show that they cover surprisingly minor features,” at page 8. Which are easily designed around, he says, so no problem there.
“It fails to appreciate that even those most innovative technology products are made up of countless small advances, not a few pioneering ones,” at page 9. Granted.
“In Apple IV, Apple only asked for an injunction ordering Samsung to remove the accused features. … Because Samsung can remove the infringing features – apparently in just one month – its switching costs appear to be minimal…. In sum, Apple’s injunction will not result in patent holdup,” at Page 14. So, no problem there. But there could be later, he says.
“For example, if the owner of one of the copious number of patents essential to the WCDMA standard were to bring suit against a smartphone company, an injunction will effectively prevent the sale of the entire smartphone,” id. True, but there is no mention of the FRAND agreements.
“We can reimagine Apple’s suit as involving a feature in a microprocessor found in Samsung’s smartphones. Perhaps, the feature reduces battery drain. …The cost of redesigning a chip or moving to a different one is likely to be significantly higher than the value of the feature itself,” at page 15. Just a minute, if this is a “small advance,” it means there is an existing chip that lacks this feature. Source that one instead.
What about the patent on the spark plug that goes into the equipment that mines the bauxite that makes the patented aluminum alloy that goes into the smartphone case? Patent exhaustion solves that and, I’d bet, most multicomponent problems.
Troubled, do you agree or disagree that absent some overriding issue involving public rights that Samsung does not have a right to continue to infringe and does not have a right to a license.
Clearly Roberts, Scalia and Ginsburg (concurring in eBay) believed the irreparable harm was cause by the nature of the right —
“From at least the early 19th century, courts have granted injunctive relief upon a finding of infringement in the vast majority of patent cases. This “long tradition of equity practice” is not surprising, given the difficulty of protecting a right to exclude through monetary remedies that allow an infringer to use an invention against the patentee’s wishes— a difficulty that often implicates the first two factors of the traditional four-factor test. This historical practice, as the Court holds, does not entitle a patentee to a permanent injunction or justify a general rule that such injunctions should issue. ”
The Roberts then cited to Roche that suggested that public interest factors might weigh in — as did the Supreme Court itself said in Continental Paper Bag. But nowhere in eBay did the court suggest that irreparable harm could be demonstrated by anything else that a violation of the exclusive right. It was the OTHER factors, other than irreparable harm, that might weigh in to permit a court to do something else than issue an injunction.
Kennedy himself spoke of the potential harm to the infringer of an injunction as to why an injunction might not issue.
“When the patented invention is but a small component of the product the companies seek to produce and the threat of an injunction is employed simply for undue leverage in negotiations, legal damages may well be sufficient to compensate for the infringement and an injunction may not serve the public interest.”
This again points to the harm to the infringer and the public interest. But, even as we see here in Samsung, as was in the earlier i4i case, redesign time and a temporary license may be enough to alleviate the harm.
Besides, it is not that the patentee is willing to license his patents, it is the price he is willing to accept that is important — else he remains an unwilling licensee.
That is the whole point. Before infringement, a licensee must determine how much value the invention would add. An injunction to desist would restore the status quo ante (almost). Somehow, this is unfair because of the infringer’s sunk cost and public reliance on the invention. If so, we are now stuck with a hypothetical negotiation which includes, inter alia, consumer surveys to determine what part of the sales price is due to the patented feature. To me, it looks like a can of worms. One that Apple/Samsung may be able to afford, but I fear that SME’s will be ground into the dirt.
Troubled, there is something radically wrong with “before the infringement” determination of a RR if the patentee has the absolute right not to license at all unless he receives his price. If the patentee has an establish licensing program, and is willing to offer all comers a license at X, then X should be the RR.
But, if the infringer forces litigation rather than paying X, his damages need to be radically enhanced — trebled. Only then should the court allow the infringer to continue with royalty X.
Ned,
Of course, Samsung has no right under the patent laws, but the issue is, what is the remedy. My comment above was directed to the horror-of-horrors argument that modern multicomponent items make (although not stated as such) remedies with teeth for patentees too difficult.
Troubled, assume Samsung cannot design out an Apple patent from its phones at all. Rather it must cease being in the phone market entirely.
Now, I would suggest that such a patent is essential for a phone.
But, if it can easily be designed out, do so.
Alternatively, let Samsung ask Apple for a license. Fat chance there.
Also, the notion of “holdup” goes to the harm to the infringer, not to the harm to the patent owner.
Here, Samsung admitted it would suffer virtually no harm at all if it were required to remove the infringing features.
So, where in the world does it claim a legal right to continue to infringe?
Further, I think eBay pointed out that an injunction should not automatically issue because the infringer might point to the significant damage it might be caused in doing so. Accommodations might be made to allow a transition; but the focus on irreparable harm should be on the exclusive right granted the patentee, just as stated by the Supreme Court.
The Federal Circuit is lost in the weeds once again.
where in the world does it claim a legal right to continue to infringe?
Pretty sure you can trace this all back to the incredible mind-numbing st00pidity of the patent claims in questiom.
MM, Apple’s inventions may be minor, or borderline obvious, but that does not mean that Samsung has a right to continue to use them unless they can show significant harm in their removal from their product, assuming they were not put there by an act of deliberate piracy in the first place, which they were, in point of fact, in this case, and unless the public interest will be harmed by their removal — hah, hah to that one, right?
My principal objection with the Federal Circuit jurisprudence here is that harm to Apple is the violation of its exclusive right — not to some business interest. The Federal Circuit has marched patent law off the cliff once again.
Apple has a absolute right to insist that Samsung discontinue infringement which should only be denied if Samsung would collaterally damaged to a significant degree and/or the public would be harmed.
MM, Apple’s inventions may be minor, or borderline obvious,
They’re much worse than that, of course. If only they were merely “obvious” or “minor”!
This is what happens when the Patent Office, with the assistance of a short-sighted appellate court who believed its role was to serve “the stakeholders” at the expense of the public, opens the gates to the patenting of information and logic (including software).
eBay was just the tip of the iceberg of what is and will continue to be necessary to deal with the cr pst0rm that was unleashed (and which is still being perpetuated). There’s more to come. If this rankles some, then I have another solution which will simplify things. Ask me about it.
^^* the blight of the loathsome diatribe continues…
Pick a post – quite literally almost ANY post, and you can find this blight.
What does that tell you all?
MM, if the patent is found valid and infringed, we move beyond junk, do we not?
The problem of course is that the Federal Circuit for too long was not enforcing 101, deeming the mere mention in the claim of a computer sufficient.
You are – or should be – aware that the legal point under discussion is NOT tied to the specifics of the particular claim presented, right?
Please kick up dust elsewhere.
Quid Pro Quo.
There must be a balance struck. ANY view otherwise is de facto deficient.
I disagree with Prof. Chao’s post.
First off, let’s examine the scope of the injunctive relief Apple sought: an injunction on using the claimed product feature that also gave Samsung time to initiate a design-around. Samsung claimed during the litigation that it could easily (and apparently did) design around the infringing product feature. So, on that premise alone, I’m not seeing the “hold up” claimed by Prof. Chao, as the injunctive relief only applied to implementing the feature, not the sales of an entire class of product.
Secondly, Prof. Chao is essentially advocating for compulsory licensing on all patents that are not directed to market essential patents.
From a theoretical standpoint, if I invent a patentable product feature, incorporate it into my product and believe it is important to consumer purchasing decisions (but can’t definitively prove it), why should I face competition in the market from a product that incorporates that feature?
I don’t understand how “causal nexus” affects the analysis. If I can prove a causal nexus under the standard Prof. Chao advocates, I basically have a “market essential” or extremely important patent. In that instance, the harm of an injunction to the alleged infringer (and the market at large) is potentially greater. Yet, Prof. Chao would apparently condone an injunction in that instance. If I can’t prove a causal nexus (or if none exists), then the patented feature is competitively less significant (apparently) and the harm of an injunction is less.
Lastly, I don’t understand how the result of this case would impede innovation—in other words, allowing operating companies to protect (and keep its competitors away from) novel, important product features. After all, why go through all of this R&D to improve your product (which typically results in incremental advances), if your competitors can simply copy the features. Does that not harm innovation by decreasing the incentive to improve your product?