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To read comments to this article, go here
Samsung Moves to Quickly Lift Preliminary Injunction on Galaxy 10.1 ~pj
Monday, August 27 2012 @ 05:39 PM EDT

With a breathtaking immediacy, we see the post-verdict maneuvers begin in the Apple v. Samsung case. Samsung has now filed with the District Court a motion [PDF] to immediately lift the preliminary injunction on the one device the jury didn't find infringing which had been blocked by a June 26 order [PDF] enjoining Samsung from "making, using, offering to sell, selling in the United States, or importing into the United States the Galaxy Tab 10.1."

The jury didn't know that, of course, or didn't connect the dots on this either. For whatever reason seemed good to them, they didn't find the Galaxy Tab 10.1 infringing Apple's 'D889 patent. And that was the only one that the District Court judge and the Federal Circuit thought [PDF] should be blocked by an injunction pending the outcome of the trial. Neither the judge nor the Federal Circuit seemed to think the other Apple patents were likely to prevail, but with this jury, the Alice in Wonderland of juries as I think of them, it was the opposite.

None of it makes sense in the normal world, not even in the very peculiar patent universe. As you know, I think software patents should never be granted, and I find the broadening of trade dress protection that this case represents appalling. But even if I thought they should be granted, this jury's verdict makes little sense. But lawyers deal with what is, not what ought to be, or how it's supposed to go, and so they work with what they have. This will go on for quite a while, as each side tries for an adjustment in its favor.

Samsung asks for the matter to be handled expeditiously:

A shortened briefing schedule on Samsung’s Motion to Dissolve is necessary and in the interest of justice because the jury verdict expressly rejects the predicate upon which the preliminary injunction was entered—that Apple was likely to prove that Samsung’s Galaxy Tab 10.1 infringes the D’889 patent. The normal briefing and hearing schedule would unnecessarily prolong the wrongful injunction to which Samsung already has been subject for two months. The prompt dissolution of the preliminary injunction is also critical to Samsung’s business relationships with carriers and customers, which has been harmed during the period in which the injunction has been in effect.
That's just the opening shot, I presume. Interestingly, Judge Koh had not thought that any preliminary injunction should issue originally, as you can see in the Federal Circuit's opinion, on page 13:
The court nonetheless concluded that a preliminary injunction should be denied because there were substantial questions about the validity of the D'889 patent, and therefore Apple was unable to show that it would likely succeed on the merits.... it concluded that Samsung had raised a substantial question about whether the patented design would have been obvious in light of a combination of several prior art references.
It was only after that ruling by the Federal Circuit overruling her decision, after Apple appealed, that Judge Koh issued the preliminary injunction immediately afterward. So she had it right the first time.

We now have all the Apple patents, attached to its complaint, on our Apple v. Samsung Timeline page, #1 on the docket list. And I've marked what each one is, so they are easy to find, if you want to track the patent this is about.

Here are the filings:

1935 - Filed & Entered: 08/26/2012
ORDER RE: AWARD OF FEES AND COSTS re 880, 906. Signed by Judge Paul S. Grewal on 8/26/2012.(psglc2, COURT STAFF) (Filed on 8/26/2012).

1936 - Filed & Entered: 08/26/2012
Memorandum of Points and Authorities in Support of MOTION To Dissolve the June 26, 2012 Preliminary Injunction filed by Samsung Electronics America, Inc., Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC. Responses due by 8/28/2012. (Attachments: # (1) Proposed Order Granting Samsung's Motion to Dissolve Preliminary Injunction)(Maroulis, Victoria) (Filed on 8/26/2012) Modified text on 8/27/2012 to conform with caption of document (dhmS, COURT STAFF).

1937 Filed & Entered: 08/26/2012
MOTION to Shorten Time for Briefing and Hearing re [1936] Samsung's Motion to Dissolve the June 26, 2012 Preliminary Injunction filed by Samsung Electronics America, Inc., Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC. (Attachments: # (1) Declaration of Victoria Maroulis in Support of Samsung's Motion to Shorten Time, # (2) Proposed Order Granting Samsung's Motion to Shorten Time)(Maroulis, Victoria) (Filed on 8/26/2012) Modified on 8/27/2012 linking entry to document #1936 (dhmS, COURT STAFF).

1938 - Filed & Entered: 08/27/2012
RESPONSE (re [1937] MOTION to Shorten Time for Samsung's Motion to Dissolve the June 26, 2012 Preliminary Injunction ) Apples Opposition To Samsungs Motion To Shorten Time On Motion To Dissolve Preliminary Injunction filed byApple Inc.. (Jacobs, Michael) (Filed on 8/27/2012)

1939 - Filed & Entered: 08/27/2012
NOTICE by Apple Inc. Apple's Certificate Pursuant to Federal Rule of Appellate Procedure 10(b) (Selwyn, Mark) (Filed on 8/27/2012)

1940 Filed & Entered: 08/27/2012
RESPONSE to Apples Response To The Courts August 24 Order Regarding Post-Trial Preliminary Injunction Filings by Apple Inc.. (Jacobs, Michael) (Filed on 8/27/2012)

The Apple filing about the appeal is this: Apple had filed already with the Federal Circuit regarding the court's unsealing order, back on August 17. It now argues in its brief [PDF, 95 pages] that "The Need To Protect Apple’s Critical Trade Secrets Overcomes The Public’s Minimal Interest In These Documents" which it argues Judge Lucy Koh overstepped her authority by ordering released.

Trust me, our interest is keen, not minimal. Kidding. They mean their need to keep them secret outweighs our panting for them. This is more fighting about Reuters' moves to unseal things that Apple doesn't want seen in public, as it explains:

The documents that Apple sought to seal fell within four narrow categories of trade secrets: (i) detailed financial information; (ii) non-public source code and schematics; (iii) proprietary market research reports; and (iv) confidential licensing information.
That last is what I'm drooling over. I want to know how much Samsung paid Microsoft allegedly for patents in connection with Android. By the way, Kathleen M. Sullivan is listed as principal counsel for Cross-Appellants Samsung.

And there is something else I'm curious about. We know now that originally Apple offered to license its patents to Samsung at $24 per smartphone and $32 per tablet, according to the Reuters account, which adds that at that price, it would "effectively wipe out more than half of Samsung's margins on any phone priced less than $450." What about Microsoft? What is it paying? Is it the same prices they offered to license them to Samsung? Or was that high price just for Samsung? If there is a significant difference, and Microsoft is paying a lot less, for example, what might we conclude?

So ... Apple would like copyright, trademark, patent, design patent, trade dress *and* trade secret protection. Heavens. How fragile thou art, Apple, if you need all that to survive in the marketplace.

Isn't that the true message of all this, that the proprietary side of the market can't win on an even playing field, so they are throwing tacks in the way of Android, which is eating their lunch with customers? They are trying to win in the courts by hobbling Android. People love Android. Why wouldn't they? You can breathe.

People do like freedom, you know. It's like grass. Even if you lay down concrete on top of it, trying to replace it, it keeps pushing upward, trying to reach the light. You've seen cracks in the sidewalk with grass peeking through? It's how we humans are wired, too. We like to breathe free. That's not just a US value; it's a universal human desire, and the proprietary side doesn't want us to have it. They'd like to dictate what we are allowed to buy and what we are allowed to do with what we buy.

Only Apple can have a couple of rows of brightly colored icons? Only Apple can pinch to zoom? Only Apple can have rectangular devices with rounded corners, bezels, and a flat screen surface? Who are they to dictate such terms to the world? That is way too basic and too broad. They are the only ones allowed to fulfill the market demand?

It was fine with me if they wish to dictate to their users, as long as the users don't mind. But when they start to dictate to Android, to people who don't want an Apple product but do want full functionality, exactly what functionality it is allowed to have, what look it must not have, it's an outgrowth of the idea that only the IP owner's rights matter. But customers have rights too. Or we used to. And nobody is paying attention to that side of the issue, and when you think about it, that is what makes IP law Constitutional, that it's allegedly for the benefit of the public, with the goal of encouraging innovation for our benefit, not so Apple can make money from a monopoly on tablets. That is precisely the opposite of the law's purpose, when it starts to inhibit innovation, which is, as any artist will tell you, including Steve Jobs, a process inevitably of using and building on the ideas of others.

So, here's a question. If IP laws work against innovation now, against the public interest, are they still Constitutional?

Here's Samsung's Motion and Memorandum in support of its motion, as text:

****************

QUINN EMANUEL URQUHART & SULLIVAN, LLP
Charles K. Verhoeven (Bar No. 170151)
[email]
[address, telephone, fax]

Kevin P.B. Johnson (Bar No. 177129)
[email]
Victoria F. Maroulis (Bar No. 202603)
[email]
[address, telephone, fax]

Michael T. Zeller (Bar No. 196417)
[email]
[address, phone, fax]

Attorneys for SAMSUNG ELECTRONICS CO.,
LTD., SAMSUNG ELECTRONICS AMERICA,
INC. and SAMSUNG
TELECOMMUNICATIONS AMERICA, LLC

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA, SAN JOSE DIVISION

APPLE INC., a California corporation,

Plaintiff,

vs.

SAMSUNG ELECTRONICS CO., LTD., a
Korean business entity; SAMSUNG
ELECTRONICS AMERICA, INC., a New
York corporation; SAMSUNG
TELECOMMUNICATIONS AMERICA,
LLC, a Delaware limited liability company,

Defendant.

_________

CASE NO. 11-cv-01846-LHK

MOTION TO SHORTEN TIME
FOR BRIEFING AND HEARING

NOTICE OF MOTION

TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

PLEASE TAKE NOTICE that Defendants Samsung Electronics Co., Ltd., Samsung Electronics America, Inc., and Samsung Telecommunications America, LLC (collectively “Samsung”) shall and hereby do move the Court, pursuant to Civil Local Rules 6-1(b) and 6-3, to shorten time for briefing on its accompanying Motion to Dissolve the June 26, 2012 Preliminary Injunction.

This motion is based on this notice of motion and supporting memorandum, and such other written or oral argument as may be presented at or before the time this motion is taken under submission by the Court.

RELIEF REQUESTED

Samsung seeks to shorten time for briefing on Samsung’s Motion to Dissolve the June 26, 2012 Preliminary Injunction.

DATED: August 26, 2012

QUINN EMANUEL URQUHART &
SULLIVAN, LLP

By /s/ Victoria F. Maroulis
Charles K. Verhoeven
Kevin P.B. Johnson
Victoria F. Maroulis
Michael T. Zeller

Attorneys for SAMSUNG ELECTRONICS CO.,
LTD., SAMSUNG ELECTRONICS AMERICA,
INC., and SAMSUNG
TELECOMMUNICATIONS AMERICA, LLC

MEMORANDUM

On June 26, 2012, the Court issued an Order Granting Preliminary Injunction, enjoining Samsung from making, using, offering to sell, selling in the United States, or importing into the United States the Galaxy Tab 10.1 (“the Order”). In light of the jury verdict and final judgment entered on August 24, 2012, Samsung has filed a Motion to Dissolve the June 26, 2012 Preliminary Injunction (“Motion to Dissolve”). In accordance with Local Rules 6-1(b) and 6-3, Samsung moves the Court to shorten time for the briefing and hearing schedule for its concurrently filed Motion to Dissolve. Specifically, Samsung requests that:
1. Apple’s opposition to Samsung’s Motion to Dissolve be filed on or before Tuesday, August 28, 2012;

2. Samsung waives its right to file a reply brief; and

3. The Court decides Samsung’s Motion to Dissolve without oral argument.

A shortened briefing schedule on Samsung’s Motion to Dissolve is necessary and in the interest of justice because the jury verdict expressly rejects the predicate upon which the preliminary injunction was entered—that Apple was likely to prove that Samsung’s Galaxy Tab 10.1 infringes the D’889 patent. The normal briefing and hearing schedule would unnecessarily prolong the wrongful injunction to which Samsung already has been subject for two months. The prompt dissolution of the preliminary injunction is also critical to Samsung’s business relationships with carriers and customers, which has been harmed during the period in which the injunction has been in effect.

Expedited resolution of Samsung’s Motion to Dissolve is also warranted in light of Samsung’s pending appeal of the June 26, 2012 preliminary injunction. Samsung’s opening brief in the Federal Circuit is due next Tuesday, September 4, 2012. Dissolving the preliminary injunction (or issuing an indicative ruling pursuant to Fed. R. Civ. P. 62.1) prior to that date would

2

allow Samsung to withdraw its appeal before having to file a merits brief on an appeal that will soon become moot.

Counsel for Samsung contacted Apple’s counsel in an effort to reach a stipulation to the briefing and hearing schedule outlined above. Apple did not agree to Samsung’s proposed schedule. See Declaration of Victoria Maroulis In Support of Motion to Shorten Time for Briefing and Hearing, filed concurrently.

CONCLUSION

For the foregoing reasons, Samsung respectfully requests that the Court grant Samsung’s Motion to Shorten Time for Briefing on Samsung’s Motion to Dissolve.

DATED: August 26, 2012

Respectfully submitted,

QUINN EMANUEL URQUHART &
SULLIVAN, LLP

By /s/ Victoria F. Maroulis
Charles K. Verhoeven
Kevin P.B. Johnson
Victoria F. Maroulis
Michael T. Zeller
Attorneys for SAMSUNG ELECTRONICS CO.,
LTD., SAMSUNG ELECTRONICS AMERICA,
INC. and SAMSUNG
TELECOMMUNICATIONS AMERICA, LLC

3


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