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Apple and Samsung Fight About Apple's Desire to File a Motion for Reconsideration Re Scheduling Hearing Dates ~pj
Friday, August 31 2012 @ 07:53 PM EDT

Yes, they are still at it, full tilt. Apple is unhappy, because Judge Lucy Koh ruled [PDF] that Samsung could get an expedited hearing in September on its motion to dissolve the preliminary injunction against its Galaxy Tab 10.1, now that the jury has ruled that it did not infringe Apple's 'D889 patent. But she also ruled Apple has to wait until December for a hearing on its motions to obtain permanent injunctions and willfulness enhancements regarding some of Samsung's other older products, as well as its motion for judgment as a matter of law.

Apple's lawyers are still clueless that the public is for the most part repulsed by Apple's IP aggression. So push on they do on their crusade, asking again that the Samsung issue be heard at the same time. They asked for that already, but they lost, but now they ask permission to file a motion for reconsideration. Apple has also filed for their attorneys fees regarding an earlier motion to be paid by Samsung, and Samsung was awarded attorneys' fees against Apple on another earlier motion, and the magistrate asked for particular figures, and Samsung has now filed those numbers. In short, the beat goes on.

The jury's verdict is under a cloud, I would say, and the appeals could take quite a while, meaning it will be many moons before Samsung knows what the right damages figure is, if any, let alone before it actually pays anything.

So if you read about Samsung paying with a truckload of nickles, just know that did not happen and it will not. It was a joke.

Meanwhile we're reading that Google and Apple are in high level talks. It would not amaze me if there were a settlement before any of this gets settled the hard, long way. After all, Motorola is suddenly targeting Siri with a patent. That's a new factor I'm sure Apple must take seriously. Apple has reason to be more interested in talking now; and of course Google does too, thanks to this goofball jury verdict. All that goes on in litigation doesn't play out in the public eye, as I'm sure you've guessed, particularly in litigation which is essentially about competition, not actual legal grievances anybody really cares about in and of themselves.

The filings:

Filed: 08/28/2012
Entered: 08/29/2012
Set/Reset Hearings
Docket Text: Set/Reset Hearing re [1945] Order on Motion to Shorten Time, Motion Hearing set for 12/6/2012 01:30 PM in Courtroom 8, 4th Floor, San Jose before Hon. Lucy H. Koh. (mpb, COURT STAFF) (Filed on 8/28/2012)

Filed: 08/28/2012
Entered: 08/29/2012
Set/Reset Hearings
Docket Text: Set/Reset Hearing re [1945] Order on Motion to Shorten Time, Motion Hearing set for 9/20/2012 01:30 PM in Courtroom 8, 4th Floor, San Jose before Hon. Lucy H. Koh. (mpb, COURT STAFF) (Filed on 8/28/2012)

1943 - Filed & Entered: 08/28/2012
Reply to Opposition/Response
Docket Text: REPLY in Support of ( [1937] MOTION to Shorten Time for Briefing and Hearing Regarding Motion to Dissolve Tab 10.1 Injunction filed by Samsung Electronics America, Inc.(a New York corporation), Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC. (Maroulis, Victoria) (Filed on 8/28/2012) Modified text on 8/29/2012 (dhmS, COURT STAFF).

1944 - Filed & Entered: 08/28/2012
Order on Stipulation
Docket Text: ORDER by Judge Lucy H. Koh granting [1880] Stipulation Dismissing Claims Without Prejudice (lhklc2, COURT STAFF) (Filed on 8/28/2012)

1945 - Filed & Entered: 08/28/2012
Order on Motion to Shorten Time
Docket Text: ORDER RE: POST-TRIAL PROCEEDINGS by Judge Lucy H. Koh granting [1937] Motion to Shorten Time; granting [1942] Motion to Shorten Time (lhklc3, COURT STAFF) (Filed on 8/28/2012)

1946 - Filed & Entered: 08/29/2012
Order
Docket Text: CLARIFICATION ORDER Re: [1945] Order on Post-Trial Proceedings. Signed by Judge Lucy H. Koh on 8/29/12. (lhklc3S, COURT STAFF) (Filed on 8/29/2012)

1947 - Filed & Entered: 08/29/2012
Exhibit Location
Docket Text: Trial Exhibit Received on 8/29/2012 and placed in Exhibit Room.(dhmS, COURT STAFF) (Filed on 8/29/2012)

1948 - Filed & Entered: 08/30/2012
Declaration in Support
Docket Text: Declaration Supplemental Declaration Of Jason Bartlett In Support Of Apple Inc.s Petition For Attorneys Fees Pursuant To The Courts April 23 Order filed byApple Inc.. (Attachments: # (1) Exhibit 1)(Bartlett, Jason) (Filed on 8/30/2012)

1949 - Filed & Entered: 08/30/2012
Objection
Docket Text: OBJECTIONS to Apples Objections And Response To Samsungs Proffer Of Witness Testimony And Exhibits by Apple Inc.. (Attachments: # (1) Decl Of Nathan Sabri In Support Of Apples Objections And Response To Samsungs Proffer Of Witness Testimony And Exhibits, # (2) Exhibit 1, # (3) Exhibit 2, # (4) Exhibit 3, # (5) Exhibit 4, # (6) Exhibit 5, # (7) Exhibit 6, # (8) Exhibit 7, # (9) Exhibit 8, # (10) Exhibit 9)(Jacobs, Michael) (Filed on 8/30/2012)

1950 Filed & Entered: 08/30/2012
Motion for Leave to File
Docket Text: MOTION for Leave to File Apples Motion For Leave To File Motion To Reconsider Symmetrical Schedule For Injunctive Relief filed by Apple Inc.. (Attachments: # (1) Exhibit A)(Jacobs, Michael) (Filed on 8/30/2012)

1951 - Filed & Entered: 08/30/2012
Declaration in Support
Docket Text: Declaration of Diane C. Hutnyan in Support of [1924] Order Declaration of Diane C. Hutnyan Identifying Samsung's Attorneys' Fees And Costs Pursuant To The Court's August 24, 2012 Order filed bySamsung Electronics America, Inc.(a New York corporation), Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC. (Attachments: # (1) Exhibit 1)(Related document(s)[1924]) (Maroulis, Victoria) (Filed on 8/30/2012)

1952 - Filed & Entered: 08/31/2012
Opposition/Response to Motion
Docket Text: RESPONSE (re [1950] MOTION for Leave to File Apples Motion For Leave To File Motion To Reconsider Symmetrical Schedule For Injunctive Relief ) Samsung's Memorandum of Points and Authorities in Opposition to Apple's Motion For Leave to File Motion to Reconsider Schedule for Injunctive Relief filed bySamsung Electronics America, Inc.(a New York corporation), Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC. (Maroulis, Victoria) (Filed on 8/31/2012)

Apple had argued that there was no need to rush to lift the injunction against the Galaxy Tab 10.1, which the jury ruled was not infringing Apple's design patent D'889 -- even though the judge had earlier ruled that it should be preliminarily blocked because she thought it likely the jury would say it was -- because there was no harm to Samsung. Samsung replies with some controlled snark in docket number 1943:
Apple does not dispute that the jury has found that Samsung's Galaxy Tab 10.1 does not infringe the D'889 patent and thus has rejected the sole ground upon which Samsung‟s Galaxy Tab 10.1 was preliminarily enjoined. An extended briefing schedule is not required to determine that an injunction based on a finding of likely infringement of the D'889 cannot stand once there is a finding that there is no such actual infringement. Apple notes that the jury's verdict is “contrary to this Court's prior finding of likely infringement, which the Federal Circuit affirmed.” Opp. at 3 (emphasis added). That is indeed the point; the jury's verdict demonstrates that Apple's predictions about what the jury would do as to the D'889 were wrong and that the injunction entered on that basis therefore can no longer be maintained.

Apple argues that there is no need to expeditiously dissolve the preliminary injunction because Samsung is not being harmed by it. There is no authority for Apple's remarkable proposition that an injunction, no longer supportable as to its conclusions about likely infringement, can be maintained merely because it supposedly is causing no harm.

In any case, Samsung notes, there is harm because Apple has been contacting carriers and downstream customers, claiming the injunction was applicable to them, something Samsung says it never was and certainly is not now:
Further, Apple has sent letters to multiple carriers and downstream customers insisting that they are obliged by the preliminary injunction to “immediately remov[e] for sale the Galaxy Tab 10.1 from all physical and online venues under your direction or control” and further asserted that the injunction required them to "ceas[e] immediately" selling or offering to sell "the Galaxy Tab 10.1 tablet computer and any product that is no more than colorably different from it and embodies the '889 patent's design.” See Reply in Support of Motion For Stay of Preliminary injunction Pending Appeal (Case No. 2012-1506) at 8-9. That claim by Apple was and remains utterly false. See, e.g., Additive Controls & Measurement Sys., Inc. v. Flowdata, Inc., 96 F.3d 1390, 1395 (Fed. Cir. 1996) (“Because the appellants were never made parties to the underlying action and thus never had an opportunity to contest the findings of liability in that case, they are not subject to being enjoined or held in contempt with respect to their independent conduct regarding the subject matter of the [underlying] case.”); Paramount Pictures Corp. v. Carol Publishing Group, Inc., 25 F. Supp. 2d 372, 374-76 (S.D.N.Y. 1998) (nonparty distributors and retailers were not subject to injunction against publisher and thus were entitled to continue sales of their existing inventory). Prompt relief in the form of dissolving the injunction is more than amply warranted in light of Apple's efforts to disrupt the business of both Samsung and its retail partners through such misrepresentations about the injunction. Apple contends that it needs additional time to “consider its options.” It fails to identify what those options could be when the current record cannot support the continuance of an injunction. The sole basis for the preliminary injunction was a likely showing of infringement of D'889 – a basis that is now not borne out by the jury's verdict. 1

Finally, Apple argues that this Court lacks jurisdiction to grant relief in light of the pending Federal Circuit appeal challenging the preliminary injunction. Apple ignores, however, that Samsung has requested relief under Federal Rule of Civil Procedure 62.1. That Rule provides: “If a timely motion is made for relief that the court lacks authority to grant because of an appeal that has been docketed and is pending, the court may . . . state either that it would grant the motion if the court of appeals remands for that purpose or that the motion raises a substantial issue.” There can therefore be no dispute that this Court has jurisdiction, at a minimum, to provide an indicative ruling that it is prepared to dissolve the injunction. If the Court believes it lacks jurisdiction to actually dissolve the injunction as of now, Samsung will petition the Federal Circuit for a remand based on the indicative ruling requested here. Fed. R. Civ. P. 62.1; In re DirecTV Early Cancellation Fee Mktg. & Sales Practices Litig., 810 F. Supp. 2d 1060, 1066 (C.D. Cal. 2011) (issuing indicative ruling that intervening change in law raised substantial issue); Sierra Pac. Power Co. v. Hartford Steam Boiler Inspection & Ins. Co., 3:04-CV-00034-LRH, 2011 WL 586417 (D. Nev. Feb. 8, 2011) (issuing indicative ruling that the court would alter judgment if the Ninth Circuit were to remand).

____________
1 Apple also cannot, for example, dispute that it has not demonstrated likely irreparable harm from any infringement of the '381, '915, or '163 patents. Apple‟s opposition does not even argue that there is such harm, nor that there is any nexus between the inventions claimed in those patents and demand for the parties' products. In any case, the current injunction, which is based on a finding of likely infringement of the D'889, plainly can no longer be sustained in light of the jury's verdict. To the extent that Apple believes it has other grounds to support the issuance of an injunction post-verdict, it needs to file a noticed motion to seek one. Tellingly, no Galaxy Tab products are among the eight devices that Apple has advised the Court it intends to move against. Dkt. No. 1940.

See what I mean about aggression? It doesn't endear. Apple's brand doesn't match what we are watching, and the whole world is watching.

Here's the judge's order on scheduling that Apple would like reconsidered. It is the one telling Apple it has to wait, that Apple's issues are too complex to handle as expeditiously as Samsung's simple motion to dissolve a preliminary injunction which issued on the idea that the jury probably would find infringement of Apple's D'889 patent. But they did not. Docket No. 1946:

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN JOSE DIVISION

__________

APPLE INC., a California corporation,

Plaintiff and Counterdefendant,

v.

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

Defendants and Counterclaimants.

________________ Case No.: 11-CV-01846-LHK

CLARIFICATION ORDER RE: POST-
TRIAL PROCEEDINGS

(re: dkt. #1945)

As set forth in the Court’s August 28, 2012 Order Regarding Post-Trial Proceedings, the Court will hold a hearing on Apple’s motion for a permanent injunction and willfulness enhancements on December 6, 2012, at 1:30 p.m., alongside hearings on both parties’ Rule 50 motions. In light of the substantial overlap between the issues involved in Apple’s motion for a preliminary injunction, Apple’s motion for a permanent injunction, Apple’s motion for willfulness enhancements, and the parties’ respective Rule 50 motions, the Court believes that the interests of justice and judicial economy will be best served by addressing Apple’s requests for equitable relief together with the parties’ Rule 50 motions. Furthermore, in light of Apple’s August 27, 2012 statement indicating that it intends to seek a preliminary injunction against eight Samsung phones involving seven different intellectual property rights, the Court believes it is neither appropriate nor 1

1

feasible to set an expedited briefing and hearing schedule on Apple’s motion for a preliminary injunction in advance of Apple’s motion for a permanent injunction. Accordingly, the Court will not hold a hearing on any motion for a preliminary injunction on September 20, 2012. Instead, Apple shall file its motion for a permanent injunction and willfulness enhancements by September 21, 2012, which will be set for hearing on December 6, 2012, at 1:30 p.m., in accordance with the Court’s August 28, 2012 Order.

IT IS SO ORDERED.

Dated: August 29, 2012

[signature]
LUCY H. KOH
United States District Judge

2

Apple the next day filed a motion asking for leave to file a motion for reconsideration, based on the argument that although the jury found the device noninfringing of the D'889 patent, a design patent, it was found infringing of some utility patents, so there is some overlap between Samsung's request and Apple's motion regarding permanent injunctions. #1950's Exhibit A:
Apple moves for leave to file the motion attached hereto as Exhibit A, which seeks reconsideration of the schedule for addressing injunctive relief set by the Court’s Orders of August 28 and 29, 2012.

Reconsideration is warranted under Civil Local Rule 7(b)(1) because “a material difference in fact” exists from what the parties previously presented to the Court. When the parties addressed the post-trial schedule on August 1, Samsung did not suggest it would seek to dissolve the June 26 injunction based on the jury verdict. (Dkt. No. 1538.) Apple, therefore, did not address the schedule for any such motion. Similarly, when Samsung proposed a schedule for its motion to dissolve the injunction on August 27, Samsung did not argue that the Court should decline to consider Apple’s request for a preliminary injunction. (See Dkt. No. 1937.) Thus, Apple never had an opportunity to address the imbalance that results from addressing preliminary injunctive relief in the context of Samsung’s motion while declining to address Apple’s request for a preliminary injunction at all and delaying the hearing on a permanent injunction until two 14 and a half months later.

As explained in the attached motion, Apple’s motion for injunctive relief is more urgent than Samsung’s request to dissolve the injunction. Samsung’s motion certainly should not be addressed before Apple’s motion for injunctive relief. Apple requests that the Court grant leave for Apple to file the attached motion for reconsideration so that the imbalance created by the current schedule can be remedied.

The attached motion Apple would like to file goes like this:
The Court’s recent scheduling orders have created a severe imbalance in the schedule for addressing injunctive relief. On the one hand, based on the “substantial overlap” between motions for preliminary and permanent injunctions and for Rule 50 relief, the Court declined to consider Apple’s motion for a preliminary injunction against products that the jury has found to infringe, and set a hearing on a permanent injunction and Rule 50 motions for December 6, 2012. (Dkt. No. 1946 at 1; Dkt. No. 1945.) On the other hand, the Court set a much faster schedule for Samsung’s motion to dissolve the June 26, 2012 preliminary injunction, with Apple’s opposition due on September 7 and a hearing (if necessary) on September 20. (Dkt. No. 1945 at 2.)

Samsung’s motion to dissolve the June 26 injunction involves the same “substantial overlap” with motions for permanent injunction and Rule 50 relief as Apple’s motion for a preliminary injunction. Samsung moves to dissolve the injunction based on the jury verdict that the Galaxy Tab 10.1 does not infringe the D’889 patent. This argument is inextricably intertwined with whether JMOL should be granted on that portion of the verdict. Apple has a substantial basis for a JMOL motion, given this Court’s prior finding of likely infringement, which the Federal Circuit affirmed. Moreover, Samsung’s motion also overlaps with whether a permanent injunction should be entered in view of the jury verdict that the Galaxy Tab 10.1 infringes Apple’s utility patents.

If Apple’s request for injunctive relief is not heard until December 6 in view of the overlap with JMOL and permanent injunction motions, Samsung’s request to dissolve the injunction should also be heard on December 6 in view of the overlap with the same motions. Any other schedule would result in Samsung’s request to dissolve the injunction being addressed before Apple’s request for injunctive relief.

This Court previously found that Samsung’s smartphone and tablet sales are causing Apple to lose downstream sales that would be difficult to quantify or recover. This Court also found that Samsung failed to show irreparable harm that would warrant a stay of the Galaxy Tab 10.1 injunction, and the Federal Circuit likewise declined to stay the injunction. Apple’s request for injunctive relief is, if anything, more urgent than Samsung’s attempt to dissolve the injunction, and should not be resolved on a slower schedule than Samsung’s motion. Apple requests that the Court reconsider its prior scheduling order by setting Samsung’s motion to dissolve the June 26 injunction for hearing on the same schedule as Apple’s motion for an injunction.

And now, Samsung has filed its opposition to Apple's request, No. 1952, arguing that there is no basis for reconsideration in that there's nothing new in this picture that the judge didn't know already when she issued the scheduling order:
Defendants Samsung Electronics Co., Ltd., Samsung Electronics America, Inc., and Samsung Telecommunications America, LLC (collectively, “Samsung”) respectfully submit this opposition to the motion of Apple, Inc. (“Apple”) for leave to seek reconsideration of the Court's post-trial scheduling orders regarding injunctive relief.

Apple seeks to disrupt the Court's carefully crafted orders for post-trial motions by delaying consideration of Samsung's motion to dissolve the Galaxy Tab 10.1 preliminary injunction and placing it on the same schedule as Apple‟s motion for a permanent injunction, which will be heard December 6. The motion should denied for at least two reasons.

First, Apple has failed to satisfy the requirements for reconsideration. Northern District Civil Local Rule 7-9 requires the party seeking reconsideration to show:

(1) “a material difference in fact or law exists from that which was presented to the Court before entry of the interlocutory order which reconsideration is sought”;

(2) “new material facts or a change of law occurring after the time of such order”; or

(3) “a manifest failure by the Court to consider material facts or dispositive legal arguments which were presented to the Court before such interlocutory order.”

Civil L.R. 7-9(b). Apple purports to invoke the first ground for reconsideration—the existence of “'a material difference in fact' ... from what the parties previously presented to the Court.” (Leave Mot. 1.) But Apple fails to identify any fact that the Court was not aware of when it entered its scheduling orders of August 28 and August 29, 2012. Specifically, at the time of the orders, the Court was aware that (1) Samsung had filed a motion to dissolve the Galaxy Tab 10.1 preliminary injunction (Dkt. No. 1936); (2) Samsung had sought a shortened briefing and hearing schedule for the dissolution motion (Dkt. No. 1937); (3) Apple opposed Samsung's proposed scheduled (Dkt. No. 1938); (4) Apple desired to file a motion for preliminary injunctive relief as to different products (Dkt. No. 1940); and (5) Apple separately intended to seek permanent injunctive relief (Dkt. No. 1538). The Court evaluated the parties‟ competing positions and, in the course of two orders over two days, exercised its broad discretion to sequence and streamline

1

the post-trial proceedings. (See Dkt. Nos. 1945, 1946.) Apple has no basis for seeking reconsideration of the schedule that the Court has developed.

Second, Apple offers no legitimate grounds to delay consideration and resolution of Samsung‟s dissolution motion. There is no “asymmetry” that the Court needs to correct: dissolving an injunction issued based on purported infringement of a single patent bears no resemblance to—and certainly is not asymmetrical with—briefing and decision on an “injunction against eight Samsung phones involving seven different intellectual property rights.” (Dkt. No. 1946, at 1). Nor is Samsung's straightforward motion intertwined with the other motions for post-trial relief that will be heard on December 6, since it is premised on the incompatibility between Apple's 2011 contention that it was likely to succeed on the merits of its D'889 claim and the jury's actual finding of non-infringement of the D'889 patent. Furthermore, the jury found non-infringement based on a more complete record than was before the Court when it issued the preliminary injunction.S1 Supreme Court precedent instructs courts to take account of “significant changes in ... circumstances underlying an injunction” so that the injunction does not turn into “an instrument of wrong.” Salazar v. Buono, 130 S. Ct. 1803, 1816 (2010). Apple's proposal that the Court delay its consideration of whether to dissolve the injunction conflicts with this governing authority. Such a delay would also require Samsung either to file its opening brief on the preliminary injunction appeal (which is now due November 1) prior to resolution of its dissolution motion or to seek a further extension of that briefing schedule. The Court's existing schedule avoids these inefficiencies. There is thus no basis to permit Apple to seek reconsideration.S2

___________
S1 Apple's suggestion that it has a “substantial basis for a JMOL motion, given this Court's prior finding of likely infringement” (Mot. at 1) overlooks that this preliminary finding did not reflect the evidence presented at trial, critical portions of which were produced after the October 2011 preliminary injunction hearing.

S2 Under Civil Local Rule 7-9, Samsung need not respond to a motion for reconsideration unless the Court so requests. Samsung submits this brief on the threshold issue of whether the Court's August 28 and August 29 Orders should be reconsidered. If the Court grants leave to seek reconsideration, Samsung requests the opportunity to submit additional arguments.

2

I think I know what you are thinking. You're thinking, with the strangest jury verdict you've ever seen, why are they arguing about this scheduling business? It's all interrelated. Patience, grasshoppers, and watch two superlatively skilled law firms duke it out. Not that I like patent infringement lawsuits. But I do love to watch the skill in play.

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