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Apple -- surprise, surprise -- Wants to Keep the Preliminary Injunction v. Samsung's Galaxy Tab 10.1 in Place ~pj
Tuesday, September 11 2012 @ 12:56 PM EDT

Samsung's Galaxy Tab 10.1 was found not to be infringing on Apple's goofy rectangle with rounded corners design patent. But there was already a preliminary injunction blocking it from the US, because the Federal Circuit, which always seems to side with patent owners, thought there should be one even when the district court judge hadn't initially ordered one. Now, the jury said no, Samsung's Galaxy Tab 10.1 does not infringe, so Samsung asked the court to lift the preliminary injunction.

The judge, the Hon. Lucy Koh, asked the parties to brief the issue. Isn't it dissolved automatically, she asked? Since it's on appeal, can she act now, if it isn't? So Apple has filed its brief. I'll bet you can guess what Apple says. You are correct! It's not automatic and it should remain in place until everything is decided. Let's look at its reasoning, as opposed to its rather obvious goal of being as annoying as possible so vendors will be afraid to sell Android devices. The overall theme is, believe it or not, that Samsung's motion and Apple's motion for a permanent injunction and its motion for judgment as a matter of law should be decided together. That is precisely what the judge already said she didn't intend to do.

I start to see why she expressed so much frustration with the parties at trial. No order seems to stand without challenge. Apple simply does not yield an inch or accept her orders as meaning what they rather obviously say. I'll show you what I mean.

The filings:

1963 - Filed & Entered: 09/10/2012
Opposition/Response to Motion
Docket Text: RESPONSE (re [1936] Memorandum of Points and Authorities in Support of MOTION To Dissolve the June 26, 2012 Preliminary Injunction ) Appl filed by Apple Inc.. (Jacobs, Michael) (Filed on 9/10/2012)

1964 - Filed & Entered: 09/10/2012
Declaration in Support
Docket Text: Declaration of Kim, Grant L. in Support of [1963] Opposition/Response to Motion To Dissolve Galaxy Tab 10.1 Preliminary Injunction filed byApple Inc.. (Attachments: # (1) Exhibit Exhibit A, # (2) Exhibit Exhibit B, # (3) Exhibit Exhibit C)(Related document(s)[1963]) (Jacobs, Michael) (Filed on 9/10/2012)

The introduction to Apple's motion says it all:
INTRODUCTION

Samsung’s motion to dissolve the June 26, 2012 preliminary injunction against the Galaxy Tab 10.1 should be denied because Samsung’s appeal of that order divests this Court of jurisdiction. This Court held that Apple’s appeal of the prior order denying a preliminary injunction deprived the Court of jurisdiction to change substantial rights under that order until the Federal Circuit issued its mandate. (Dkt. No. 1032.) Similarly, Samsung’s appeal of the June 26 injunction deprives this Court of jurisdiction to dissolve the June 26 injunction.

This Court’s August 24 judgment reflecting the jury verdict did not automatically dissolve the preliminary injunction because it did not address injunctive relief. U.S. Philips Corp. v. KBC Bank N.V., 590 F.3d 1091 (9th Cir. 2010), the case cited in the Court’s September 6 Order, is inapposite because the judgment in that case resolved all issues, including injunctive relief.

Samsung’s alternative request for an immediate “indicative ruling” should be denied because it is inextricably linked with Apple’s motions for JMOL on the jury verdict that the Tab 10.1 does not infringe the D’889 patent, and for a permanent injunction against the Tab 10.1 based on the verdict that the Tab 10.1 infringes the Apple ’381, ’915, and ’163 patents. Apple will be entitled to an injunction if it prevails on either motion. Therefore, the injunction should not be dissolved until the Court decides Apple’s directly related motions.

The Court’s denial of Apple’s motion to reconsider the briefing schedule does not require that the injunction be dissolved. That order focused on the briefing schedule, and not on the merits of Samsung’s motion. Dissolving the injunction only to reinstate it shortly thereafter would cause confusion in the market and is not necessary to prevent irreparable harm. Indeed, Samsung admitted that the injunction is not likely to have a significant impact on its business, given that it is already selling a successor to the Galaxy Tab 10.1.

If the appeals court is going to rule on Samsung's appeal of the preliminary injunction, in other words, Apple says this court can't do a thing. That favors Apple, of course, because the Federal Circuit was the court that originally ruled there *should* be a preliminary injunction, so it isn't likely to change its mind that it was right at the time. But if there is going to be a permanent injunction due to infringement of other patents, according to this jury verdict, then it might be silly, Apple is saying, to lift the injunction and then put a new one in place right afterward. It might make sense to wait until all issues are resolved, including especially the injunction issue. But again, the judge already said no to that schedule. Apple is arguing that her schedule is unfair to Apple, that everything hasn't been resolved yet, and so the injunction should stay in place until it all resolved.

Samsung may argue that all issues regarding the D'889 patent, which was the reason for the preliminary injunction, *have* been resolved. There are other issues pending, but there isn't anything pending about the D'889 design patent with respect to the Galaxy Tab 10.1. Apple's response to that is that it is challenging that part of the jury's verdict in its upcoming motion for judgment as a matter of law, so everything is not yet resolved even regarding the D'889 patent claim:

The Court should decline to issue an indicative ruling now because Samsung’s motion cannot fairly be decided without resolving Apple’s motions for JMOL that the Tab 10.1 infringes the D’889 patent and for an injunction based on the verdict that the Tab 10.1 infringes the ’381, ’915, and ’163 patents (see Dkt. No. 1931 at 2-5). Samsung seeks to dissolve the injunction based on the verdict of non-infringement of the D’889 patent. Apple challenges that verdict and relies on Samsung’s infringement of Apple’s utility patents as an independent basis to enjoin the Tab 10.1. If Apple prevails on either motion, it will be entitled to an injunction against the Tab 10.1.
So Apple's suggestion is not to handle things in piecemeal fashion, but wait until it is all resolved. This is a backdoor way of trying to get them decided at the same time, which suggestion the judge already declined. She specifically said that Samsung's motion would be decided prior to Apple's permanent injunction motion, did she not? Indeed, m'lords, she did. But Apple doesn't like that scheduling decision.

Samsung made an unfortunate public statement when the preliminary injunction issued, saying it wouldn't have a major impact on its business since it wasn't selling that version of its tablet any more, so Apple quotes that to say that there will be no irreparable harm, even though Samsung had argued that it was harming its relationship with customers overall:

The Court rejected Samsung’s argument that the injunction is harming relationships with customers, emphasizing that “one who elects to build a business on a product found to infringe cannot be heard to complain if an injunction against a continuing infringement destroys the business so elected.”
However, Samsung was found *not* to infringe, so I doubt that sentence will be persuasive now. Plus Apple goes on to argue that Apple will be irreparably harmed if Samsung is allowed to sell the devices it no longer sells, which makes no sense at all, but lawyers are paid to argue, and argue they do:
In contrast, both this Court and the Federal Circuit found that Apple is “likely to suffer irreparable harm from the sales of Samsung’s infringing tablets.”
But, bub, they have been found *not* to be infringing. Apple is having a lot of trouble accepting the jury's verdict on this, I gather. I don't blame anybody for thinking that this verdict was peculiar across the board, actually, but Apple seems to like the parts that favor Apple. Anyway, Apple has posted a bond, so if the harm were only money, Samsung will get money from Apple at the end of this saga, Apple argues. Then Apple attaches as Exhibit C a screenshot showing that Samsung is still selling the Galaxy Tab 10.1 on Best Buy. I think that was a mistake on Apple's part, in that while it supports its argument that it will be harmed if Samsung gets to sell them, it also then supports Samsung's claim that not lifting the injunction is harming Samsung's business.

Besides mere sales, what about its reputation? Where does Samsung go to fix that? And the longer its Galaxy Tab 10.1 is held in limbo, despite being found innocent of infringement of the design patent, the deeper the harm goes from a PR perspective, which is the real reason, I suspect, that Apple is fighting so hard to keep everything in limbo. It actually wants to have the Galaxy Tab 10.1 permanently banned:

Samsung argues that an “extended briefing schedule” is not necessary on its motion because the jury “rejected the sole ground” on which the Tab 10.1 injunction was based. (Dkt. No. 1943 at 1.) Samsung does not dispute, however, that the injunction should remain in effect if the Court grants Apple’s motion for JMOL that the Tab 10.1 infringes the D’889 patent. Nor does Samsung dispute that the jury found the Tab 10.1 infringes Apple’s ’381, ’915, and ’163 patents; that Samsung Electronics took action that it knew or should have known would induce its U.S. affiliates to infringe those patents; and that Samsung’s infringement was willful. (See Dkt. No. 1931 at 2-5, 9.) That verdict should result in a permanent injunction against the Tab 10.1.
So that's the game here. The purpose is PR. And remember, Samsung will also be filing a JMOL motion, so what Apple is actually arguing is that even though Samsung won on the D'889 claim, it lost on three utility patents, and so the D'889 preliminary injunction should stay in place in case the judge rules favorably on the '381, '915 and '163 patents by putting a new permanent injunction in place or in case the judge overrules the jury. That doesn't sound quite right to me, but I'm not a lawyer, and logic isn't always what wins in a court of law.

Apple, which already was told that Samsung's preliminary injunction relief would be decided prior to Apple's permanent injunction motion nevertheless *again* argues that they should all be decided together even if the hearings are months apart:

If there were an urgent need to decide Samsung’s motion, Apple’s related Tab 10.1 motions could be briefed and decided at the same time. The Court concluded, however, 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.” (Dkt. No. 1946 at 1.) Similarly, the interests of justice and judicial economy will be best served by deciding Samsung’s request to dissolve the Tab 10.1 injunction at the same time that Apple’s motions are resolved.
Apple just doesn't take no for an answer. That's what you get with high power firms, of course. They aren't paid the big bucks to stand there and say to a judge, "OK, whatever you say, Your Honor". Still, I can imagine Judge Koh's face when she gets to that paragraph. The question is, will she fold in exhaustion or stick to her earlier decision?

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