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Judge Koh Slices and Dices the Evidence in Apple v Samsung ~pj
Thursday, January 03 2013 @ 11:35 AM EST

Judge Lucy Koh, the presiding judge in the Apple v. Samsung litigations, warned [PDF] the parties that she would ignore any arguments in their attachments to their post-trial motions that were new and therefore a backdoor way of bypassing the page limits she set for them, writing that "Any argument that is not explicitly articulated within the briefing page limits will be disregarded. Any supporting documentation shall be for corroboration purposes solely and shall not be used as a vehicle for circumventing the Court’s page limits.”

And she meant it, it now turns out. She has given them a list of what she will not consider in her Order Striking Evidence [PDF], and it's both sides misbehaving.

So now we know why these law firms have been annoying her so much. She gives them limits, and they simply ignore them.

Also, Apple has brought a case to the court's attention, another super-plaintiff-friendly ruling from the Federal Circuit. And the parties continue to fight with the court over the issue of sealing materials. This judge isn't receptive, and while she earlier stayed her orders to unseal on the basis that she'd wait until the Federal Circuit could rule on appeals, now she denies a Samsung stay request.

And I found for you some material on what impact reexamination of a patent can have on litigation. I saw a lot of questions from you in your comments, so I researched it a bit for you.

Here's the list of evidence stricken:

ECF No. 2054-01, Erdem Decl. (entire document)

ECF No. 2054-03, Sukumar Decl. (entire document)

ECF No. 2054-04, Wind Decl. (entire document)

ECF No. 2057, Lucente Decl., ¶¶ 22-30

ECF No. 2065, Wagner Decl., ¶¶ 11-145, 147-228, Exhs. 1, 3-21, 23-53, 55-212

ECF No. 2129, Robinson Decl., ¶ 5

ECF No. 2130, Hauser Decl., ¶¶ 19-29

ECF No. 2127-3, Singh Decl. (entire document)

ECF No. 1982-2, Musika Decl., ¶¶ 10-29, 31-37, 40-53, 55-60, Exhs. 1-40, 44, 48-63, 66-68

ECF No. 1985, Schiller Decl., ¶¶ 4-9

You can match the list up with the filings on our permanent timeline pages, Apple v. Samsung page 1: docket numbers 1-1747 and page two: docket 1748 onward. Onward to eternity, it seems.

Wait, I can easily do it for you.

Samsung's excluded evidence:

ECF No. 2054-01, Erdem Decl. (entire document)

ECF No. 2054-03, Sukumar Decl. (entire document)

ECF No. 2054-04, Wind Decl. (entire document)

ECF No. 2057, Lucente Decl., ¶¶ 22-30

ECF No. 2065, Wagner Decl., ¶¶ 11-145, 147-228, Exhs. 1, 3-21, 23-53, 55-212

These are all declarations attached to Samsung's Opposition [PDF] to Apple's motion [PDF] for a permanent injunction and damages enhancement, or in support of it. The former Apple request the judge already denied, but damages enhancements are still to be decided. The exhibits on the last item, the Wagner declaration, are mostly filed in paper form only, so we don't have them. But if you go to the page, you can find some of them, like Exhibit 53, Exhibit 56, and Exhibit 57

Apple's stricken evidence:

ECF No. 2129, Robinson Decl., ¶ 5

ECF No. 2130, Hauser Decl., ¶¶ 19-29

ECF No. 2127-3, Singh Decl. (entire document)

ECF No. 1982-2, Musika Decl., ¶¶ 10-29, 31-37, 40-53, 55-60, Exhs. 1-40, 44, 48-63, 66-68 [You can find all the exhibits on the Timeline page]

ECF No. 1985, Schiller Decl., ¶¶ 4-9

These were all in support of Apple's motion for a permanent injunction and enhanced damages.

Here are all the rest of the filings:

2204 - Filed & Entered: 12/21/2012
Administrative Motion to File Under Seal - Non-Party IDC Research, Inc.'s Administrative Motion To Seal filed by IDC Research, Inc.. (Attachments: # (1) Declaration (C. Del Prete), # (2) Proposed Order)(White, Gabriel) (Filed on 12/21/2012)

2205 - Filed & Entered: 12/21/2012
Transmission of Notice of Appeal and Docket Sheet to the Federal Circuit Court of Appeals as to [2203] Notice of Appeal to the Federal Circuit. Filing fee paid $ 455. Appeal Record due by 1/22/2013. (documents emailed to the Federal Circuit)(dhmS, COURT STAFF) (Filed on 12/21/2012)

2206 - Filed & Entered: 12/21/2012
NOTICE by Apple Inc. re [2190] Order on Administrative Motion to File Under Seal, Apples Reply In Support Of Motion For A Permanent Injunction And For Damages Enhancements (Public Redacted Version, Previously Filed Under Seal) (Attachments: # (1) Hung Decl. Ex. 17 (Redacted Public Version, Previously Filed Under Seal), # (2) Singh Declaration re Reply ISO Perm Injunction (Redacted Public Version, Previously Filed Under Seal), # (3) Hung Ex. 9 (Previously Filed Under Seal), # (4) Hung Ex. 12 (Previously Filed Under Seal))(Hung, Richard) (Filed on 12/21/2012)

2207 - Filed & Entered: 12/21/2012
Statement of Recent Decision by Apple Inc.. (Jacobs, Michael) (Filed on 12/21/2012)

2208 - Filed & Entered: 12/26/2012
RESPONSE (re [2204] Administrative Motion to File Under Seal - Non-Party IDC Research, Inc.'s Administrative Motion To Seal ) Samsung's Partial Opposition to IDC's Administrative Motion to Seal filed bySamsung Electronics America, Inc.(a New York corporation), Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC. (Maroulis, Victoria) (Filed on 12/26/2012)

2209 - Filed & Entered: 12/28/2012
NOTICE OF APPEAL to the Federal Circuit as to [2168] Order on Administrative Motion to File Under Seal, by Apple Inc.. Filing fee $ 455, receipt number 0971-7372368. Appeal Record due by 1/28/2013. (Selwyn, Mark) (Filed on 12/28/2012)

2210 - Filed & Entered: 01/01/2013
ORDER by Judge Lucy H. Koh granting in part and denying in part 2180 Administrative Motion to File Under Seal; denying 2187 Administrative Motion to File Under Seal (lhklc2, COURT STAFF) (Filed on 1/1/2013) (Entered: 01/01/2013)

2211 - Filed & Entered: 01/01/2013
ORDER by Judge Lucy H. Koh denying 2201 Motion to Stay (lhklc2, COURT STAFF) (Filed on 1/1/2013) (Entered: 01/01/2013)

2212 - Filed & Entered: 01/02/2013
ORDER STRIKING EVIDENCE. Signed by Judge Lucy H. Koh on 1/2/2013. (lhklc2, COURT STAFF) (Filed on 1/2/2013) (Entered: 01/02/2013)

2213 - Filed & Entered: 01/02/2013
Administrative Motion to File Under Seal Samsung's Renewed Administrative Motion to Seal re Exhibit 1 to the Ahn Declaration in Support of Apple's Opposition to Samsung's Motion for Leave to File the Supplemental Declaration of Stephen Gray filed by Samsung Electronics America, Inc.(a New York corporation), Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC. (Attachments: # 1 Declaration of Hankil Kang, # 2 Exhibit A to the Kang Declaration, # 3 Proposed Order Granting Samsung's Renewed Administrative Motion to Seal)(Maroulis, Victoria) (Filed on 1/2/2013) (Entered: 01/02/2013)

Here's why the judge refuses to stay her latest unsealing order:
Samsung has not asked the Federal Circuit to rule on whether sales figures that do not reveal anything about revenue and pricing can be sealed, and this Court has concluded that such data may not be sealed. Accordingly, the Federal Circuit’s ruling on the issue of the sealability of pricing and profit information will not bear on this Court’s analysis of the sealability of the number of units sold. Accordingly, Samsung’s motion to stay is DENIED.
And the case Apple wants the court to notice is Presidio 3 Components Inc. v. Am. Tech. Ceramics Corp.. It is a December case from the Federal Circuit, once again strongly favoring patentees' rights to be awarded injunctions, and that is why Apple wants to be sure the court see it.

The law firm of Feldman Gate in a PowerPoint presentation explains post-eBay cases on the topic of royalties, specifically on"The Evolving Case Law on Damages for Post-Verdict Infringement", and it mentions the same case:

Most recently, one court ordered the parties to brief the issue of whether they should be given an opportunity to negotiate the rate first or whether the court should impose a rate.
Presidio Components Inc. v. American Tech. Ceramics Corp., No. 08-CV-335-IEG (NLS), 2010 WL 1462757 (S.D. Cal. Apr. 13, 2010).

Since the parties could not even agree on this issue, the court went ahead and imposed a rate without giving the parties an opportunity to negotiate.
Presidio Components Inc. v. American Tech. Ceramics Corp., No. 08-CV-335-IEG (NLS), 2010 WL 3070370 (S.D. Cal. Aug. 5, 2010). Defendant wanted court to order negotiations
Patent owner said parties were not likely to agree so court should order rate
Court took supplemental briefing on proposed rates, and since so divergent, decided to order rate

But that's talking about the district court, and the district court also denied an injunction, based on a lack of perceived irreparable injury. At the end of the trial, both sides appealed to the Federal Circuit, and that decision, just issued, goes like this on the subject of lost sales:
On cross-appeal, Presidio contends the district court erred in denying a permanent injunction in light of its finding that the ′356 patent is not invalid and infringed by ATC's 545L capacitors. Presidio and ATC both challenge the district court's ongoing royalty determination, awarded in light of the court's denial of a permanent injunction. Based on the four-factor test for permanent injunctions, the district court denied Presidio's request for a permanent injunction. Specifically the trial court detected no irreparable injury or inadequacy of monetary damages. The court also found that the balance of hardships favored injunction, while the public interest tipped in ATC's favor. The trial court noted that “substantial evidence supported the jury's finding that demand existed for the BB capacitors, which compete with the 545L capacitors.” With this direct competition in the same market, the district court still opined that ATC was not a direct competitor for purposes of finding irreparable injury. Presidio, 723 F.Supp.2d at 1326, 1336–37. The tension created by acknowledging competition for one purpose but not for another, combined with Presidio's other evidence showing irreparable injury, shows that the district court clearly erred by dismissing the irreparable injury evident on this record.

Of course the axiomatic remedy for trespass on property rights is removal of the trespasser. See 35 U.S.C. § 154(a)(1) (“Every patent shall contain ․ a grant to the patentee of the right to exclude others from making, using, offering for sale, or selling the invention․”). However, particularly with an eye to protecting the public interest, the decision to deny a permanent injunction remains within the equitable discretion of the district courts. eBay Inc. v. MercExchange, LLC, 547 U.S. 388, 391, 126 S.Ct. 1837, 164 L.Ed.2d 641 (2006). A trial court, though, can misapply and abuse that discretion with “a clear error of judgment in weighing relevant factors or ․ an error of law or clearly erroneous factual findings.” Innogenetics, N.V. v. Abbott Labs., 512 F.3d 1363, 1379 (Fed.Cir.2008) (quoting Joy Techs., Inc. v. Flakt, Inc., 6 F.3d 770, 772 (Fed.Cir.1993)). “To the extent the court's decision is based upon an issue of law, we review that issue de novo.” Sanofi–Synthelabo v. Apotex, Inc., 470 F.3d 1368, 1374 (Fed.Cir.2006).

Equity sets forth the four-factor test for removal of a trespasser from property infringement. eBay, 547 U.S. at 391. This analysis proceeds with an eye to the “long tradition of equity practice” granting “injunctive relief upon a finding of infringement in the vast majority of patent cases.” Id. at 395 (Roberts, C.J., concurring). This historical practice of protecting the right to exclude through injunctive relief is not surprising given the difficulties of protecting this right solely with monetary relief. Indeed, a calculating infringer may thus decide to risk a delayed payment to obtain use of valuable property without prior negotiation or the owner's permission. While a patentee is not entitled to an injunction in every case, “it does not follow that courts should entirely ignore the fundamental nature of patents as property rights granting the owner the right to exclude.” Robert Bosch LLC v. Pylon Mfg. Corp., 659 F.3d 1142, 1149 (Fed.Cir.2011). This court reviews the district court's decision to impose an ongoing royalty, in light of its denial of a permanent injunction, for abuse of discretion. Paice LLC v. Toyota Motor Corp., 504 F.3d 1293, 1315 (Fed.Cir.2007).

Hmm. Sounds like Apple and Microsoft, avoiding payment for FRAND patents. If every patentee has the right to exclude others from using its patent, on what basis would anyone argue that owners of FRAND patents are breaking any law by asking for one?

I also found for you on the Patents Post Grant Blog this article on what impact reexamination of a patent can have on litigation, "Is Evidence of a Concurrent Reexamination Admissible in Litigation?" -- this is part 4 in a series on the subject, but it's the one that most closely matches the questions I've seen you asking in your comments. Keep in mind that some things changed with the America Invents Act, and that blog will keep you up to date on reexaminations, assuming you can stand to read about the AIA. Isn't patent law the absolute worst? I can't believe, sometimes, I'm writing about it day after blooming day.

Life presents its surprises, does it not?


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