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Federal Circuit Denies Apple's Request for Rehearing En Banc ~pj
Friday, February 01 2013 @ 04:15 AM EST

Apple just lost another round. The US Court of Appeals for the Federal Circuit has denied Apple's petition for en banc review of Judge Lucy Koh's decision not to order a permanent injunction against Samsung. The court also denied Apple's motion asking for permission to file a reply brief.

Say, how's that thermonuclear war against Android working out?

Here are the orders:

  • The Federal Circuit's Order Denying Apple's Motion to File a Repy Brief
  • The Court's Order Denying Rehearing
Just to remind you, here's why Apple thought this was worth petitioning the court, the Statement of Counsel, where they tell the court why the case matters:

Based on my professional judgment, I believe the panel decision is contrary to the following decisions of the Supreme Court and this Court: Winter v. NRDC, 555 U.S. 7 (2008); eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388 (2006); Edwards Lifesciences AG v. Corevalve, Inc., 2012 WL 5476839 (Fed. Cir. Nov. 13, 2012); Apple, Inc. v. Samsung Elecs. Co., 678 F.3d 1314 (Fed. Cir. 2012); Robert Bosch LLC v. Pylon Mfg. Corp., 659 F.3d 1142 (Fed. Cir. 2011);, Inc. v. Lansa, Inc., 346 F.3d 1374 (Fed. Cir. 2003); Carl Zeiss Stiftung v. Renishaw PLC, 945 F.2d 1173 (Fed. Cir. 1991). In addition, this appeal requires answers to the following precedent-setting questions of exceptional importance: 1) whether the Court erred in vacating a preliminary injunction for lack of a “causal nexus” even though the district court found that all four traditional factors favor equitable relief; and 2) whether the Court erred in construing a claim containing open-ended “comprising” language as “closed-ended” because it includes the word “each.”

The thing is, if money can make you whole, what exactly do you need an injunction for?

Samsung's introduction went like this:

Apple’s Petition for Rehearing En Banc should be denied. First, this Court should not review en banc the panel’s unanimous holding that, in order to obtain injunctive relief in a case where an accused product contains many features, a “patentee must . . . show that the infringing feature drives consumer demand for the accused product” (Slip op. 8 (emphasis added)). Despite Apple’s rhetoric, that requirement does not impose “a new prerequisite to preliminary injunctive relief” (Pet. 6), nor does the panel’s holding work any “unprecedented [] jurisprudential shift” (id.) or otherwise conflict with any decision of the Supreme Court or this Court. To the contrary, such a causal-nexus requirement is an inherent, well-established aspect of irreparable harm analysis as well as of patent principles that foreclose “leverag[ing] [a] patent for competitive gain beyond that which the inventive contribution and value of the patent warrant” (Slip op. 7).

I don't know anybody who thought the court was likely to say yes to Apple's petition for en banc review of the panel's unanimous ruling.

Well. Florian Mueller got excited about Apple's hopes.1 He wrote you that Judge Koh's ruling was unprecedented.1

Here's why Samsung said that Apple's hysteria about an alleged "new" requirement, the causal nexus requirement, was uncalled for:


Contrary to Apple’s contentions (Pet. 6-7), the panel treated causal nexus as an aspect of the traditional inquiry into irreparable harm (Slip op. 7 (noting they are “inextricably related”)), and thus did not add a new, fifth requirement to the traditional four equitable factors. Nor is Apple correct in asserting (Pet. 4-5) that the panel created a new “feature-specific” causal-nexus requirement. To the contrary, the panel merely applied the settled rule that irreparable harm requires “a causal nexus between the harm alleged and the infringing conduct” (Slip op. 6 (emphasis added)) to a case “where the accused product includes many features of which only one (or a small minority) infringe” (id.). Nothing about this reasoning is novel,1 nor does it create any conflict furnishing ground for en banc review.

1 Injunctions have long been denied for lack of causal nexus between alleged illegality and injury outside the patent area. See, e.g., Cant Strip Corp. of Am. v. Schuller Int’l, Inc., No. 93-15425, 1994 WL 475862, at *4 (9th Cir. Sept. 1, 1994) (finding “no nexus between the threatened harm and improper conduct by [defendant]”) (citing Stanley v. Univ. of S. Cal., 13 F.3d 1313, 1324-25 (9th Cir. 1994)); Perfetti Van Melle USA v. Cadbury Adams USA LLC, 732 F. Supp. 2d 712, 725-26 (E.D. Ky. 2010) (finding no “causal connection” between reduced sales and defendants’ use of a diluting trademark); Procter & Gamble Co. v. Ultreo, Inc., 574 F. Supp. 2d 339, 352 (S.D.N.Y. 2008) (finding no “causal nexus between the allegedly false advertising and sales potentially lost” by plaintiff); Mostaghim v. Fashion Inst. of Tech., No. 01-8090, 2001 WL 1537545, at *3 (S.D.N.Y. Dec. 3, 2001) (“The only potential irreparable harm . . . has no causal nexus with the alleged FERPA violation.”).

How can Judge Koh's ruling be called unprecedented when Samsung provided this long list of cases? And think about the world Apple was trying for -- where you can get an injunction even if your piddly patent that nobody knows about or cares about isn't related to why people buy the infringing product. Now think about the reality of smartphones and patents -- that there are approximately 200,000 and more patents on any smartphone. If all those patent holders actually go after injunctions, who can stay in business in an atmosphere like that?

Apple wants what it wants. But US courts think about more than just one party's interests in one lawsuit. They think about the marketplace and the public interest. The smartphone patents wars are opening people's eyes to just how toxic the US patent system really is. And once you think about the public interest and how extreme positions will likely affect the market, extreme positions have a way of not working out long-term in courts of law. You might have noticed that in the SCO saga.

Now, with the Federal Circuit refusing to rethink the panel's earlier upholding of Judge Koh's order, it's clear that her order and her reasoning on the causal nexus requirement was not unprecedented. And it wasn't wrong, because now it has been upheld not once but twice.

Yes, technically Apple can ask the US Supreme Court to step in, but what are the odds? I mean, there wasn't a single amicus brief on Apple's behalf filed with the Federal Circuit. So, I'll illustrate Apple's odds. Please put your palms together really tight. Got them together? Now put your hands in front of your eyes. See the space between them? That's how big Apple's chances are that the highest court in the land is going to take this case.

That doesn't mean Apple won't try. That's the worst thing about going thermonuclear, actually. It's hard to put on the brakes, once you really get going.



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