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Apple's Game Revealed in Apple v. Samsung Post-Trial Skirmishes ~pj
Wednesday, April 17 2013 @ 03:36 PM EDT

Apple has filed several new documents in Apple v. Samsung -- the trial that never ends. The main issue is whether Samsung's request [PDF] for a stay in holding the new trial on damages should be granted. Apple votes no [PDF], again. It would prefer not to wait until the USPTO and the courts finish the reexaminations of two of Apple's patents, preferring an immediate retrial.

Why? It means setting damages for at least one patent claim the USPTO just decided isn't valid in a final office action and another patent that has been ruled preliminarily invalid, but this is Apple. It indicates it will appeal until it gets what it feels is the outcome it wants.

But that's not the real game. The real game is to get the appeals over with before the reexaminations plus all its appeals are finished, because, as Apple itself states, if a final invalidity ruling arrives after the appeals process is over, it doesn't "disturb an earlier final court judgment awarding damages for past infringement of those claims." So that's Apple's game. Take the money and run. It wants the damages trial to happen right away, so that the appeals process can get going quickly, to try to beat the timeline on the USPTO findings of invalidity. That way, even if the patents are ultimately found to be indeed invalid, Samsung will still have to pay the damages the deluded earlier jury sets.

Do you admire Apple for angling for such an outcome? I don't either.

See what happens when a jury gets things so very wrong? They wanted to "send a message" but the message turns out to be that US patent law can be wildly unfair. Samsung can be forced to pay for invalid patents, because that's how patent law in the US works currently. How do you like it? Think some reform might be in order? Add on top that these are software patents, which some, including me, think are not properly patentable subject matter, and it's cringe-worthy to watch this case play out like this.

The filings:

2306 - Filed & Entered: 04/10/2013
CONDITIONAL MOTION for Reconsideration of [2271] Order Granting New Damages Trial on Galaxy's II AT&T and Infuse 4G filed by Apple Inc.. (Attachments: # (1) Proposed Order)(Jacobs, Michael) (Filed on 4/10/2013) Modified text on 4/11/2013 (dhmS, COURT STAFF).

2307 - Filed & Entered: 04/16/2013
NOTICE of Change of Address by Charles S. Barquist (Barquist, Charles) (Filed on 4/16/2013)

2308 - Filed & Entered: 04/16/2013
RESPONSE to re [2304] Response ( Non Motion ), Apples Response to Samsung's Statement Regarding Patents in Reexamination by Apple Inc.. (Jacobs, Michael) (Filed on 4/16/2013)

2309 - Filed & Entered: 04/16/2013
Declaration of Nathan Sabri in Support of [2308] Response ( Non Motion ) filed byApple Inc.. (Attachments: # (1) Exhibit A, # (2) Exhibit B, # (3) Exhibit C)(Related document(s)[2308]) (Jacobs, Michael) (Filed on 4/16/2013)

2310 - Filed & Entered: 04/16/2013
RESPONSE to re [2299] Order on Stipulation, Order on Motion for Hearing, Order on Motion for Leave to File, Order on Motion for Reconsideration,,,, Apple's Reply to Samsung's Response to April 2, 2013 Order (ECF No. 2299) Regarding Appealability of March 1 Order Re Damages by Apple Inc.. (Jacobs, Michael) (Filed on 4/16/2013)

Apple asks the judge [PDF], the Hon. Lucy Koh, to correct her math in her March 1st order, saying she used the wrong date when granting Samsung's motion for a new trial on damages with respect to two products. Apple says the parties had reached a stipulation on the date the two were first sold, and that date is not the date the judge used. No one reaching determinations in this trial seems able to do math, but the truth is, the court allowed too many patents to be tried at once covering too many products, unlike Judge William Alsup in the Oracle v. Google trial. He streamlined it so it was at least something you could fit in your brain all at once, and that paid off. You don't see post-trial motions going on and on to time indefinite in that case.

Morrison & Foerster, Apple's law firm, next lets the court know that its L.A. office address has changed [PDF]. The move clearly hasn't impacted the lawyers' productivity. No doubt the firm is aware that this case will be bringing in the money for years to come. Thermonuclear patent wars cost mucho dinero, which is fine with the law firms. It's up to the client to tell them to stop. They'll happily carry your flag as long as you keep paying them.

Apple also contradicts [PDF] Samsung's reexamination predictions as to how long the reexaminations will take, expresses its confidence that Apple will prevail in the end, but says that end won't happen until mid-2017, unless the final office action is more quickly reversed by the USPTO and validity confirmed after all, so there's no reason to grant Samsung a stay. Translation: Apple will certainly appeal the ruling that claim 19 of its '381 patent is invalid and any other such rulings to the ultimate extent possible, and if it takes until 2017 for all that to play out, it will do it. Or at least it wants the judge to feel so exhausted at the thought that this case will perhaps still be on her docket in 2017, she decides to have an immediate damages trial to escape that fate. My first thought on reading this certainly was, "I hope I'm not still writing about this case for four more years!"

And finally Apple repeats its opposition [PDF] to Samsung's motion for a partial final judgment "for the reasons Apple has stated previously." Apple wants what it wants, an immediate retrial on damages and then a final order, not a partial final judgment now and a stay on retrying the rest, as Samsung has requested: "Accordingly, Apple believes that the March 1 Order may only be appealed after this Court holds a new trial on damages, calculates supplemental damages and pre-judgment interest, and enters a final judgment disposing of all claims in this case."

Here's Apple's calculations on how long the reexaminations of the '381 and '915 patents will take to conclude, from #2008, and notice the real reason it wants what it wants:

Samsung’s reexaminations statement ignores important steps in the process and USPTO statistics on completion times. Apple is confident that the claims will be confirmed in the reexaminations. But if final adverse decisions were the ultimate result, they likely would not occur until mid-2017 or later. The reexaminations should therefore not affect any decision now before this Court. Samsung’s requested stay is unwarranted and prejudicial.

The ’381 and ’915 reexaminations are many years from completion, unless they culminate in an earlier finding that the claims are patentable. The attached USPTO flowcharts, annotated to show the ’381 and ’915 reexaminations’ status, show the variety of paths reexaminations can take. (Sabri Decl. Ex. A.) Apple must respond by May 29, 2013, to a final office action in the ’381 reexamination, after which the examiner may reopen prosecution or find the claims patentable. (Id.; Dkt. 2291-1 at 2, 4; 37 C.F.R. § 1.116.) If the examiner maintains the rejection, Apple may file a notice of appeal to the PTAB by June 29, 2013. (MPEP 2265.I.) USPTO statistics show that the average time from notice of appeal to a PTAB decision as of 2012 was 36 months, or in this case June 2016. (Sabri Decl. Ex. B.)1 Apple may further request rehearing of any adverse PTAB decision (37 C.F.R. § 41.52(a)(1)), which would toll the deadline to appeal to the Federal Circuit (37 C.F.R. § 1.304(a)(1)), or appeal directly to the Federal Circuit (35 U.S.C. § 141). Federal Circuit statistics show that the median time from docketing to 18 disposition of cases originating from the USPTO as of 2012 was roughly 12 months. (Sabri Decl. Ex. C.) Thus, if the ’381 reexamination proceeds adversely to Apple, it is unlikely to reach final resolution until, on average, June 2017. The ’915 reexamination is at an even earlier stage.

The reexaminations on Apple’s patents should not affect this Court’s decisions on a new trial. Truly final adverse reexamination outcomes are unlikely to result (if at all) until well after the resolution of any appeal from this litigation. The Federal Circuit has indicated that, under its precedent, subsequent cancellation of claims in a reexamination does not disturb an earlier final court judgment awarding damages for past infringement of those claims. See In re Baxter Int’l, Inc., 698 F.3d 1349, 1351 (Fed. Cir. 2012). The pending reexaminations, which are 2 years from final, should therefore not affect any decision presently before this Court.

1 Samsung cites MPEP 2286 to support its suggestion that expedition will lead to a final PTAB decision 6-8 months after a request for oral hearing, but this section addresses only the possibility of shortened office action response periods before the examiner. (MPEP 2286.)

Capice? Apple wants Samsung to be ordered to pay damages on patents that probably will be found invalid, according to current USPTO rulings, and Apple wants to hurry up and make that happen right away, so that even if the USPTO and the courts reviewing its decisions ultimately decide the patents are indeed invalid, Samsung still has to pay. "Apple’s legitimate interests in achieving a timely conclusion to this case, having already prosecuted the case for two years and earned a jury verdict in its favor, would be prejudiced by putting this case on hold." But the jury goofed big time. Apple is acting like that doesn't matter enough to disturb the usual time flow.

Does that sound fair to you? Isn't justice supposed to be the desired outcome? "Samsung’s proposal would lead to delay and inefficiencies," Apple writes, but delay is what Samsung is asking for, so as to ensure fairness in the end. I'm sounding so naive. Here's your real patent law at work. It's all about gaming the system, being clever and winning even if you don't deserve to.

Anyway, now you understand what this little battle of legal wits is all about. Fairness and justice isn't on the Apple table in these filings, not by my lights. I read all this and feel like I need a shower to wash the ick off. I only wish Apple felt the same way.

Ultimately it's up to the judge. We'll see if she cares about fairness for Samsung at the end or more about efficiency. Surely, though, fairness is more important than administrative efficiency in promptly getting things wrong. No? Stay tuned.

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