US federal appeals court reverses Galaxy Nexus sales ban(arstechnica.com)
arstechnica.com
US federal appeals court reverses Galaxy Nexus sales ban
http://arstechnica.com/tech-policy/2012/10/us-federal-appeals-court-reverses-galaxy-nexus-sales-ban/
10 comments
> a preliminary injunction will often involve some sort of bond requirement
So depending on how large that is, it can say a bit about how serious Apple is about this stuff (or how deep their pockets are, maybe)? For anybody who's curious, like I was, the bond amount was $95,637,141.60 (~$95.6 million) [1]. Is Samsung now entitled to get some of that because of the unjustified preliminary junction? Or only if they win?
[1] http://assets.sbnation.com/assets/1221082/show_temp.pdf
So depending on how large that is, it can say a bit about how serious Apple is about this stuff (or how deep their pockets are, maybe)? For anybody who's curious, like I was, the bond amount was $95,637,141.60 (~$95.6 million) [1]. Is Samsung now entitled to get some of that because of the unjustified preliminary junction? Or only if they win?
[1] http://assets.sbnation.com/assets/1221082/show_temp.pdf
I would guess that because the appeals court decided that granting the injunction was decided by the judge on improper grounds, Apple doesn't have to lose the bond amount. Apple's claims were not proven wrong, but the judge made the wrong decision based on Apple's claims.
I am not a lawyer.
I am not a lawyer.
This is wrong.
I can't talk about this case specifically for various legal reasons, but:
In general these bonds are exactly to pay for lost sales due to a preliminary injunction that wasn't deserved. The injunction does not even become effective until the bond is posted. The only case you wouldn't recover is if the injunction wasn't upheld but you lost the lawsuit anyway, and even then, it depends on what "lost" means. This should be rare, since injunctions take into account "likelihood of success on the merits".
Additionally, if you win, it doesn't even matter whether the injunction was deserved at the time, you can still recover on the bond because you were enjoined from doing something you had the right to be doing.
As for whether it matters if it was the judges fault or Apple's fault: For patent cases like this, there are no grounds for reversing a preliminary injunction except deciding it was an abuse of discretion (since that is the standard of review for this kind of injunction). So all reversals are because it was granted improperly by the judge.
I am a patent attorney.
I can't talk about this case specifically for various legal reasons, but:
In general these bonds are exactly to pay for lost sales due to a preliminary injunction that wasn't deserved. The injunction does not even become effective until the bond is posted. The only case you wouldn't recover is if the injunction wasn't upheld but you lost the lawsuit anyway, and even then, it depends on what "lost" means. This should be rare, since injunctions take into account "likelihood of success on the merits".
Additionally, if you win, it doesn't even matter whether the injunction was deserved at the time, you can still recover on the bond because you were enjoined from doing something you had the right to be doing.
As for whether it matters if it was the judges fault or Apple's fault: For patent cases like this, there are no grounds for reversing a preliminary injunction except deciding it was an abuse of discretion (since that is the standard of review for this kind of injunction). So all reversals are because it was granted improperly by the judge.
I am a patent attorney.
Actually proving irreparable damage should be the status quo before any such injunctions happen. I feel that these injunctions are granted far too easily. Isn't the injunction supposed to happen only if they cause "irreparable" damage to the other party if they keep being sold?
Plus, there needs to be made a clear distinction between that flavor of "irreparable damage" and "competition". Say that one company does indeed infringe on another's patent, but it's a pretty non-important patent (like that bounce-effect one). And say that the device is very popular because it's a great overall device for many other reasons other than that small piece of technology. And say that this device is so popular that it does indeed create lower sales for the other device.
Could the other company prove "irreparable damage" and ban the product from the market, when 99.99% of the reason it lost sales was because of competition, and that it was a better device (or had better marketing) ? Such a device should never be banned from the market based on a trivial patent, even if the patent is "valid".
Plus, there needs to be made a clear distinction between that flavor of "irreparable damage" and "competition". Say that one company does indeed infringe on another's patent, but it's a pretty non-important patent (like that bounce-effect one). And say that the device is very popular because it's a great overall device for many other reasons other than that small piece of technology. And say that this device is so popular that it does indeed create lower sales for the other device.
Could the other company prove "irreparable damage" and ban the product from the market, when 99.99% of the reason it lost sales was because of competition, and that it was a better device (or had better marketing) ? Such a device should never be banned from the market based on a trivial patent, even if the patent is "valid".
That is precisely what is the case. Proving irreparable damage is one of the necessary preconditions to obtaining a preliminary injunction. And irreparable damage is distinguished from competition. You cannot prove irreparable damage from lost sales with an unimportant patent--it has to be so central that people buy the product because of the infringed patent.
That's basically exactly what this decision says. The judge shouldn't have granted the preliminary injunction because Apple didn't prove irreparable damage, and Apple didn't prove irreparable damage because they didn't show that the infringed patent is what caused people to buy the Galaxy Nexus.
That's basically exactly what this decision says. The judge shouldn't have granted the preliminary injunction because Apple didn't prove irreparable damage, and Apple didn't prove irreparable damage because they didn't show that the infringed patent is what caused people to buy the Galaxy Nexus.
That is an interesting remand. This part stuck out for me:
"Having held that the district court’s irreparable harm determination was an abuse of discretion, we would ordinarily refrain from addressing other issues. Here, however, it is in the interest of judicial economy that we address a limited aspect of the district court’s likelihood of success analysis that may become important on remand — claim construction."
(note this straddles page 12 and 13 of the PDF [1]) I am not a lawyer, I have dealt with many though, and I've dealt with them on patent cases. Reading this from the Appeals court is like Steve Jobs saying "Oh and one more thing." They say "we could have stopped here but in the interest of judicial economy we'll add a bit more." I read that to mean the Federal Circuit disagrees with the possible infringement of this patent in the first place. They go into a long discussion about what Apple is claiming, point out that Apple's legal construction is convoluted and then say,
"We hold that the district court’s determination that 'each' modifies 'plurality of heuristic modules' is erroneous because it contravenes the plain terms of the claim. The word 'each' appears not before 'plurality of modules,' but inside the 'wherein' clause and before the phrase 'heuristic modules.'"
This feels like the Federal Circuit telling Judge Koh she needs to go back and re-examine her whole line of reasoning on this patent.
[1] http://www.cafc.uscourts.gov/images/stories/opinions-orders/...
"Having held that the district court’s irreparable harm determination was an abuse of discretion, we would ordinarily refrain from addressing other issues. Here, however, it is in the interest of judicial economy that we address a limited aspect of the district court’s likelihood of success analysis that may become important on remand — claim construction."
(note this straddles page 12 and 13 of the PDF [1]) I am not a lawyer, I have dealt with many though, and I've dealt with them on patent cases. Reading this from the Appeals court is like Steve Jobs saying "Oh and one more thing." They say "we could have stopped here but in the interest of judicial economy we'll add a bit more." I read that to mean the Federal Circuit disagrees with the possible infringement of this patent in the first place. They go into a long discussion about what Apple is claiming, point out that Apple's legal construction is convoluted and then say,
"We hold that the district court’s determination that 'each' modifies 'plurality of heuristic modules' is erroneous because it contravenes the plain terms of the claim. The word 'each' appears not before 'plurality of modules,' but inside the 'wherein' clause and before the phrase 'heuristic modules.'"
This feels like the Federal Circuit telling Judge Koh she needs to go back and re-examine her whole line of reasoning on this patent.
[1] http://www.cafc.uscourts.gov/images/stories/opinions-orders/...
Just to point out:
You shouldn't read into the federal circuit from this opinion. This was a 3 judge panel out of 12 judges (well, 11, there is one vacant seat).
They are likely trying to keep their docket sane by not having another appeal on this part of it.
I mainly say this because this is the same court that has brought you patentable DNA, etc.
If you wait a month, y'all will hate them again.
I mainly say this because this is the same court that has brought you patentable DNA, etc.
If you wait a month, y'all will hate them again.
Has anyone read the unified search patent enough to understand what's unique about it? For example, Windows NT4 shipped with unified search. It even had a plugin architecture so you could help it index new file formats. It was not enabled by default. You had to go turn it on.
Yes, they have. There is nothing unique about it.
But that's the case with most patent grants these days and usually is no bar to prosecution.
But that's the case with most patent grants these days and usually is no bar to prosecution.
"Apple must show that consumers buy the Galaxy Nexus because it is equipped with the apparatus claimed in the ’604 patent—not because it can search in general, and not even because it has unified search."
Wow, is this as big as I think it is?
Or is it just some technicality relating to the sales injunction that's not applicable to determination of infringement in general?
Wow, is this as big as I think it is?
Or is it just some technicality relating to the sales injunction that's not applicable to determination of infringement in general?
[deleted]
I think that this is it shouldn't have a PRELIMINARY injuction before the main trial has taken place. The harm is not sufficient to stop sales now although I don't think it prevents an injunction if the patent is determined infringed in the trial.
I think to get a preliminary injunction you need to show that:
1) you are likely to win the trial and get and injunction.
2) you are being irreparably damaged until the trial. (Financial damages can't put it right later.)
This judgement was mainly about (2) with an additional comment related to (1) on the claim construction.
It does not mean that you can infringe patents as long as that is not shown to be why people buy your products.
I think to get a preliminary injunction you need to show that:
1) you are likely to win the trial and get and injunction.
2) you are being irreparably damaged until the trial. (Financial damages can't put it right later.)
This judgement was mainly about (2) with an additional comment related to (1) on the claim construction.
It does not mean that you can infringe patents as long as that is not shown to be why people buy your products.
I found that a bit confusing as well. I wonder if the court was saying that a ban was inappropriate, and instead the remedy should have been something like a fine for every device sold that infringed (until such infringement was removed)?
A big point seems to be that people buy neither an iPhone nor a Galaxy Nexus specifically for their search abilities, regardless of how much Apple wanted to advertise Siri in court.
> A big point seems to be that people buy neither an iPhone nor a Galaxy Nexus specifically for their search abilities
Assume infringement of something, lets say a patented chemical in particular competitors dog food. If the court claims it is not a 'causal nexus' (people don't buy the dog food for the chemical), and that if preventing the competitor from selling the dogfood was not appropriate (no causal nexus) then I guess the remaining "relief" would be entirely monetary?
If the infringement continued after a finding, maybe it would become willful at some point meaning higher fines?
> , regardless of how much Apple wanted to advertise Siri in court.
Because Siri is Apple's answer to search on an iPhone, or at least thats's how I interpreted it.
iOS has had unified search prior to Siri. (iOS 3)
We hold that the district court abused its discretion in determining that Apple established a sufficient causal nexus. In that light, we do not address Samsung’s argument with respect to the sufficiency of Apple’s allegations of harm.
Basically, I think they're saying "The district court made a technical mistake. We're not saying anything about who won the case." I think this means it goes back to trial. Any JDs want to correct me?
Basically, I think they're saying "The district court made a technical mistake. We're not saying anything about who won the case." I think this means it goes back to trial. Any JDs want to correct me?
When they say "the district court abused its discretion in determining that Apple established a sufficient causal nexus" could they really be saying the district court didn't have the authority to make this determination?
Sounds more like they felt the court did have the authority, but did not make a ruling based enough on facts and established case law.
This seems somewhat relevant: https://en.wikipedia.org/wiki/Discretion#Abuse_of_discretion
This seems somewhat relevant: https://en.wikipedia.org/wiki/Discretion#Abuse_of_discretion
So this is the second humiliating reversal of a ban for Judge Lucy Koh in a matter of months. I wonder how much impact it has on your professional career as a judge when you keep making high profile decisions that have to be overturned / rescinded a few months later?
So a little good news: It seems there must still be a pocket of objectivity somewhere between the provincial foolishness of a jury and the largely political decisions made by the Supreme Court.
You can't stop the Android steam roller. It's Windows vs Mac circa 1987 all over again
Based on this prognostication, what do you expect to happen next?
Have you shorted appropriately?
Have you shorted appropriately?
This comes up all the time, and it's still extremely risky advice. Even if you're right, a margin call on your short position could bankrupt you before you win. You're gambling you know just how irrational the market is being.
As Keynes said "Markets can remain irrational longer than you can remain solvent."
I'm glad they called out judge Koh's abuses. She should be called out for the ones in the Apple vs Samsung trial as well (the other one).
Regardless of position on this subject, it seems like I am constantly reading about how verdict X was overturned in some appeals court or such. The effect on me is to feel less like US law is remotely sane and more whoever can come up with the latest psuedo-philosophical circle jerk angle and still stay financially solvent.
The first thing to understand is this is not an appeal involving the whole case. It's an appeal of the district court's decision to grant Apple a preliminary injunction ("the sales ban"). A preliminary injunction is a legal remedy where the defendant is enjoined (prevented) from engaging in some allegedly harmful conduct before the case is decided on the merits. A judge has the power to grant preliminary injunctions because in some cases, by the time a decision is reached the harm might have already been done. E.g. if you're complaining that some company is illegally dumping nuclear waste onto your property every week, you don't want the dumping to continue while the court decides whether it's legal. In that case, the judge has the discretion to grant you a preliminary injunction, which basically "freezes the status quo" pending the resolution of the case. Note a preliminary injunction will often involve some sort of bond requirement, requiring the plaintiff to post bond to compensate the defendant for any losses arising from the injunction in case the defendant wins.
The judge has discretion to grant a preliminary injunction, but is supposed to only do it when there would otherwise be "irreparable harm." This is what the appeal is about. The court said that the trial judge abused her discretion in granting the preliminary injunction because Apple had not proven irreparable harm. Apple claimed that they would lose market share if shipments were allowed to continue, and that was irreparable harm. What the court said was that unless Apple could prove that there was a "causal nexus" between Samsung infringing the patent and people buying Galaxy Nexus phones, there was no irreparable harm because of lost market share. In other words, Apple had to prove that people were buying Galaxy Nexus phones only because of the infringing patent. It wasn't sufficient to prove, for the purposes of evaluating irreparable harm, whether Samsung's infringement simply made the product more attractive than it would otherwise be.
Incidentally, the "abuse of discretion" language has a very specific meaning. It doesn't mean the judge didn't have the power to grant the injunction. Rather, it means the judge didn't grant the injunction on proper grounds. Generally, appeals courts do not review decisions wholesale ("de novo"). Instead, they give the trial judge a lot of latitude. The amount of latitude depends on the specific type of decision. Decisions that involve "judgment calls" about the sufficiency of evidence are given much more latitude than decisions that involve say an interpretation of statutory language. "Abuse of discretion" is a standard of reviewing a lower court decision that basically means the lower court decision will stand unless the appeals court decides that it was totally in left field. In this case, the appeals court said that granting the injunction was an abuse of discretion because the judge granted the injunction despite Apple's evidence being wholly insufficient to meet the legal requirements for granting the preliminary injunction. It wasn't just a difference in judgment where the appeals court thought the evidence was insufficient to establish irreparable harm but could see how the trial court thought it was sufficient. If that had been the case, the appeals court would have let the decision stand. Instead, the appeals court could see no way to justify the finding of irreparable harm.