Appsung - Petition For Rehearing en Banc

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2013-1129, -1146
UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT

APPLE INC., Plaintiff-Appellant, v. SAMSUNG ELECTRONICS CO., LTD., SAMSUNG ELECTRONICS AMERICA, INC., and SAMSUNG TELECOMMUNICATIONS AMERICA, LLC, Defendants-Appellees. Appeals from the United States District Court for the Northern District of California in case no. 11-CV-1846, Judge Lucy H. Koh. PETITION FOR INITIAL HEARING EN BANC MICHAEL A. JACOBS RACHEL KREVANS ERIK J. OLSON RICHARD S.J. HUNG GRANT L. KIM MORRISON & FOERSTER LLP 425 Market Street San Francisco, CA 94105 (415) 268-7000 WILLIAM F. LEE MARK C. FLEMING JOSEPH J. MUELLER LAUREN B. FLETCHER WILMER CUTLER PICKERING HALE AND DORR LLP 60 State Street Boston, MA 02109 (617) 526-6000 JONATHAN G. CEDARBAUM WILMER CUTLER PICKERING HALE AND DORR LLP 1875 Pennsylvania Avenue NW Washington, DC 20006 (202) 663-6000 January 16, 2013 Counsel for Plaintiff-Appellant Apple Inc.
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CERTIFICATE OF INTEREST Pursuant to Federal Circuit Rule 47.4, counsel of record for PlaintiffAppellant Apple Inc. certifies as follows: 1. The full name of every party represented by us is: Apple Inc. 2. The names of the real parties in interest represented by us are: Not applicable 3. All parent corporations and any publicly held companies that own 10
percent or more of the stock of the parties represented by us are: None. 4. The names of all law firms and the partners or associates that
appeared for the parties represented by us in the trial court, or are expected to appear in this Court, are: Morrison & Foerster LLP: Deok K.M. Ahn Jason R. Bartlett Charles S. Barquist Francis Chung-Hoi Ho Richard S.J. Hung Michael A. Jacobs Esther Kim Grant L. Kim Rachel Krevans Marc J. Pernick Harold J. McElhinny Andrew E. Monach Erik J. Olson Taryn Spelliscy Rawson Christopher Leonard Robinson Jennifer L. Taylor Alison M. Tucher Patrick J. Zhang Nathan Brian Sabri Ruchika Agrawal
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Wilmer Cutler Pickering Hale and Dorr LLP: David B. Bassett James C. Burling Jonathan G. Cedarbaum Robert D. Cultice Andrew J. Danford Michael A. Diener Christine E. Duh Mark D. Flanagan Mark C. Fleming Lauren B. Fletcher Richard Goldenberg Robert J. Gunther, Jr. Liv L. Herriot Michael R. Heyison Peter J. Kolovos Derek Lam Brian Larivee William F. Lee Andrew L. Liao Leah Litman Joseph J. Mueller Michael Saji Brian Seeve Mark D. Selwyn Ali H. Shah Victor F. Souto James L. Quarles III Timothy D. Syrett Robert Tannenbaum Louis W. Tompros Samuel Calvin Walden Rachel L. Weiner Emily R. Whelan Jeremy Winer
Taylor & Company Law Offices LLP: Joshua Ryan Benson Stephen M. Bundy Stephen E. Taylor
Cooley LLP: Benjamin George Damstedt Jesse L. Dyer Timothy S. Teter
Respectfully submitted, Dated: January 16, 2013 /s/ William F. Lee WILLIAM F. LEE Attorney for Apple Inc.
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TABLE OF CONTENTS Page CERTIFICATE OF INTEREST .................................................................................i TABLE OF AUTHORITIES ....................................................................................iv STATEMENT PURSUANT TO FEDERAL RULE OF APPELLATE PROCEDURE 35(b) AND FEDERAL CIRCUIT RULE 35(b)(1) ...........................................................................................................vi INTRODUCTION ..................................................................................................... 1 PROCEEDINGS BELOW ......................................................................................... 2 ARGUMENT ............................................................................................................. 4 I. II. Initial Hearing En Banc Is Warranted Because This Appeal Implicates The Correctness Of Prior Panel Decisions .................................... 5 This Case And Apple II Together Present An Ideal Vehicle For Resolution Of Exceptionally Important Questions Regarding Preliminary And Permanent Injunctive Relief In Patent Cases .................... 10
CONCLUSION ........................................................................................................ 13 CERTIFICATE OF SERVICE CERTIFICATE OF COMPLIANCE
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TABLE OF AUTHORITIES Page(s) CASES Abbott Laboratories v. Sandoz, Inc., 566 F.3d 1282 (Fed. Cir. 2009) ..................................................................... 11 Apple, Inc. v. Samsung Electronics Co., 678 F.3d 1314 (Fed. Cir. 2012) ....................................................................... 5 Apple Inc. v. Samsung Electronics Co., 695 F.3d 1370 (Fed. Cir. 2012) ................................................................... 1, 5 Barrell v. Renehan, 39 A.2d 330 (Vt. 1944) .................................................................................... 7 Campbell Printing-Press & Manufacturing Co. v. Manhattan Railway Co., 49 F. 930 (C.C.S.D.N.Y. 1892) ....................................................................... 7 Colliton v. Oxborough, 90 N.W. 793 (Minn. 1902) .............................................................................. 8 Doody v. Spurr, 51 N.E.2d 981 (Mass. 1943) ............................................................................ 7 eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388 (2006)...............................................................................6, 7, 10 Edwards Lifesciences AG v. CoreValve, Inc., 699 F.3d 1305 (Fed. Cir. 2012) ..................................................................... 12 Electric Car Co. of America v. Hartford & W.H.R. Co., 87 F. 733 (C.C.D. Conn. 1898) ....................................................................... 7 i4i Ltd. Pship v. Microsoft Corp., 598 F.3d 831 (Fed. Cir. 2010) ......................................................................... 8
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In re Bilski, 545 F.3d 943 (Fed. Cir. 2008) ....................................................................... 11 In re Seagate Technology, LLC, 497 F.3d 1360 (Fed. Cir. 2007) ..................................................................... 11 Martinez v. United States, 272 F.3d 1335 (Fed. Cir. 2001) ....................................................................... 4 Presidio Components, Inc. v. American Technical Ceramics Corp., ___ F.3d ___, 2012 WL 6602786 (Fed. Cir. 2012) .................................... 7, 8 Raney v. Federal Bureau of Prisons, 222 F.3d 927 (Fed. Cir. 2000) ......................................................................... 4 Robert Bosch LLC v. Pylon Manufacturing Corp., 659 F.3d 1142 (Fed. Cir. 2011) ....................................................................... 8 University of Texas v. Camenisch, 451 U.S. 390 (1981)....................................................................................... 10 Verizon Services Corp. v. Vonage Holdings Corp., 503 F.3d 1295 (Fed. Cir. 2007) ....................................................................... 8 Warren Mills v. New Orleans Seed Co., 4 So. 298 (Miss. 1888)..................................................................................... 8 Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7 (2008)........................................................................................... 10 STATUTES AND RULES 28 U.S.C. 1292 ...................................................................................................... 11 Fed. R. App. P. 35 ...................................................................................................... 3 OTHER AUTHORITIES Shaver, Illuminating Innovation: From Patent Racing to Patent War, 69 Wash. & Lee L. Rev. 1891(2012) .............................................................. 3 -v-
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STATEMENT PURSUANT TO FEDERAL RULE OF APPELLATE PROCEDURE 35(b) AND FEDERAL CIRCUIT RULE 35(b)(1) Based on my professional judgment, I believe that this appeal requires an answer to the following precedent-setting question of exceptional importance: Whether a plaintiff seeking a permanent injunction against a direct competitors ongoing infringement must demonstrate a causal nexus by showing that consumers buy the infringing product specifically because it practices the patented feature.
/s/ William F. Lee WILLIAM F. LEE Attorney for Apple Inc.
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Plaintiff-Appellant Apple Inc. respectfully petitions that this Court initially hear Appeal No. 13-1129 en banc in order to resolve the standard applicable to the grant of permanent injunctive relief in patent infringement cases.1 INTRODUCTION In Apple Inc. v. Samsung Electronics Co., 695 F.3d 1370 (Fed. Cir. 2012) (Apple II), a panel of this Court reversed a preliminary injunction due to lack of proof of a causal nexus, which this Court defined as proof that the patented features drove demand for the infringing products. Id. at 1375-1376. This appeal presents an opportunity for the Court to address the correct application, if any, of a causal nexus requirement in the permanent injunction context. That issue, however, involves the consideration and potential overruling of several conflicting precedents of this Court, including Apple II. Apple therefore respectfully submits that this case should be initially heard by the full Court sitting en banc. If the en banc Court also decides to rehear Apple II, Apple respectfully requests that the Court consider hearing the two cases together, so that the Court may consider the causal nexus issue in the contexts of both preliminary and permanent injunctions with the benefit of coordinated briefing and argument. The two cases would
This petition applies only to Appeal No. 13-1129. Although Appeal No. 131129 is presently consolidated with Appeal No. 13-1146, Apple has filed an unopposed motion to sever them. See ECF No. 10 (Jan. 11, 2013). The Court has not yet ruled on that motion. -1-
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present an ideal vehicle for eliminating the uncertainty regarding when a patentee can prevent a competitor from trespassing on its patented innovations. PROCEEDINGS BELOW After a jury found that Samsung willfully infringed six Apple patents and diluted Apples trade dress, Apple sought a permanent injunction with respect to Samsungs infringing products. The district court made numerous findings that seemingly counseled entry of a permanent injunction: Apple and Samsung continue to compete directly in the same market (Ex. 1 at 5); Samsung had an explicit strategy to increase its market share at Apples expense, which has succeeded (id.); Apple has continued to lose market share to Samsung (id.); and Apple suffered irreparable harm in the form of loss of downstream sales due to smartphone customers tendency to remain with the manufacturer they initially select (id. at 6). Nonetheless, the district court denied a permanent injunction. Its [f]irst and most important[] reason (id. at 21) rested on the proposition that, as a matter of law, Apple cannot obtain a permanent injunction without proof that consumers buy the infringing product specifically because it is equipped with the patented feature. Id. at 8 (first emphasis added). For example, with respect to Apples design patents, while Apple proved that design, as a general matter is important in consumer choice and Apples patents provided some, but not all, of the features
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that customers find attractive, the district court held that an injunction could not issue unless Apple proved that the patented features were the primary driver of consumer demand for the product. Id. In reaching its conclusion, the district court relied heavily on the causal nexus requirement as articulated in Apple II. That requirement, not previously imposed by this Court or the Supreme Court, is the subject of Apples petition for rehearing en banc in Apple II. Apple IIs causal nexus requirement has generated significant confusion and controversy already. See, e.g., Brocade Commcns Sys., Inc. v. A10 Networks, Inc., No. 5:10-cv-3428, Dkt. 830 at 1-2 (N.D. Cal. Jan. 10, 2013) (Some have suggested that these standards herald the death, or at least the wounding, of the permanent injunction in patent cases involving hardware or software products with hundreds or thousands of components. One standard in particular the causal nexus standard bears the brunt of this discussion.); Shaver, Illuminating Innovation: From Patent Racing to Patent War, 69 Wash. & Lee L. Rev. 1891, 1943 (2012) (Articulated in [Apple IIs] way, the Federal Circuits causal nexus standard seems extremely difficult to satisfy. This ruling may signal the end of the injunction in the smartphone patent war.). Apple accordingly petitions for initial hearing en banc so that the Court can secure ... uniformity of the courts decisions on a question of exceptional importance. Fed. R. App. P. 35(a).
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ARGUMENT This Court has granted or ordered initial en banc hearing when considering whether a prior decision of this Court should be overruled. See, e.g., Martinez v. United States, 272 F.3d 1335, 1335 (Fed. Cir. 2001) (sua sponte ordering hearing en banc on whether a precedent should be overruled); Raney v. Fed. Bureau of Prisons, 222 F.3d 927, 929 (Fed. Cir. 2000) (noting decision to hear case en banc where the outcome of this appeal turns on our precedent in two cases). While that standard is high, this case meets it because the causal nexus requirement, as the district court understood it, conflicts with other decisions of this Court and the Supreme Court, as more fully set out below. A panel of this Court reviewing the district courts denial of injunctive relief would be limited to considering whether Apple II was misapplied, applied only to preliminary injunctions, or could otherwise be distinguished in this case; it could not overrule that and other precedential decisions. Additionally, granting this petition would promote judicial efficiency in the event that the Court grants the petition for rehearing in Apple II, which concerns the causal nexus standard in the context of preliminary injunctions. Hearing this case and Apple II together would present a unique opportunity to consider the preliminary injunction and permanent injunction standards at the same time,
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thereby providing much-needed guidance to district courts regarding whether and how patentees may enforce their right to exclude a competitors infringing use. I. INITIAL HEARING EN BANC IS WARRANTED BECAUSE THIS APPEAL IMPLICATES THE CORRECTNESS OF PRIOR PANEL DECISIONS In Apple, Inc. v. Samsung Electronics Co., 678 F.3d 1314 (Fed. Cir. 2012) (Apple I), which like Apple II involved a preliminary injunction, this Court ruled that the district court was correct to require a showing of some causal nexus between Samsungs infringement and the alleged harm to Apple before granting a preliminary injunction. Id. at 1324 (emphasis added). The Court elaborated: If the patented feature does not drive the demand for the product, sales would be lost even if the offending feature were absent from the accused product. Id. In Apple II, this Court extended that requirement, stating that, in order to obtain a preliminary injunction, a patentee must show that an infringing feature drives consumer demand for the infringing device; in other words, consumers must buy the [infringing product] because it is equipped with the apparatus claimed in the patent. 695 F.3d at 1375-1376. While Apple believes that this permanent injunction case is distinguishable from the preliminary injunction situations addressed in Apple I and Apple II, the district court disagreed (Ex. 1 at 3 n.2), and Samsung will no doubt disagree as well. Apple will therefore argue that, to the extent Apple I and Apple II required that a patentee engaged in head-to-head competition with the infringer must show -5-
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that the patented feature drives consumer demand for the patented products as a prerequisite for a permanent injunction, those cases fail to follow Supreme Court precedent and have created serious inconsistencies with this Courts precedents, such thatif the Court does not believe those decisions to be distinguishable they should be overruled. A panel of this Court cannot take that latter step. Accordingly, initial hearing en banc is warranted. Apples contentions regarding the incorrectness of an expansive causal nexus requirement in the preliminary injunction context are set out in detail in its petition for rehearing en banc in Apple II. Those arguments apply with even greater force in the context of a permanent injunction, where a factfinder has already found infringement by a direct competitor on a complete recordhere, after a three-week jury trial. To require proof not only of irreparable harm due to the infringing acts, e.g., importation and sale of infringing products by a competitor that is depriving the patentee of market shareproof that the district court agreed existed herebut also proof that that consumers buy the infringing product specifically because it is equipped with the patented feature (Ex. 1 at 8 (first emphasis added)) represents a major departure from the long tradition of equity practice. eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391, 393 (2006).
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Unlike a damages claim based on a complex products entire market value, which has always required proof that the patented feature drives demand for the overall product (see Garretson v. Clark, 111 U.S. 120, 121 (1884)), an equitable claim for a permanent injunction has never turned solely upon proof that the patented apparatus drove consumer demand. See, e.g., Campbell PrintingPress & Mfg. Co. v. Manhattan Ry. Co., 49 F. 930, 932 (C.C.S.D.N.Y. 1892) (defendant cannot avoid permanent injunction by insist[ing] that it is a wholly valueless improvement or is of trifling value to the infringer); Elec. Car Co. of Am. v. Hartford & W.H.R. Co., 87 F. 733, 740 (C.C.D. Conn. 1898) (granting permanent injunction on the basis of a minor feature). As this Court recently recognized in another case in which the infringing products competed head-to-head with the patentees products, the long traditions of equity practice reveal that permanent injunctions were granted upon a finding of infringement in the vast majority of patent cases. Presidio Components, Inc. v. Am. Technical Ceramics Corp., ___ F.3d ___, 2012 WL 6602786, at *8 (Fed. Cir. 2012) (quoting eBay, 547 U.S. at 395 (Roberts, C.J., concurring)). At least in the context of a permanent injunction, when a direct competitor like Samsung has been found to have committed a repeated and continuous trespass, the axiomatic remedy for trespass on property rights is removal of the trespasser. Id. (citing 35 U.S.C. 154(a)(1)); see also, e.g., Barrell v. Renehan, 39 A.2d 330, 331 (Vt. 1944); Doody v. Spurr, 51
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N.E.2d 981, 984 (Mass. 1943); Colliton v. Oxborough, 90 N.W. 793, 794 (Minn. 1902); Warren Mills v. New Orleans Seed Co., 4 So. 298, 298 (Miss. 1888). Panels of this Court have accordingly issued decisions recognizing the appropriateness of injunctive relief without regard to whether customers bought the infringing product specifically because of the inclusion or exclusion of the patented featuresdecisions that necessarily conflict with Apple I and Apple II. Two
months after Apple II, another panel decided Presidio Components, a permanent injunction case that ruled that a district court abused its discretion in finding no irreparable harm where a patentee lost market share to a direct competitor, with no mentionlet alone a sustained examinationof whether customers bought infringing products because they practiced the patented feature. 2012 WL
6602786, at *8-10; see also Robert Bosch LLC v. Pylon Mfg. Corp., 659 F.3d 1142, 1152-1155 (Fed. Cir. 2011) (discussing the four factors identified in the many cases involving a practicing patentee seeking to permanently enjoin a competitor upon an adjudication of infringement, none of which included whether the patented feature drove consumer demand), pet. for rehg en banc granted on other grounds, 480 F. Appx 997 (Fed. Cir. Aug. 7, 2012); i4i Ltd. Pship v. Microsoft Corp., 598 F.3d 831, 861-863 (Fed. Cir. 2010) (affirming permanent injunction against competitor in software case with no discussion of whether customers bought Microsoft Word due to the patented XML editor); Verizon
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Servs. Corp. v. Vonage Holdings Corp., 503 F.3d 1295, 1311 (Fed. Cir. 2007) (affirming permanent injunction in an internet telephony case among competitors with no discussion of causal nexus). The district courts application of the causal nexus requirement in this case makes it all but impossible to obtain a permanent injunction in a case involving complex patented products or designs, even where, as here, the plaintiff has proven extensive, willful infringement by a competitor across numerous products and patents. Although individual features in complex products may be generally
important, they will almost never drive consumer demand by themselves, at least not provably. Consumers buy complex technological products for a whole host of reasons, often with no one reason determining the customers decision. Many patented features may contribute in a significant way to customer demand even though no one is a reason, by itself, why a customer makes the final purchase. The proper response to that situation is not to deny an injunction altogether, but to permit district courts to use the existing flexibility inherent in crafting and enforcing injunctions tailored to stopping the specific infringing conduct presented in the individual case. Instead, the district court here, following Apple II, made it essentially impossible for a patentee to halt a direct competitors deliberate and successful copying of the patentees innovative designs and features for use in competing products. That categorical rule, denying an injunction even where a
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patentee has shown irreparable harm due to the defendants sale of infringing products, cannot be squared with the principles of equity adopted by Congress. eBay, 547 U.S. at 393. The en banc Court is best positioned to resolve this division definitively and provide the necessary clarity, as only it could consider the option of overruling Apple I and Apple II. Accordingly, initial hearing en banc is warranted. II. THIS CASE AND APPLE II TOGETHER PRESENT AN IDEAL VEHICLE FOR RESOLUTION OF EXCEPTIONALLY IMPORTANT QUESTIONS REGARDING PRELIMINARY AND PERMANENT INJUNCTIVE RELIEF IN PATENT CASES Apple recognizes that the pendency of a petition for rehearing in Apple II might ordinarily counsel against granting a second petition raising a similar issue. But Apple II involves a preliminary injunction, which is an extraordinary remedy based on a judicial forecast of the outcome. Winter v. Natural Resources Def. Council, Inc., 555 U.S. 7, 22 (2008). This appeal, however, arises in the different context of a permanent injunction, which becomes possible only once the defendants infringement has been proven to a factfinders satisfaction. See, e.g., Univ. of Tex. v. Camenisch, 451 U.S. 390, 394 (1981) (noting significant procedural differences between preliminary and permanent injunctions). To the extent this Court maintains a causal nexus requirement of the type articulated in Apple II for the preliminary injunction context (though, respectfully, it should not), the Court might adopt a different approach as to permanent injunctions in cases
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involving competitors. Granting this petition and hearing this case and Apple II together would provide this Court an ideal vehicle to consider the doctrine fully in both contexts.2 This case merits initial en banc review regardless of whether the Court grants rehearing in Apple II. The issue presented in this appeal speaks to whether a direct competitor that infringes a patent by marketing a complex, multi-featured product can escape an injunction simply because consumers buy the product due to a multitude of reasons not confined to the patented feature. This Court has heard cases en banc that present significant questions of patent law, such as the proper interpretation of product-by-process claims, Abbott Labs. v. Sandoz, Inc., 566 F.3d 1282, 1291 (Fed. Cir. 2009), the proper standard for patent-eligible material, In re Bilski, 545 F.3d 943 (Fed. Cir. 2008), affd sub nom. Bilski v. Kappos, 130 S. Ct. 3218 (2010), and questions relating to willfulness, In re Seagate Tech., LLC, 497
Samsung will likely seek to defer this appeal until the Court hears any appeal from the ultimate judgment in this case. But there is no cause for delaying this Courts review of the standards for a permanent injunction. This Court plainly has jurisdiction over this appeal, see 28 U.S.C. 1292, and Apple is prepared to meet whatever briefing schedule the Court directs in both this case and Apple II. By contrast, the district court has yet to enter a final appealable merits judgment, which depends on the resolution of several outstanding post-verdict motions. The correctness and application of a causal nexus requirement in the permanent injunction context is an independent, squarely-presented legal issue that this Court mayand shouldresolve based on the jurys finding that Samsung infringes valid patents.
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F.3d 1360, 1367 (Fed. Cir. 2007). The availability of a permanent injunction in patent infringement cases between competitors is another question of exceptional importance in patent law; permanent injunctions should not be an area of patent law in which [this Courts] guidance is mixed or muddled. Edwards Lifesciences AG v. CoreValve, Inc., 699 F.3d 1305, 1316 (Fed. Cir. 2012) (Prost, J., concurring). The injunction standard defines a patentees rights as against a competitor and affects numerous strategic decisions in a patent case, including whether to file, what patents to assert, what discovery requests to make, what consumer survey questions to ask, what issues to put to a damages expert, what questions to ask at depositions, what patent claims to advance at trial, and whether and when to settle. Continued doubt as to whether and how the causal nexus requirement applies to permanent injunctions will result in unnecessary expenditure of substantial judicial and party resources through multiple proceedings at both the district court and appellate levels. Therefore, a decision defining the requirements of a permanent injunction in patent cases is of exceptional importance. Apple also respectfully suggests that the question presented takes on a particular salience in the context of this case, whichas this Court knowshas been hard-fought and resulted in a decisive verdict in Apples favor. Although the jury awarded Apple a significant damages verdict, the district court correctly found
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that Samsungs deliberate and wide-ranging infringement had harmed Apples standing in the marketplace in ways that money cannot repair. The denial of a permanent injunction allows Samsung to continue its attempts to attract Apples customers through deliberate copying, with a damages award being merely a cost of doing business. If that is indeed the law, then patent rights will be greatly diminished in value. CONCLUSION For the foregoing reasons, the petition for initial hearing en banc should be granted. Respectfully submitted, /s/ William F. Lee WILLIAM F. LEE MARK C. FLEMING JOSEPH J. MUELLER LAUREN B. FLETCHER WILMER CUTLER PICKERING HALE AND DORR LLP 60 State Street Boston, MA 02109 (617) 526-6000 JONATHAN G. CEDARBAUM WILMER CUTLER PICKERING HALE AND DORR LLP 1875 Pennsylvania Avenue NW Washington, DC 20006 (202) 663-6000 January 16, 2013 Counsel for Plaintiff-Appellant Apple Inc.
MICHAEL A. JACOBS RACHEL KREVANS ERIK J. OLSON RICHARD S.J. HUNG GRANT L. KIM MORRISON & FOERSTER LLP 425 Market Street San Francisco, CA 94105 (415) 268-7000
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CERTIFICATE OF SERVICE I hereby certify that I filed the foregoing Petition for Initial Hearing En Banc with the Clerk of the United States Court of Appeals for the Federal Circuit via the CM/ECF system and served a copy on counsel of record, this 16th day of January, 2013 by the CM/ECF system and by electronic mail to the service list below. Derek L. Shaffer Quinn Emanuel Urquhart & Sullivan, LLP 1299 Pennsylvania Avenue NW, Suite 825 Washington, DC 20004 202-538-8000 derekshaffer@quinnemanuel.com Kevin A. Smith Quinn Emanuel Urquhart & Sullivan LLP 50 California Street, 22nd Floor San Francisco, CA 94111 (415) 875-6600 kevinsmith@quinnemanuel.com Kathleen M. Sullivan William B. Adams Quinn Emanuel Urquhart & Sullivan, LLP 335 Madison Avenue, 22nd Floor New York, NY 10017 (212) 849-7000 kathleensullivan@quinnemanuel.com williamadams@quinnemanuel.com
Dated: January 16, 2013
/s/ William F. Lee William F. Lee Attorney for Plaintiff-Appellant Apple Inc.
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CERTIFICATE OF COMPLIANCE Counsel for Plaintiff-Appellant hereby certifies that: 1. The brief complies with the type-volume limitation of Federal Rule of
Appellate Procedure 40(b) because exclusive of the exempted portions it does not exceed 15 double-spaced pages; and 2. The brief complies with the typeface requirements of Federal Rule of
Appellate Procedure 32(a)(5) and the type-style requirements of Federal Rule of Appellate Procedure 32(a)(6) because it has been prepared using Microsoft Office Word 2010 in a proportionally spaced typeface: Times New Roman, font size 14.
Dated: January 16, 2013
/s/ William F. Lee William F. Lee Attorney for Plaintiff-Appellant Apple Inc.
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EXHIBIT 1
Case5:11-cv-01846-LHK Document2197 Filed12/17/1201/16/2013 23 Case: 13-1129 Document: 29-2 Page: 2 Filed: Page1 of
1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 Plaintiff Apple, Inc. (Apple) filed this action against Defendants Samsung Electronics 20 Co., Ltd., Samsung Electronics America, Inc., and Samsung Telecommunications America, LLC 21 (collectively Samsung) on April 15, 2011, alleging infringement of several Apple patents and 22 dilution of Apples trade dress. On August 21, 2012, a jury returned a verdict that 26 Samsung 23 products infringed Apples patents or diluted Apples trade dress. Apple now brings this motion 24 for a permanent injunction seeking to enjoin Samsung from infringing, contributing to the 25 infringement, or inducing the infringement of any of Apples U.S. Patent No. 7,469,381, U.S. 26 Patent No. 7,844,915, U.S. Patent No. 7,864,163, U.S. Design Patent No. 604,305, U.S. Design 27 Patent No. 593,087, and U.S. Design Patent No. 618,677, including by making, using, offering to 28 1
Case No.: 11-CV-01846-LHK ORDER DENYING MOTION FOR PERMANENT INJUNCTION
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION APPLE, INC., a California corporation, ) ) Plaintiff, ) v. ) ) SAMSUNG ELECTRONICS CO., LTD., A ) Korean corporation; SAMSUNG ) ELECTRONICS AMERICA, INC., a New York ) corporation; SAMSUNG ) TELECOMMUNICATIONS AMERICA, LLC, ) a Delaware limited liability company, ) ) Defendants. ) ) ) Case No.: 11-CV-01846-LHK ORDER DENYING MOTION FOR PERMANENT INJUNCTION
1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26
sell, selling within the United States, or importing into the United States any of the Infringing Products or any other product not more than colorably different from an Infringing Product as to a feature or design found to infringe. Proposed Order Granting Apples Motion for a Preliminary Injunction and Damages Enhancement, ECF No. 2133. Apple also seeks to enjoin Samsung from diluting Apples registered iPhone trade dress and Apples unregistered iPhone 3G trade dress, including by selling or offering to sell in the United States any of six products the jury found to dilute Apples trade dresses. 1 Id. After hearing oral argument on the matter and reviewing the briefing by the parties, the evidence offered in support of the briefing, and the relevant law, the Court DENIES Apples Motion for a Permanent Injunction. The Patent Act provides that in cases of patent infringement a court may grant injunctions in accordance with the principles of equity to prevent the violation of any right secured by patent, on such terms as the court deems reasonable. 35 U.S.C. 283. Though injunctions were once issued in patent cases as a matter of course, the Supreme Court ruled in 2006 that broad classifications and categorical rule[s] were inappropriate in analyzing whether to grant a permanent injunction. eBay v. MercExchange, L.L.C., 547 U.S. 388, 393 (2006). Instead, a patentee seeking a permanent injunction must make a four-part showing: (1) That it has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction. Id. at 391. In considering Apples motion, the Court will consider each of these four factors in turn, and will then consider whether, on balance, the principles of equity support the issuance of a permanent injunction in this case. A. Irreparable Harm Historically, once a plaintiff in a patent case succeeded on the merits or established a likelihood of success, irreparable harm in the absence of an injunction was presumed. As the
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In the same motion, Apple also requested an enhancement of $535 million to the jurys damages award under both the Patent Act and the Lanham act. Because this request is intertwined with the other damages issues in this case, the Court will address Apples enhancement request in a separate Order. 2
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Federal Circuit has recently made clear, however, there is no longer any presumption of irreparable harm, even if a patentee is able to prove that a patent is valid and infringed. Robert Bosch LLC v. Pylon Manufacturing Corp., 659 F.3d 1142, 1149 (Fed. Cir. 2011). While the presumption of irreparable harm no longer applies, the Federal Circuit noted that it does not follow that courts should entirely ignore the fundamental nature of patents as property rights granting the owner the right to exclude. Id. Thus, the patentees right to exclude must be considered by a district court in determining whether an injunction is an appropriate remedy, but does not alone satisfy the irreparable harm requirement. Further, a showing that the patentee has suffered harm is insufficient. Rather, to satisfy the irreparable harm factor in a patent infringement suit, a patentee must establish both of the following requirements: 1) that absent an injunction, it will suffer irreparable harm, and 2) that a sufficiently strong causal nexus relates the alleged harm to the alleged infringement. Apple, Inc. v. Samsung Electronics Co., Ltd., 695 F.3d 1370, 1374 (Fed. Cir. 2012) (Apple II). 2 This test requires a showing that consumers buy the infringing product because it is equipped with the apparatus claimed in the . . . patent, and not merely because it includes a feature of the type covered by the patent. Id. at 1376. This Court has already performed significant irreparable harm analysis in this case. Specifically, in considering Apples motion for a preliminary injunction, this Court found, and the Federal Circuit agreed, that Apple had not demonstrated irreparable harm from the likely infringement of the D677 or D087 patents. See ECF No. 452 at 27-38; Apple I, 678 F.3d at 132426. The Court considered Apples arguments that it had suffered irreparable harm in the form of erosion of design distinctiveness and irreversible loss of market share and loss of customers. The Court concluded that Apple had not explained how erosion of design distinctiveness actually caused any irreparable harm, and rejected Apples theory that infringement diminished the value of
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The Federal Circuits Apple II opinion addresses a preliminary injunction. However, the irreparable harm requirement applies to both preliminary and permanent injunctions, and there is nothing in the Apple II opinion suggesting that its discussion of irreparable harm should be limited to the preliminary injunction context. Indeed, Courts regularly cite cases from the two contexts interchangeably. See, e.g., Apple v. Samsung Electronics Co., 678 F.3d 1314, 1323 (Fed. Cir. 2012) (Apple I) (preliminary injunction opinion citing Voda v. Codis Corp., 536 F.3d 1311 (Fed. Cir. 2008) (permanent injunction opinion)). 3
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Apples brand, which could not be separated from its products. ECF No. 452 at 29-30. The Court further found that though there was some evidence of loss of market share, Apple had not established that Samsungs infringement of Apples design patents caused that loss. Id. at 33-34. The Court noted that the evidence regarding how consumers chose smartphones was ambiguous, and given that the D677 and D087 patents cover only part of the phone design, limited to the front face, even what evidence there was that design was important to choice did not create a strong link to infringement of these design patents. The Court also found, at the preliminary injunction stage, that there was no irreparable harm from infringement of the 381 patent. Specifically, the Court noted that Apple had presented no evidence of any causal relationship between the features covered by the 381 patent and any loss of market share, customers, or goodwill, and had not established that that feature was necessary to, or a core functionality of Samsungs products. Id. at 63. These decisions at the preliminary injunction stage are not necessarily determinative now, after all the evidence is in and the Court has the benefit of a more complete factual record. Apple has presented some additional arguments and new evidence in support of its irreparable harm argument. Further, there are two additional utility patents (the 915 and 163 patents) and one additional design patent (the D305 patent), in addition to a finding of trade dress dilution, on which Apple did not previously seek a preliminary injunction and upon which this Court has not previously ruled. The Courts earlier analysis does, however, provide a starting point for the present inquiry. The Court will thus analyze Apples claims of irreparable harm in light of its prior findings. The Court will first consider the harms Apple claims to have suffered, and will then consider whether Apple has demonstrated that Samsungs infringement caused those harms. Apples Alleged Harms Apple alleges that it has suffered three types of irreparable harm as a result of Samsungs patent infringement: (1) loss of market share; (2) loss of downstream and future sales; and (3) injury to Apples ecosystem. 3
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Apple has also alleged harm stemming from Samsungs dilution of its trade dress. This harm raises different issues, and is addressed separately below. 4
As an initial matter, the Court considers the relationship between the parties, which bears generally on the likelihood that Apple will suffer harm from Samsungs infringement. At the preliminary injunction phase, Apple argued, and this Court found, that Apple and Samsung are direct competitors, based largely on evidence that the two companies compete for first-time smartphone buyers. ECF No. 452 at 32 (citing testimony from Samsungs expert Michael Wagner). Apple has presented further evidence of this relationship, including Samsungs own documents revealing Samsungs view of Apple as its primary competitor. See PX60 (Samsung presentation describing the US market as a two horse race between Apple and Samsung); PX184 (Samsung business plan emphasizing competition with Apple). Samsung has presented no new evidence to refute that finding. Thus, the Court finds that Apple and Samsung continue to compete directly in the same market. This finding increases the likelihood of harm from continued infringement. See, e.g., Robert Bosch, 659 F.3d at 1153. Regarding market share, Apple introduced evidence at the preliminary injunction phase that it had already lost some market share to Samsung during the span of 2010, and the Court considered evidence from both parties experts regarding further lost customers and market share. ECF No. 452 at 32-33. The Court found that the evidence could support a finding of irreparable harm. Id. At trial and in the permanent injunction briefing, Apple presented additional evidence that Samsungs market share grew substantially from June of 2010 through the second quarter of 2012, Musika Decl. 30 & Exh. 4.1, and that Samsung had an explicit strategy to increase its market share at Apples expense. PX62.11-15. Samsung does not refute this evidence in its opposition. Thus, the cumulative evidence shows that, consistent with the Courts finding at the preliminary injunction phase, Apple has continued to lose market share to Samsung. As this Court explained at the preliminary injunction phase, loss of market share or the permanent loss of customers as a result of infringing conduct can support a finding of irreparable harm. See Robert Bosch, 659 F.3d at 1153-54; Polymer Techs. v. Bridwell, 103 F.3d 970, 976 (Fed. Cir. 1996). Regarding downstream sales, this Court found at the preliminary injunction stage that given network compatibility issues (Apple phones and Samsung phones use different operating systems) and brand loyalty, there were potentially long-term implications of an initial purchase, in the form 5
of lost future sales of both future phone models and tag-along products like apps, desktop computers, laptops, and iPods. ECF No. 452 at 32. The Court also found that such damages would be difficult to calculate, rendering them potentially irreparable. Id. Since then, Apple has submitted further evidence to bolster its claim that both Apple and Samsung rely on customers being locked in to one platform. See PX60.18 (internal Samsung document discussing Apples very sticky/loyal subscribers); Musika Decl. 24 (discussing testimony of Apples Vice President Phil Schiller); Musika Decl. 25-26 (discussing testimony of Samsungs Justin Denison and Corey Kerstetter); Musika Decl. 28 (discussing Apples internal study of iPhone owners). In its opposition, Samsung has made no attempt to refute this evidence that its conduct has cost Apple potential downstream sales. Thus, the evidence this Court found sufficient to justify a finding of irreparable harm at the preliminary injunction stage remains undisturbed, and has in fact been strengthened by the additional evidence. Accordingly, as at the preliminary injunction stage, the Court finds that Apple has suffered some irreparable harm in the form of loss of downstream sales. Finally, Apple has argued that it has suffered irreparable injury to its ecosystem. It is not clear how this alleged harm differs from the loss of downstream sales discussed above. Apple asserts harm from network effects and the fact that customer demand increases as the number of other uses on the platform increases. Mot. at 5. But how this will harm Apple in a way distinct from the loss of downstream sales (of future iPhones and of other related products), Apple does not say. Thus, the Court considers any harms to Apples so-called ecosystem to be included in the harm the Court has already found in loss of downstream sales. Changes to products Samsung argues that changes to Samsungs products preclude a finding of irreparable harm. Specifically, Samsung argues that since 23 of its 26 infringing products have already been discontinued and that the remaining three have been altered by design-arounds so as to no longer infringe, Apple cannot be irreparably harmed by Samsungs conduct going forward. But the law on this point is clear: a defendants voluntary cessation of illegal behavior does not moot a request for an injunction. See Allee v. Medrano, 416 U.S. 802, 810-11 (1974). The fact that Samsung may
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have stopped selling infringing products 4 for now says nothing about what Samsung may choose to do in the future. Absent an injunction, Samsung could begin again to sell infringing products, further exposing Apple to the harms identified above. Thus, Samsungs decision to cease selling its infringing phones does not alter the Courts irreparable harm analysis. Causal Nexus The Federal Circuit has been quite clear that a showing of harm is not enough; Apple must link any harm it suffers directly to Samsungs infringement. This Court and the Federal Circuit have analyzed this causal nexus issue on a patent-by-patent basis. See Apple I, 678 F.3d at 132333 (analyzing appropriateness of injunction for each of four patents separately). Apple has not analyzed its alleged harm on a patent-by-patent basis, but rather has argued for harm from each group of intellectual property rights: design patents, utility patents, and trade dress. Apple has also argued that the combined harm from the patents and trade dress combined justifies an injunction. However, Apple has identified no law supporting its position that an injunction could issue on a finding of harm caused by Samsung in the aggregate. Rather, injunctions are authorized by statute for specific acts of infringement and dilution. Moreover, the jury found that different products infringed or diluted different patents or trade dress rights. Thus, even if there was such a combined effect, it would not apply to all of the products Apple seeks to enjoin. Yet Apple has made no attempt to identify which products it believes would benefit from a hypothetical aggregate harm theory. Instead, consistent with the practice of this and other courts, including the Federal Circuit, the Court will consider whether Apple has established a causal nexus for each of its patents and trade dresses individually. First, Apple argues that Samsungs infringement of Apples design patents caused irreparable harm because Apples designs drive demand for the infringing products. Mot. at 7; Reply at 2. At the preliminary injunction stage, this Court found that Apple had not established a causal nexus between the D677 and D087 patents and the harms Apple had experienced. However, Apple now provides evidence, much of which was not presented at the preliminary
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The Court takes no position on whether or not Samsungs design-arounds infringe any of Apples patents. 7
injunction stage, that customers choose smartphones based on appearance and design. See Mot. at 7-8. Thus, the Courts finding that Apple had not established a causal nexus at that time does not determine the result here. However, Apples evidence does not establish that any of Apples three design patents covers a particular feature that actually drives consumer demand. Apple has presented significant evidence that design, as a general matter, is important in consumer choice. See PX185.11 (Samsung study finding exterior design to be an important factor in phone choice); Bartlett Decl. Exh. 4 at 395 (third-party survey identifying design/style as important factor). At the same time, Samsung has come forward with a fair amount of countervailing evidence, suggesting that design is considerably less important than Apple claims. See DX 592.023 (results of Apple internal survey revealing design/color as the reason for choice in a very small percentage of cases); Pierce Decl. Exh. 5 (results of Apple survey ranking design eighth on a list of important features and attributes for iPhone buyers); DX572.26 (Apples assessment of features important to smartphone buyers, not including design). Thus, the evidence remains mixed concerning the weight smartphone buyers place on the design of the phone. But even if design was clearly a driving factor, it would not establish the required nexus. The design of the phones includes elements of all three design patents, as well as a whole host of unprotectable, unpatented features. Apple makes no attempt to prove that any more specific element of the iPhones design, let alone one covered by one of Apples design patents, actually drives consumer demand. The Federal Circuit made clear in Apple II that customer demand for a general feature of the type covered by a patent was not sufficient; Apple must instead show that consumers buy the infringing product specifically because it is equipped with the patented feature. 695 F.3d at 1376. Instead, Apple argues that its patents cover the iPhones most prominent design elements, Reply at 3, and therefore, if design drives demand, so do the patents. Even if the Court accepted as true Apples contention that the patents cover the most central design features, it would not establish that any specific patented design is an important driver of consumer demand. The only evidence Apple provides that any particular designs are important to consumers take the form of a 8
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few quotations from Samsungs consumer surveys and one quotation from industry review praising various elements of both Apples and Samsungs phone designs. See Reply at 3. These quotations are insufficient for two reasons. First, though more specific than the general design allegations, they are still not specific enough to clearly identify actual patented designs. Instead, they refer to such isolated characteristics as glossiness, reinforced glass, black color, metal edges, and reflective screen. Id. Apple does not have a patent on, for example, glossiness, or on black color. Though the patented designs incorporate some of these features, see Order Regarding Design Patent Claim Construction, ECF No. 1425, at 9, the patent is for the entire design not for any isolated characteristic. Each of the consumer quotations on which Apple relies refers only to a single characteristic. None of the consumer quotations considers more than one characteristic or discusses the way the characteristics are combined into a complete, patentable design. Apple cannot establish a causal nexus by showing an individual consumers demand for glossiness, or for black color, as these qualities are not themselves patentable. Second, even if these quotations did specifically reference the precise designs covered by Apples patents, they do not begin to prove that those particular features drive consumer demand in any more than an anecdotal way. One consumer mentioning a feature in a survey says very little about what drives consumer demand generally, and one journalists description of features proves nothing beyond that individuals preferences. Thus, while Apple has presented evidence that design, as a general matter, is important to consumers more broadly, Apple simply has not established a sufficient causal nexus between infringement of its design patents and irreparable harm. Apple has also attempted to make a showing, which it failed to make at the preliminary injunction stage, that Samsungs infringement of Apples utility patents caused Apples harm. This Court previously found that Apple had not established that the 381 patent was necessary for the product to function, or a core technology of the product. ECF No. 452 at 64. Apple now attempts to prove that Samsungs infringement of Apples utility patents caused Apple harm with three types of evidence: (1) documents and testimony showing the importance of ease of use as a factor in phone choice; (2) evidence that Samsung deliberately copied the patented features; and (3) a conjoint survey performed by Apples expert, Dr. Hauser. Mot. at 9; Reply at 4-6. 9
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Apples evidence of the importance of ease of use suffers from the same problems this Court identified with Apples design patent nexus evidence. First, the showing is simply too general. Many factors go into making a product easy to use, but the features for which Apple is asserting patent protection are very specific. A consumer may want a phone that is easy to use, but this does not establish that a tap-to-zoom feature, for example, or any given type of gesture, is a driver of consumer demand. Thus, Apples evidence of a survey showing the importance of ease of use as a general matter, PX 146.6, does not establish that infringement of any of Apples patents caused any harm that Apple has experienced. To establish the required nexus, Apple must make a showing specific to each patented feature. See Apple II, 695 F.3d at 1376. This, Apple has not done. Second, to the extent that Apples evidence of consumer preference discusses more specific ease-of-use-related features, it is insufficient to establish anything other than a single consumers experience. For instance, Apple has offered a report from a consulting firm hired by Samsung identifying features that Apple customers like about their phones, including individual consumers observations that you can enlarge pictures and move them around and use [g]estures like a two finger pinch and flick. Mot. at 8, citing PX36. But these quotations do not identify features at a level of specificity sufficient to determine whether they are actually covered by Apples patents. Apple does not have a patent on enlarging pictures and moving them around, but rather on a specific way of enlarging pictures. Nor does Apple have a patent on the general concept of a twofinger pinch or flick. The Federal Circuit has been quite clear that demand driven by a feature does not establish a causal nexus unless it is more specifically driven by the apparatus claimed in the. . . patent. Apple II, 695 F.3d at 1376. Moreover, evidence of what Apple customers like about their phones does not establish that any consumers bought Samsung phones because of these same features. Further, the language on which Apple relies consists of quotations that Samsungs consultant gathered from individual iPhone users; the quotations do not make any broader claims about the market and the factors that influence consumer choice generally. Apples only evidence of the market more broadly is limited to the general category of ease of use, which, as explained above, is insufficient to establish a causal nexus under Apple II. Accordingly, as with the design 10
patents, the Court finds that Apples evidence that consumers value a general category of features related to Apples utility patents cannot, under the Federal Circuits guidance, establish the requisite causal nexus. Next, Apple attempts to prove a causal nexus by pointing to evidence that Samsung intentionally copied some of Apples patented features. At the preliminary injunction phase, this Court considered evidence that Samsung employees believed that Samsung needed the bounceback feature from the 381 patent to compete with Apple. This Court and the Federal Circuit found that such evidence was not sufficient to establish the required causal nexus. See Apple I, 678 F.3d at 1327-28. Evidence of copying, like the evidence of Samsung employees beliefs that this Court previously considered, also proves what Samsung thought would attract purchasers, not what actually attracted purchasers. Here, as at the preliminary injunction phase, Samsungs impressions of what might lure customers, while relevant, are not dispositive. Accordingly, though evidence that Samsung attempted to copy certain Apple features may offer some limited support for Apples theory, it does not establish that those features actually drove consumer demand. Finally, Apple has presented evidence from a choice-based conjoint survey conducted by Apples expert Dr. John Hauser. The survey purports to establish the prices that Samsung consumers would pay for particular patented features, including the 915 patent alone, and all three utility patents together. See PX30. Samsung disputes the validity of the study based on methodology. Oppn at 13. Even if the survey is taken at face value, it does not establish a causal nexus under the standard articulated by the Federal Circuit in Apple II. The parties have submitted competing declarations concerning the applicability of Dr. Hausers study to the question at hand. See Wind. Decl. in support of Samsungs opposition; Sukumar Decl. in support of Samsungs opposition; Hauser Decl. in support of Apples reply. The Court agrees with Samsung that evidence of the price premium over the base price Samsung consumers are willing to pay for the patented features, PX30, is not the same as evidence that consumers will buy a Samsung phone instead of an Apple phone because it contains that feature. See Sukumar Decl. at 4 (distinguishing between willingness to pay for a feature and consumer demand for a complete product). Apples only 11
response to this argument is to point to Dr. Hausers assertion that demand for a product is often defined as consumers willingness to pay for that product, and thus the concepts of willingness to pay and demand are interchangeable. Hauser Reply Decl. at 8. However, the survey does not measure willingness to pay for products; it measures willingness to pay for features within a particular product amongst consumers who have already purchased the particular product in this case, a Samsung phone. It does not address the relationship between demand for a feature and demand for a complex product incorporating that feature and many other features. To establish a causal nexus, Apple would need to show not just that there is demand for the patented features, but that the patented features are important drivers of consumer demand for the infringing products. Apples survey evidence does not establish that any patented feature drives consumer demand for the entire product. In sum, to establish irreparable harm, Apple must show that the infringing feature drives consumer demand for the accused product. Apple II, 695 F.3d at 1375. Apple did not establish at the preliminary injunction stage that the 381 patent was central enough to Samsungs products to drive sales, and has not established that fact here either. Nor has Apple established that either the 915 or the 163 patents actually drive sales of any Samsung products. Neither statements about broad categories, nor evidence of copying, nor the conjoint survey provides sufficiently strong evidence of causation. Without a causal nexus, this Court cannot conclude that the irreparable harm supports entry of an injunction. See Apple II, 695 F.3d at 1377. Trade Dress Dilution Apple argues that once trade dress dilution has been established, no additional showing of harm need be made for the Court to issue an injunction for the six Samsung products the jury found to dilute Apples trade dress. Apple argues that the dilution itself the lessening of the capacity of the trade dress to identify Apples brand is the harm, as Congress acknowledged in drafting the dilution statute.5 The Federal Trademark Dilution Act (FTDA) 6 provides, in relevant part, that a trademark owner who establishes dilution: This argument is distinct from Apples argument at the preliminary injunction stage, which this Court rejected, that the erosion of design distinctiveness could constitute irreparable harm suffered in connection with design patent infringement. There, Apple had no authority for its argument that 12
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shall be entitled to an injunction against another person who, at any time after the owner's mark has become famous, commences use of a mark or trade name in commerce that is likely to cause dilution by blurring or dilution by tarnishment of the famous mark, regardless of the presence or absence of actual or likely confusion, of competition, or of actual economic injury. 15 U.S.C. 1125(c)(1). Apple argues that the choice of the word shall, along with the fact that the injunction shall issue regardless of the presence or absence of . . . actual economic injury demonstrates Congresss intention that injunctions issue where dilution is found, without a further showing of harm. Samsung argues that Apple must still show irreparable harm that would occur if Samsung continued to use the diluting designs, and that Apple cannot possibly make this showing because Apple no longer makes or sells the phones that embody the protected trade dresses. In support of its argument that Apple must make a specific showing of harm, Samsung points to language in the FTDA that a dilution injunction issue subject to the principles of equity, 15 U.S.C. 1125(c)(1), and to three out-of-district cases applying the four eBay factors to trademark infringement cases. But the trademark infringement statute, unlike the dilution statute, does not contain the mandatory shall language, and says nothing about an injunction issuing without a showing of harm. 15 U.S.C. 1116(a). Thus, cases applying the trademark infringement statute do not bear on the proper analysis of the dilution statute. Though the Court is aware of no cases specifically discussing the irreparable harm requirement in the trade dress dilution context, the Court agrees with Apple that the language of the FTDA makes clear that Congress contemplated the issuance of an injunction upon a showing of dilution, without an additional showing of irreparable harm. The fact that the statute specifically states that no economic harm is necessary defeats Samsungs claim that Apple must make some additional showing of harm, beyond the harm of the dilution itself, in order to be entitled to an injunction. Since the statute contemplates both that an injunction issue subject to the principles of equity and that an injunction issue without a showing of economic harm, the Court cannot the erosion of distinctiveness was a cognizable harm for a patentee. Because the FTDA explicitly addresses the requirements for an injunction, Apples present argument is quite different, and draws on different authority and reasoning. 6 The FTDA applies to trade dress as well as trademark. See Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763 (1992). 13
conclude that, even after eBay, equity requires an additional showing of harm for an injunction to issue. eBay was not interpreting the FTDA; it dealt with the Patent Act, which says that courts may grant injunctions, and says nothing to authorize relief in the absence of economic harm. 35 U.S.C. 283. Thus, even if eBays message to consider the principles of equity in granting injunctions may apply beyond the Patent Act, it does not override the specific language of the FTDA authorizing injunctions even without a showing of economic harm. Instead, Courts have treated dilution itself as the harm. See, e.g., Moseley v. V Secret Catalogue, Inc., 537 U.S. 418, 433 (2003) (the fact that actual dilution must be proved does not mean that the consequences of dilution, such as an actual loss of sales or profits, must also be proved.). Further, other parts of the FTDA also appear to envision an injunction as the primary remedy upon a finding of dilution. In particular, the statutory factors for determining whether a mark is famous include the degree of recognition of the mark in the trading areas and channels of trade used by the marks owner and the person against whom the injunction is sought. 15 U.S.C. 1125 (emphasis added). This language confirms that Congress envisioned a dilution action, unlike a patent or trademark infringement action, to be an action for an injunction, such that a finding of dilution would normally result in an injunction. Here, the jury found that Apples registered iPhone and unregistered iPhone 3G trade dresses were diluted by several Samsung products. Accordingly, Apple has shown the necessary harm. The fact that Apple no longer sells products embodying these particular trade dresses may, as Samsung points out, make it difficult for Apple to show continuing economic harm, but as such harm is not necessary for an injunction to issue, Apples discontinuation of those products is of no moment. The only case that either of the parties or the Court has found discussing dilution for a product no longer on the market found that harm could continue even though the Plaintiff had ceased to make or sell products using the protected design. See Ferrari S.p.A. Esercizio Fabbriche Automobili e Corse v. McBurnie, No. 86-1812, 1989 U.S. Dist. LEXIS 13442 (S.D. Cal. May 26, 1989) (issuing an injunction on a finding of dilution of dress, though the car embodying that trade dress had been discontinued). Thus, Apples cessation of use of these trade dresses does not prevent the Court from considering injunctive relief. 14
Regarding causal nexus for the trade dress claim, the jury found not just that Apples trade dresses had been diluted, but that it was the Samsung entities that diluted Apples trade dress. See Amended Jury Verdict, ECF No. 1931, at 11-12. This finding satisfies the requirement that the defendants conduct cause the harm. Accordingly, Apple has established irreparable harm with regard to its trade dress dilution claims. However, Samsung has represented, and Apple has not disputed, that none of the Samsung products found to dilute trade dress are still on the market in any form. See Oppn at 13-14; Decl. of Hee-chan Choi at 2-9; Decl. of Corey Kerstetter at 2-13. The Court is aware of no cases discussing the propriety of an injunction under the FTDA where there is no allegation of continuing dilution. The cases in which the Ninth Circuit has upheld the issuance of an injunction for trademark dilution under federal law have involved ongoing diluting conduct. See, e.g., Perfumebay.com Inc. v. eBay, Inc., 506 F.3d 1165, 1177 (9th Cir. 2007). The parties have cited, and the Court is aware of, no case issuing a permanent injunction under the FTDA for products that are no longer available. Further, the Ninth Circuit frequently identifies the appropriate test as whether (1) its mark is famous; (2) the defendant is making commercial use of the mark in commerce; (3) the defendant's use began after the plaintiff's mark became famous, Avery Dennison Corp. v. Sumpton, 189 F.3d 868, 874 (9th Cir. 1999), and whether there has been a showing of actual dilution, Moseley v. v. Secret Catalogue, Inc., 537 U.S. 418, 43334 (2003); see also Nissan Motor Co. v. Nissan Computer Corp., 378 F.3d 1002, 1010 (9th Cir. 2004); Perfumebay.com, 506 F.3d at 1180. This statement that an injunction is appropriate when the defendant is making commercial use confirms the Ninth Circuits interpretation that the injunction remedy is intended to allow courts to put a stop to ongoing diluting behavior. Here, there is no ongoing diluting behavior to enjoin, and Apple cannot credibly claim to suffer any significant hardship in the absence of a trade dress injunction. The parties have cited, and the Court is aware of, no cases applying the eBay factors to trade dress or trademark dilution injunctions. However, Apple appears to believe that, though there is no harm requirement for a trade dress injunction, the other three eBay factors inadequacy of 15
money damages, balance of the hardships, and public interest still bear on the appropriateness of an injunction in this context. See Reply at 6. The law is clear that trade dress dilution injunctions issue subject to the principles of equity. 15 U.S.C. 1125(c)(1). Moreover, the Supreme Courts ruling in eBay held that patent cases are subject to the same four-part injunction analysis as other civil cases. This ruling would indicate that the same four-part analysis would apply to other intellectual property cases, such as those involving trade dress dilution. Accordingly, the Court will consider each of the three remaining eBay factors in turn. B. Inadequacy of Money Damages Apple has argued that money cannot compensate Apple for the harm it has suffered and will continue to suffer. Mot. at 9-10. Specifically, Apple argues that its lost downstream sales cannot be calculated to a reasonable certainty, and thus cannot be compensated with a monetary award. Difficulty in estimating monetary damages is evidence that remedies at law are inadequate. Broadcom Corp. v. Qualcomm Inc., 543 F.3d 683, 703-04 (Fed. Cir. 2008). As noted above, the Court agrees that Apple has likely suffered, and will continue to suffer, the loss of some downstream sales. The Federal Circuit has confirmed that the loss of customers and the loss of future downstream purchases are difficult to quantify, [and] these considerations support a finding that monetary damages would be insufficient to compensate Apple. Apple I, 678 F.3d at 1337. Samsung argues that the fact that Apple sought and was awarded significant damages demonstrates that damages can indeed compensate Apple. However, Apple has alleged multiple forms of harm. The fact that the jury was able to put a number on the harm Apple has suffered in terms of sales already lost directly to Samsung does not necessarily mean that those damages captured the full extent of Apples harm. Indeed, if this were the case, no Court would ever award both damages and an injunction for the same infringement, but Courts do so routinely. See, e.g., i4i Limited Partnership v. Microsoft Corp., 598 F.3d 831 (Fed. Cir. 2010). Thus, Apples evidence of lost downstream sales does provide some evidence that Apple may not be fully compensated by the damages award.
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However, Apples licensing activity suggests that Apple does not believe that these patents are priceless, such that there can be no fair price set for Samsungs practice of the claimed inventions or designs. Both parties discuss the evidence of Apples previous licenses and offers for these and other patents. Apple claims that it would not willingly license the infringed patents and designs for use in iPhone knockoffs, Mot. At 10. Apple attempts to draw a distinction between the current injunction request and the licenses to which Apple has agreed in the past. But Apples past licensing behavior does not demonstrate that it treats either these specific patents, or Samsung as a licensing partner, as somehow off limits. Specifically, Apple offered Samsung a license to some of Apples patents. See DX 586 (Apple presentation describing license offer to Samsung). Apple has also licensed the precise utility patents at issue here, in agreements with Nokia (381 patent), IBM (915 patent; 163 patent), and HTC (381 patent; 915 patent; 163 patent). See Pierce Decl., Ex. 12-1, 12-2; Beecher Decl., ECF No. 2194, at Exh. 1. Further, when asked if Apple ever licenses its unique user experience IP, Apples top licensing executive, Boris Teksler, said, Certainly over time we have. Tr. at 1955:23-1956:1, 1957:5. The fact that Apple is now expressing an unwillingness to license these properties does not change the fact that Apple has, in the past, felt that money was a fair trade for the right to practice its patents, and that Apple has in the past been willing to extend license offers to Samsung. Moreover, although trade dress is not generally a form of intellectual property that is licensed to competitors, Mr. Teksler did testify that the unique user experience IP that Apple has previously licensed includes trade dress, along with design patents, and some utility patents. Id. at 1956:9-12. Thus, there is some evidence that Apple has not always insisted on exclusive use of its trade dress, but rather has found money to be an acceptable form of compensation. In sum, the license evidence cuts in Samsungs favor. Apple does not seek to retain exclusive use of its invention, as did the plaintiff in i4i. 598 F.3d at 862. Rather, Apple does appear willing, at times, to use its patents, including several of the patents at issue here, and even its trade dress, as tools in forging relationships and generating income. Further, Apple has agreed to licenses with companies with whom it competes, including Samsung. Though after eBay this
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fact alone could not justify an injunction, see eBay, 547 U.S. at 393, it certainly weighs in Samsungs favor. Finally, courts have considered the defendants ability to pay in considering the adequacy of damages. See, e.g., Robert Bosch, 659 F.3d at 1155. Here, there is no suggestion that Samsung will have any difficulty paying the damages it owes. This fact serves to further reinforce the fact that Apple will be substantially compensated for its injuries without an injunction. In sum, the difficulty in calculating the cost of lost downstream sales does suggest that money damages may not provide a full compensation for every element of Apples loss, but Apples licensing activity makes clear that these patents and trade dresses are not priceless, and there is no suggestion that Samsung will be unable to pay the monetary judgment against it. Accordingly, the Court finds that this factor favors Samsung. C. Balance of Hardships This factor assesses the relative effect of granting or denying an injunction on the parties. i4i, 598 F.3d 831, 862. Here, neither party would be greatly harmed by either outcome. Apple has not identified any hardship it would face in the absence of an injunction. Apples only argument that the balance of hardships weighs in its favor seems to be its claim that Samsungs conduct was willful. 7 See Mot. at 10-11. An injunction, however, may not be used as a punishment. See Hynix Semiconductor Inc. v. Rambus Inc., 609 F. Supp. 2d 951, 969 (N.D. Cal. 2009) ([A]n injunction may deter future harm, but it may not punish.). A finding of willfulness would not change the effect the injunction will have on Apple. Apples argument that willfulness tips the balance of hardships in Apples favor thus appears to depend on an impermissible use of an injunction as punishment. Apple has not identified any other hardship. If an injunction were granted, Samsung would not be able to sell any of the twenty-six products found to infringe Apples patents. But as Samsung has made clear in its briefing, it no longer sells 23 of these products in any form, Oppn at 13-14, and has already begun to implement
7
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Apples briefs argue that the balance of equities tips in its favor not the balance of hardships. Though historically the factor has been denominated using both terms, recent Supreme Court and Federal Circuit cases have consistently referred to the balance of hardships. See eBay, 547 U.S. at 391; i4i, 598 F.3d at 862; Robert Bosch, 659 F.3d at 1156; 18
design-arounds for the three products it does still make. 8 Id. What is more, Samsung has entirely stopped selling the six trade dress diluting products. Having made this argument in the hopes of establishing that Apple cannot be harmed, Samsung cannot now turn around and claim that Samsung will be burdened by an injunction that prevents sale of these same products. Samsung has further argued that an injunction would disrupt[] its relationships with carriers who may be selling pre-existing stock and with consumers who may still be using the accused products. Id. at 18. But Samsung has not explained how an injunction would cause the asserted disruptions, or what hardship they would actually present for Samsung, as opposed to hardship for the carriers and consumers. Further, carriers who sold the infringing products have assumed the risk of this type of disruption. Courts have found 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. Telebrands Direct Response Corp. v. Ocation Commcns, Inc., 802 F. Supp. 1169, 1179 (D.N.J. 1992). Harm to consumers is more appropriately considered under the fourth factor, addressed below. As neither party will suffer any particularly great hardship based on either outcome, the Court finds that this factor is neutral. D. Public Interest Courts have recognized that the touchstone of the public interest factor is whether an injunction, both in scope and effect, strikes a workable balance between protecting the patentees rights and protecting the public from the injunctions adverse effects. i4i, 598 F.3d at 863. Courts consider the harm that an injunction might cause to consumers who can no longer buy preferred products because their sales have been enjoined, and the cost to the judiciary as well as to the parties of administering an injunction. Motorola, 2012 WL 2376664 at *20.
The Federal Circuits recent decision in Edwards Lifesciences v. Corevale, 699 F.3d 1305 (Fed. Cir. 2012), does not render this fact any less relevant. The court in Edwards did reverse the denial of an injunction that had been granted in part in reliance on the defendants statement that it was going to stop manufacturing in the United States, depriving the injunction of its practical effect, and thus largely stripping the balance of hardships and public interest factors of their power. Slip Op. at 18-19. The Federal Circuit reversed the denial, noting that the defendant had not, in fact, ceased manufacture in the United States, making that basis for denying an injunction erroneous. Id. at 19. It did not suggest that district courts should not consider the practical effect, or lack thereof, of an injunction. 19
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9
Here, the injunction Apple has sought is extremely broad, and would prevent the sale of 26 specific products, as well as other potential future products incorporating the protected features. Relief of this breadth is significantly less likely to be in the public interest than a very narrowly tailored injunction. See i4i, 598 F.3d at 863 (finding that a very narrow injunction has less of an impact on the public than would a broad injunction). Apple has articulated just one argument that an injunction would be in the public interest: the publics interest in preserving the rights of patentholders. Mot. At 11. As this Court found at the preliminary injunction stage, the public interest does favor the enforcement of patent rights to promote the encouragement of investment-based risk. See Sanofi-Synthelabo v. Apotex, Inc., 470 F.3d 1368, 1383 (Fed. Cir. 1985). On the other hand, Samsung has identified some potential consequences of the requested injunction that would not be in the public interest. Specifically, Samsung has argued that an injunction would be disruptive to suppliers, retailers, carriers, and customers. Oppn at 19. The Federal Circuit has agreed that disruption to carriers and other third parties can weigh against an injunction. See Broadcom Corp. v. Qualcomm Inc., 543 F.3d 683, 704 (Fed. Cir. 2008). However, if Samsung is to be believed that it is no longer manufacturing or selling any infringing phones, then this disruption will be limited to existing stock, and would surely be brief. 9 Further, thirdparty retailers should not be protected from the disruption when they have been benefitting from Samsungs infringement. As explained above, Courts have recognized 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. Telebrands, 802 F. Supp. at 1179. Samsung has also argued that an injunction would cause great harm to the public because it would reduce competition in the phone market, leaving customers beholden to Apple, who cannot meet the demand for phones. Samsung overstates the danger. Consumers will have substantial choice of products, even if an injunction were to issue. Apple and Samsung, despite being direct competitors, are not the only suppliers of mobile phones in the market, nor are Samsungs
28
At the December 6, 2012 hearing, Samsung represented that there were approximately 77,000 infringing units currently with retailers that could be subject to Apples requested injunction. 20
infringing phones the only phones Samsung offers. Even if Samsung were able to establish that Apple will not be able to supply as many iPhones as the market would like to buy and the news reports of such rumors Samsung cites, see oppn at 19, are clearly insufficient to establish any such thing it does not follow that an injunction removing three of Samsungs products from the market would leave customers with no other smartphone options. However, the injunction would make certain phones unavailable to consumers. It would not be equitable to deprive consumers of Samsungs infringing phones when, as explained above, only limited features of the phones have been found to infringe any of Apples intellectual property. Though the phones do contain infringing features, they contain a far greater number of non-infringing features to which consumers would no longer have access if this Court were to issue an injunction. The public interest does not support removing phones from the market when the infringing components constitute such limited parts of complex, multi-featured products. In addition, Samsung argues that an injunction would create an administrative burden on the Court, as it would require the Courts continuing supervision to enforce. This is likely true, though on its own, it does not carry significant weight. Finally, regarding trade dress, the Court finds that, in the absence of case law authorizing a trade dress dilution injunction where there are no diluting products still on the market, an injunction cannot be in the public interest. The potential for future disruption to consumers would be significantly greater if this Court were to issue an injunction, and such disruption cannot be justified in the absence of clear authority. In sum, while the public interest does favor the protection of patent rights, it would not be in the public interest to deprive consumers of phones that infringe limited non-core features, or to risk disruption to consumers without clear legal authority. E. Summary Weighing all of the factors, the Court concludes that the principles of equity do not support the issuance of an injunction here. First and most importantly, Apple has not been able to link the harms it has suffered to Samsungs infringement of any of Apples six utility and design patents that the jury found infringed by Samsung products in this case. The fact that Apple may have lost 21
customers and downstream sales to Samsung is not enough to justify an injunction. Apple must have lost these sales because Samsung infringed Apples patents. Apple has simply not been able to make this showing. Though this is a case where the plaintiff practices its invention and is a direct market competitor, Edwards Lifesciences, 699 F.3d at 1315, it is not a case where the patented inventions are central to the infringing product. Without the required causal nexus, the parties status as direct competitors simply does not justify an injunction. Further, the Court has found that neither the inadequacy of money damages nor the public interest favors an injunction here, for either patent infringement or trade dress dilution. Regarding trade dress dilution specifically, as explained above, the case for an injunction is especially weak, because there are no diluting products still available, even without an injunction. Finally, this Court has previously noted the relevance to the present situation of Justice Kennedys observation in eBay: When the patented invention is but a small component of the product the companies seek to produce and the threat of an injunction is employed simply for undue leverage in negotiations, legal damages may well be sufficient to compensate for the infringement and an injunction may not serve the public interest. 547 U.S. at 396-97. The phones at issue in this case contain a broad range of features, only a small fraction of which are covered by Apples patents. Though Apple does have some interest in retaining certain features as exclusive to Apple, it does not follow that entire products must be forever banned from the market because they incorporate, among their myriad features, a few narrow protected functions. Especially given the lack of causal nexus, the fact that none of the patented features is core to the functionality of the accused products makes an injunction particularly inappropriate here. This case is simply not comparable to i4i or to Edwards, the Federal Circuits most recent case discussing permanent injunctions in the patent context. In i4i, the plaintiff was a very small company whose business depended on its patented product, and the defendant was a large company of whose business, the infringing product was but a small part. Thus, the defendants infringing product significantly change[d] the relevant market. . . forcing i4i to change its business strategy. 598 F.3d at 862. Without an injunction, there was simply no way for the plaintiff to continue to 22
compete. Here, Samsung may have cut into Apples customer base somewhat, but there is no suggestion that Samsung will wipe out Apples customer base, or force Apple out of the business of making smartphones. The present case involves lost sales not a lost ability to be a viable market participant. Edwards involved a patent that was much more central to the infringing product than the patents at issue here; there was no doubt that the patented technology in that case was a central force driving sales of the infringing product. 699 F.3d at 1308 (describing a prosthetic heart valve implanted by use of a collapsible stent, and a patent for the necessary collapsible stent). If the patents at issue here were similarly essential to the core of Samsungs products, the Court might see things differently. In sum, to the limited extent that Apple has been able to show that any of its harms were caused by Samsungs illegal conduct (in this case, only trade dress dilution), Apple has not established that the equities support an injunction. Accordingly, Apples motion for a permanent injunction is DENIED. IT IS SO ORDERED. Dated: December 17, 2012 _________________________________ LUCY H. KOH United States District Judge
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Appsung - Petition For Rehearing en Banc

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Case: 13-1129

UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT

Cooley LLP: Benjamin George Damstedt Jesse L. Dyer Timothy S. Teter

CONCLUSION ........................................................................................................ 13 CERTIFICATE OF SERVICE CERTIFICATE OF COMPLIANCE

/s/ William F. Lee WILLIAM F. LEE Attorney for Apple Inc.

Dated: January 16, 2013

Dated: January 16, 2013

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Case No.: 11-CV-01846-LHK ORDER DENYING MOTION FOR PERMANENT INJUNCTION

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