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Samsung files against CAFC review of decision reversing Galaxy Nexus injunction

post #1 of 23
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Late last week, Samsung filed a document with the U.S. Court of Appeals for the Federal Circuit outlining why Apple should not be allowed a full panel review of a previous court denial to block sales of the Galaxy Nexus.

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The response to Apple's request for a rehearing en banc, or a review involving all nine CAFC judges, pertains to the iPhone maker's bid to halt sales of Samsung's Galaxy Nexus smartphone that < ahref="http://appleinsider.com/articles/12/10/11/appeals-court-reverses-ban-on-samsung-galaxy-nexus-in-apple-patent-dispute">was denied by a three-member panel in October, reports Reuters. Apple first won an injunction against the Samsung handset in June 2012.

In its most recent filing, Samsung argues against an en banc, saying a rehearing is unnecessary due to a lack on Apple's part to prove a causal-nexus between the alleged infingement of a unified search patent and harm to iPhone sales. The company goes further, saying Apple failed to prove it suffered irreparable harm to the iPhone's market share during the period in which the Galaxy Nexus was on sale.

"Here, even if every Galaxy Nexus sale would otherwise have been an iPhone sale (which is highly doubtful given that a host of manufacturers sold 315 models of competing Android phones), Apple could have gained, at most, only an additional 0.5% of the U.S. smartphone market in the first quarter of 2012," the filing read. "Potential loss of a fraction of 0.5% of market share is 'insubstantial.'"

Samsung concluded an en banc rehearing is unwarranted:

The full Court should not revisit the panel?s straightforward and correct claim construction, and Apple offers no precedent for

en banc review of a claim construction so specific to a particular patent. Because Apple conceded below that it cannot prevail on infringement if ?every single module in the device has to use a different algorithm,? as the panel?s construction requires, Apple cannot establish a likelihood of success on the merits, and further review of the decision vacating the preliminary injunction is unwarranted.
In either case, a Galaxy Nexus ban would be a minor victory for Apple as Samsung has gone on to release a number of more advanced handsets in the intervening months, including the company's latest flagship Galaxy S III.

post #2 of 23
The victory would not be empty as Apple can add the new infringing devices to the injunction order provided the same IP is At issue. Otherwise, why would either party care?
post #3 of 23

It's...Litigiception!

 

BWAAAAHHHHHM

post #4 of 23
It's like Dickens' "Bleak House" except there is so much money that even lawyers can't burn through it all.
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post #5 of 23
Quote:
Originally Posted by Robin Huber View Post

It's like Dickens' "Bleak House" except there is so much money that even lawyers can't burn through it all.

Here's a video for those that don't know about "Bleak House" or want to learn to some Quite Interesting facts about it.


edit: I forgot this Video clipping option was so very limited. If you play the embedded video it starts at 28m:19s in or you can simply click this link: http://www.youtube.com/watch?v=SyBX1wMkKVo&t=28m19s


Edited by SolipsismX - 1/14/13 at 3:50pm

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post #6 of 23
So Samsung is saying its OK to steal a little bit? What's next, telling kids it's OK to steal a chocolate bar because the cost to the store is negligible?

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post #7 of 23
Cool clip. Doesn't the judge look a bit like Piers Morgan?
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post #8 of 23
Quote:
Originally Posted by Robin Huber View Post

Cool clip. Doesn't the judge look a bit like Piers Morgan?

Or a lot like Stephen Fry.

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post #9 of 23

The patent part is interesting.   Apple claims that their universal search patent was infringed by the Nexus search widget.   A three judge panel said the claims construction didn't seem to support that case, because --

 

That patent's claims require that a search term goes to " ... to a plurality of heuristic modules, wherein: each heuristic module corresponds to a respective area of search and employs a different, predetermined heuristic algorithm corresponding to said respective area to search the area ....".

 
However, the Nexus universal search does NOT employ a plurality of modules with each one using a different algorithm... which is why the panel of three judges thought the claims were probably not infringed.
 
Apple's counterargument is that they didn't mean it that way;  but that instead the "each" and "different" weren't supposed to be meant to be considered together.   Trouble is, it doesn't easily read that way.

Edited by KDarling - 1/14/13 at 6:38pm
post #10 of 23
Quote:
Originally Posted by EricTheHalfBee View Post

So Samsung is saying its OK to steal a little bit? What's next, telling kids it's OK to steal a chocolate bar because the cost to the store is negligible?


The issue has nothing to do with stealing.

 

The issue is whether Apple can convince a panel of experienced judges that they have suffered immense financial harm because they claim oodles of people like yourself, would have chosen to buy the Nexus and not an iPhone, because the Nexus had a a universal search widget.

 

Good luck with that,

 

Quote:

Several legal experts believe Apple faces long odds in trying to persuade the appeals court to revisit its decision.

 

Only a week or so ago, the Justice Department and USPTO said this:

 

Quote:
Companies that own a key patent, such as those that ensure mobile and other electronic devices work together, should be allowed to win sales bans as a punishment for infringement only in rare, very specific cases, the Justice Department and U.S. Patent and Trademark Office said in a joint policy statement on Tuesday.

 

So given the Judges reviewing this would likely take that into consideration, not to mention the ludicrous proposition that Apple could convince anyone they are suffering significant financial losses over  search widget, it's doubtful Apple are going to get anywhere with this.

post #11 of 23
Quote:
Originally Posted by cnocbui View Post


The issue has nothing to do with stealing.

The issue is whether Apple can convince a panel of experienced judges that they have suffered immense financial harm because they claim oodles of people like yourself, would have chosen to buy the Nexus and not an iPhone, because the Nexus had a a universal search widget.

Good luck with that,


Only a week or so ago, the Justice Department and USPTO said this:


So given the Judges reviewing this would likely take that into consideration, not to mention the ludicrous proposition that Apple could convince anyone they are suffering significant financial losses over  search widget, it's doubtful Apple are going to get anywhere with this.


I think it's actually not that hard to believe that Apple has suffered losses from this. Heck, in the Samsung case, Samsung presented evidence that a significant percentage of their customers bought Tabs thinking that they were iPads. The problem is that the judge wouldn't let several of Apple's witnesses testify.

The judge seems to have set the standard for proving harm far too high.
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post #12 of 23
Quote:
Originally Posted by jragosta View Post


I think it's actually not that hard to believe that Apple has suffered losses from this. Heck, in the Samsung case, Samsung presented evidence that a significant percentage of their customers bought Tabs thinking that they were iPads. 

 

That's not what happened. (You're probably an innocent victim of reading today's typically poor tech reporting.)

 

The trial evidence was a Samsung paid-for survey that showed that half the people who remembered seeing a Samsung Tab TV commercial, thought the ad had been for the iPad.

 

So ironically, it meant that Samsung's ad was inadvertently doing free advertising for Apple.

 
Quote:
The judge seems to have set the standard for proving harm far too high.

 

A three judge panel ruled that Apple had not shown that the Nexus universal search widget was the reason people bought the Nexus instead of  the iPhone.  Quote:  "Apple has presented no evidence that directly ties consumer demand for the Galaxy Nexus to its allegedly infringing feature"

 

Apple could not come up with any such evidence for obvious reasons.   The number of people who would've used that as their deciding purchase factor must be almost immeasurable.   Heck, most people wouldn't even know it was there until after purchase.

 

Most importantly, it would've had to infringe on Apple's patent in the first place.  "To establish a sufficiently strong causal nexus, 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, "


Edited by KDarling - 1/15/13 at 9:40am
post #13 of 23
Quote:
Originally Posted by KDarling View Post

 

That's not what happened. (You're probably an innocent victim of reading today's typically poor tech reporting.)

 

The trial evidence was a Samsung paid-for survey that showed that half the people who remembered seeing a Samsung Tab TV commercial, thought the ad had been for the iPad.

 

So ironically, it meant that Samsung's ad was inadvertently doing free advertising for Apple.

He may also be remembering a Best Buy store return report covering a small number of stores (30) showing one reason for returns of the Tab was a few buyers assuming it would be the same as an iPad. which it obviously was not.

http://appleinsider.com/articles/12/07/27/samsungs_tablets_returned_after_buyers_realized_they_werent_ipads

 

The claim that they were returned because customers thought they bought iPads was made my Apple, not the Best Buy survey itself.  Apple's legal team was just adding a little spin to what the survey actually reported. And even then the survey only indicated that 9% of those that gave a reason for returning their Tab purchase did so because it wasn't an iPad. The overwhelming majority of the returns were for other customer-stated reasons.


Edited by Gatorguy - 1/15/13 at 9:59am
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post #14 of 23
Quote:
Originally Posted by Gatorguy View Post

He may also be remembering a Best Buy store return report covering a small number of stores (30) showing one reason for returns of the Tab was a few buyers assuming it would be the same as an iPad. which it obviously was not.
http://appleinsider.com/articles/12/07/27/samsungs_tablets_returned_after_buyers_realized_they_werent_ipads

The claim that they were returned because customers thought they bought iPads was made my Apple, not the Best Buy survey itself.  Apple's legal team was just adding a little spin to what the survey actually reported. And even then the survey only indicated that 9% of those that gave a reason for returning their Tab purchase did so because it wasn't an iPad. The overwhelming majority of the returns were for other customer-stated reasons.

Still waiting for your evidence that refutes the AI article which was quite clear that those people thought they were buying an iPad. Sorry, but your claim isn't proof.

Not to mention, of course, the fact that even Samsung's attorneys couldn't tell the difference.
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post #15 of 23
Quote:
Originally Posted by jragosta View Post


Still waiting for your evidence that refutes the AI article which was quite clear that those people thought they were buying an iPad. Sorry, but your claim isn't proof.

Not to mention, of course, the fact that even Samsung's attorneys couldn't tell the difference.

Well tell me what you think the AI article claims before worrying about whether I'm refuting it. I don't think anything I just wrote disagrees with it. 

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post #16 of 23
Quote:
Originally Posted by jragosta View Post

Not to mention, of course, the fact that even Samsung's attorneys couldn't tell the difference.

 

One attorney.   For all we know, she wasn't wearing her glasses.  The other (male) attorneys sitting further BEHIND HER knew which was which and one of them spoke up immediately with the right answer.

 

I sometimes wonder if there's some male-vs-female perception and upbringing factors going on with these design patent trials.   It's not politically correct, but stereotypes exist for a reason.

 

The judge was female, and so was that attorney.   They were confused by the similar shapes.   The men knew instantly to look for the Home button and other obvious cues.  I bet if the difference had been some subtle color shade, the women would have been able to recognize each model instantly, and many men would not.   Different cultural training.

 
In fact, it's interesting that all over the world, it's been female judges who ruled that the shapes were too similar, whereas it's been male judges who ruled that there were obvious differences and/or that design parts were clearly functional.   Just off the top of my head, remember all these:
 
  • Australia - female judge grants Tab injunction.   All male appeals court overturns.
  • Germany - all female court rules Tab infringes on Apple's vague registered Community Design.  Samsung modifies.
  • Germany - all female court rules modified Tab 10.1N design is still too close to Apple's design.   All male appeals court overturns decision, saying the difference was now clear enough.
  • Netherlands  -  male judge notes that tablet design factors such as rounded corners are obviously functional and thus not protectable.
  • UK - male judge determines the Tab does not infringe Apple's vague design patent.
  • California - mostly male (7 to 2) jury determines that the Tab did not infringe Apple's design patent.
  • California - female judge (Koh) listens to the sole female judge on triple judge appeals court and grants Tab injunction.   An all male appeals court later remands and forces her to lift the sales ban.

 

Or maybe it's all just extraordinary coincidence.  

Edited by KDarling - 1/15/13 at 11:32am
post #17 of 23

Very astute and interesting observation, that.
 

post #18 of 23
Quote:
Originally Posted by KDarling View Post

One attorney.   For all we know, she wasn't wearing her glasses.  
The other (male) attorneys sitting further BEHIND HER knew which was which and one of them spoke up immediately with the right answer.


I sometimes wonder if there's some male-vs-female perception and upbringing factors going on with these design patent trials.   It's not politically correct, but stereotypes exist for a reason.


The judge was female, and so was that attorney.   They were confused by the similar shapes.   The men knew instantly to look for the Home button and other obvious cues.  I bet if the difference had been some subtle color shade, the women would have been able to recognize each model instantly, and many men would not.   Different cultural training.

 
In fact, it's interesting that all over the world, it's been female judges who ruled that the shapes were too similar, whereas it's been male judges who ruled that there were obvious differences and/or that design parts were clearly functional.   Just off the top of my head, remember all these:
 
  • Australia - female judge grants Tab injunction.   All male appeals court overturns.
  • Germany - all female court rules Tab infringes on Apple's vague registered Community Design.  Samsung modifies.
  • Germany - all female court rules modified Tab 10.1N design is still too close to Apple's design.   All male appeals court overturns decision, saying the difference was now clear enough.
  • Netherlands  -  male judge notes that tablet design factors such as rounded corners are obviously functional and thus not protectable.
  • UK - male judge determines the Tab does not infringe Apple's vague design patent.
  • California - mostly male (7 to 2) jury determines that the Tab did not infringe Apple's design patent.
  • California - female judge (Koh) listens to the sole female judge on triple judge appeals court and grants Tab injunction.   An all male appeals court later remands and forces her to lift the sales ban.

Or maybe it's all just extraordinary coincidence.  

Wow! Great observation.

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post #19 of 23

I can't take full credit for noticing. 

 

It hit me one day when I asked my wife to hand me the cable box remote control.   Mind you, she uses it every single day.

 

"Which one is it?", she asked. "You know they all look the same to me!"

 

Uh, yes, honey, you're right.  Hand me the silver one please.

 

"Oh, okay!"

 

 

post #20 of 23

And one more example, from just a few hours ago today:

 

  • Netherlands - a Hague court made up of three male judges ruled that the Samsung 7, 8 and 10 inch tablets do not infringe on Apple's 2004 EU Community Design.   More specifically, they sided with the UK judge's decision.

 

(Apple was ordered to pay Samsung's court costs, and Apple was also warned it faces an immediately payable penalty of   €100,000 per day if it tries to interfere with Galaxy Tab imports, exports or sales.)


Edited by KDarling - 1/16/13 at 2:09pm
post #21 of 23
jragosta, I don't buy the SAMSUNG GALAXY Tab tablet buyers ever believed they were buying an APPLE IPAD.
The boxes are different, the names are different. Whomever these people claimed to have been "duped" could only claim they "wished"for the iPad application and interface and wanted to cheap out.
If you bought a Gemini brand device you would hope for Sony quality for Gemini prices and realize it wasn't upon using it.You wouldn't buy an Apex TV and expect it to be as good as a SONY tv either, yet you would hope it might be. Of course they are different. SO buying a device clearly labeled with another companys' name is not new to consumers. The British judge said it best in October 2012 when he reaffirmed the Galaxy tabs not infringing Apple, "The test is not whether a 5 year old can tell the devices apart, the legal test is whether a 'knowledgable' person can. And clearly the branding upon the devices is more than sufficient for that determination."
post #22 of 23
Originally Posted by ronf57 View Post
jragosta, I don't buy the SAMSUNG GALAXY Tab tablet buyers ever believed they were buying an APPLE IPAD.
The boxes are different, the names are different.

 

You may not buy it, but that's what the people and even the companies themselves reported. So that's it.


 Whomever these people claimed to have been "duped" could only claim they "wished"for the iPad application and interface and wanted to cheap out.

 

That's the very idea.


"The test is not whether a 5 year old can tell the devices apart, the legal test is whether a 'knowledgable' person can. And clearly the branding upon the devices is more than sufficient for that determination."

 

No, that's not the test at all.

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post #23 of 23
Quote:
Originally Posted by ronf57 View Post

jragosta, I don't buy the SAMSUNG GALAXY Tab tablet buyers ever believed they were buying an APPLE IPAD.

 

I can believe perhaps a grandmother sent to buy an iPad, might come out with a Tab.  But that would the fault of the salesperson, not her.   It's not like these expensive tablets are just sitting around in boxes, and you accidentally pick up the wrong one.  On the contrary, you have to ASK for what you want to buy.

 

The Best Buy study, for example, had nothing that said customers bought a Tab thinking they had bought an iPad.

 

The only number in it even close, was a relatively small percentage (compared to other return reasons) of buyers who came back and exchanged it for an iPad. 

 

It was Apple's lawyers who tried to spin that exchange number into representing a huge amount of consumer confusion... and their claim is what lazy reporters repeated.

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