carnegie

AppleInsider said:...

In a filing to the Supreme Court on Monday, Apple's legal team motions for a reconsideration of an April ruling by the U.S. Ninth Circuit Court of Appeals on the matter. While in April the court upheld most of a previous decision in the case, it rejected attempts by Epic and Apple to revisit the decision on Friday.

With the Ninth Court refusing to continue, Reuters reports Apple is moving the matter further up the judicial food chain to the Supreme Court.

Apple's motion claims that the appeals court reached too far by issuing a nationwide injunction against Apple over alleged violations of California state unfair competition law. The petition states it raises "far-reaching and important" questions about the power of judges in issuing broad injunctions.

During April's appeal, the Ninth Circuit Court of Appeals agreed with a lower court's 2021 decision rejecting claims from Epic that the App Store violated federal laws, including those relating to forbidding third-party app stores on its platforms. However, the court also upheld a ruling on California state law claims against Apple.

For developers, this largely covers policies such as anti-steering provisions that prevented developers from pointing customers in other directions than the App Store's In-App Payments system.

While Apple has made its motion to the Supreme Court, Epic Games has yet to request a hearing of its own appeal.

...

Apple hasn't filed a cert petition with the Supreme Court yet. The filing on Monday was with the Ninth Circuit. Apple asked the Ninth Circuit to stay its mandate (which would require Apple to change its anti-steering rules) while Apple petitions the Supreme Court and until the Court decides whether to grant its petition. So that Ninth Circuit filing makes it clear that Apple intends to file a cert petition, but I think that was already effectively a certainty. Apple has 90 days to file a cert petition with the Court, starting last Friday when the Ninth Circuit denied both panel rehearing and en banc rehearing. Epic also has 90 days to file a cert petition.

robin huber said:

I can think of worse things to do with 1 billion dollars than give it to one of our most important research institutions. Wait . . . make a deal to drop the suit in exchange for a $1B tax deductible gift!

Whatever Apple ends up paying would be a deductible expense anyway.

JP234 said:

$1.1 billion? For both companies to split?

Tim Cook: Just a second, I think I have cash. Let me get my wallet…

Most of that amount - almost $838 million - was against Apple. But that amount no longer matters as they have to have a new trial to determine damages as well as infringement with regard to one of the three patents, unless Caltech drops that claim. The Federal Circuit vacated both the damages award and the jury's infringement finding with regard to one of the patents based on the court's failure to give the jury a particular claim construction.

I think some people are misunderstanding what's going on here, likely in part due to some misleading reporting that seems to all trace back to Wired.

I don't think Apple is going after or challenging Fruit Union Suisse's logo. If someone is aware of an action in which it is, I'd appreciate a pointer. It isn't even the iconic Apple logo (pictured in the OP) which is at issue here. This is about the Apple Corps logo which the Beatles used and which Apple acquired the rights to in 2007.

Apple, understandably, has filed for international trademark protections for a black and white version of that logo as used in various ways associated with music, videos, performances and recordings. Individual countries take their own actions with regard to such applications. They might grant protection, they might deny protection, they might grant protection only with regard to certain (of the asked for) uses. Switzerland apparently granted protection with regard to certain uses while denying it with regard to others. Apple has apparently appealed that partial denial.

To be clear, Apple isn't asking for trademark rights with regard to all images of Apples. This is about a particular image which has been used for half a century. Apple's attempts to protect that trademark also aren't new. It's sought and acquired protections, and sought to renew such protections, for well over a decade.

Fruit Union Suisse apparently opposes Apple's appeal. It doesn't want Apple to be granted protections in Switzerland for that trademark even though such protections would be limited to uses which wouldn't seem to overlap much with what Fruit Union Suisse does and, at any rate, its logo looks nothing like the trademark Apple seeks protections for. That's understandable I suppose; it's better from Fruit Union Suisse's perspective to keep future possibilities - in terms of different logos and different uses - open. But its apparent claims about what Apple is doing and the implications thereof seem a bit disingenuous to me. 

beowulfschmidt said:

chasm said:

You can rest assured that in this particular case, the Solicitor General of any previous administration would have come to the same conclusion: Apple can’t try out a new argument when it had evidence of this at the original trial and didn’t use it. This is long-established legal precedent.

Exactly.  If Apple was in possession of information pertinent, and beneficial, to their case, and chose to withhold that information for whatever reason, they can't suddenly say "oh wait, what about this" just because they get a ruling they don't like.

That's generally true. But it isn't relevant here because it isn't what happened here. The issue here is that Apple and Broadcom weren't allowed to present certain evidence and make certain invalidity arguments in the district court trial. That's what this Supreme Court cert petition is about. The question is, should they have been allowed to make those invalidity arguments?

There are a number of moving parts and some nuance to this situation. But the basics, as relevant to the estoppel issue, are this: There were two separate sets of proceedings. There was a district court case in which Apple was accused by Caltech of infringement. There were also USPTO PTAB (Patent Trial and Appeal Board) proceedings in which Apple sought to challenge the validity of Caltech's patents.  In the latter proceedings Apple had to first file petitions asking the PTAB to institute IPRs (inter partes reviews) of the patents in question. In filing those petitions Apple had to identify the grounds on which it was asking to be allowed to challenge those patents. If the IPRs were instituted, it wouldn't be allowed - in those reviews - to argue other grounds for invalidity.

Apple decided not to identify certain possible challenge grounds in its PTAB petitions because it wanted to be able to argue those grounds in the district court infringement case. As the law was understood at the time - and as the law is actually written - a party would only be estopped (i.e. barred) from making certain invalidity arguments in other proceedings (e.g. a district court trial) if those arguments were raised, or reasonably could have been raised, in an actual inter partes review that resulted in a final decision. The Federal Circuit had been clear on this point. The IPR is separate from the petition asking for the IPR. Whether a particular grounds was raised, or reasonably could have been raised, in a petition asking for an IPR is not what matters. Whether it was, or reasonably could have been, in the instituted IPR is what matters. And because Apple chose not to raise certain invalidity grounds in its petitions, it couldn't raise those grounds in the IPRs themselves. Therefore it wasn't - or shouldn't have been based on existing precedent and the law itself - estopped from arguing those grounds in the district court proceedings.

But despite the clear Federal Circuit precedent, the district court ruled that Apple was statutorily estopped from making certain invalidity arguments to the jury even though it had chosen not to make those arguments in its IPR petitions. Then, among other rulings in the case (some in Apple's favor and some not), a different Federal Circuit panel upheld the district courts ruling and overruled the prior Federal Circuit precedent. In other words, the rules were changed in the middle of the game and Apple - through no fault of its own, as it was following the then clearly established rules - was never allowed to make certain arguments regarding the invalidity of Caltech's patents.

With the Solicitor General's recommendation that the Supreme Court not review the (new) Federal Circuit decision, it's less likely that the Supreme Court will grant cert and decide the matter itself. More often than not (though not always), when the Court issues a CVSG it follows the advice of the Solicitor General. But I think the Court should grant cert. This decision seems wrong, and at a minimum it represents a significant about face, and it has the potential to affect a lot of patent infringement defendants.