

US federal appeals court reverses Galaxy Nexus sales ban - Reltair
http://arstechnica.com/tech-policy/2012/10/us-federal-appeals-court-reverses-galaxy-nexus-sales-ban/

======
rayiner
Since there appears to be some confusion about what this means, I'll try and
shed some light on it.

The first thing to understand is this is not an appeal involving the whole
case. It's an appeal of the district court's decision to grant Apple a
preliminary injunction ("the sales ban"). A preliminary injunction is a legal
remedy where the defendant is enjoined (prevented) from engaging in some
allegedly harmful conduct before the case is decided on the merits. A judge
has the power to grant preliminary injunctions because in some cases, by the
time a decision is reached the harm might have already been done. E.g. if
you're complaining that some company is illegally dumping nuclear waste onto
your property every week, you don't want the dumping to continue while the
court decides whether it's legal. In that case, the judge has the discretion
to grant you a preliminary injunction, which basically "freezes the status
quo" pending the resolution of the case. Note a preliminary injunction will
often involve some sort of bond requirement, requiring the plaintiff to post
bond to compensate the defendant for any losses arising from the injunction in
case the defendant wins.

The judge has discretion to grant a preliminary injunction, but is supposed to
only do it when there would otherwise be "irreparable harm." This is what the
appeal is about. The court said that the trial judge abused her discretion in
granting the preliminary injunction because Apple had not proven irreparable
harm. Apple claimed that they would lose market share if shipments were
allowed to continue, and that was irreparable harm. What the court said was
that unless Apple could prove that there was a "causal nexus" between Samsung
infringing the patent and people buying Galaxy Nexus phones, there was no
irreparable harm because of lost market share. In other words, Apple had to
prove that people were buying Galaxy Nexus phones only because of the
infringing patent. It wasn't sufficient to prove, for the purposes of
evaluating irreparable harm, whether Samsung's infringement simply made the
product more attractive than it would otherwise be.

Incidentally, the "abuse of discretion" language has a very specific meaning.
It doesn't mean the judge didn't have the power to grant the injunction.
Rather, it means the judge didn't grant the injunction on proper grounds.
Generally, appeals courts do not review decisions wholesale ("de novo").
Instead, they give the trial judge a lot of latitude. The amount of latitude
depends on the specific type of decision. Decisions that involve "judgment
calls" about the sufficiency of evidence are given much more latitude than
decisions that involve say an interpretation of statutory language. "Abuse of
discretion" is a standard of reviewing a lower court decision that basically
means the lower court decision will stand unless the appeals court decides
that it was totally in left field. In this case, the appeals court said that
granting the injunction was an abuse of discretion because the judge granted
the injunction despite Apple's evidence being wholly insufficient to meet the
legal requirements for granting the preliminary injunction. It wasn't just a
difference in judgment where the appeals court thought the evidence was
insufficient to establish irreparable harm but could see how the trial court
thought it was sufficient. If that had been the case, the appeals court would
have let the decision stand. Instead, the appeals court could see no way to
justify the finding of irreparable harm.

~~~
lusr
> a preliminary injunction will often involve some sort of bond requirement

So depending on how large that is, it can say a bit about how serious Apple is
about this stuff (or how deep their pockets are, maybe)? For anybody who's
curious, like I was, the bond amount was $95,637,141.60 (~$95.6 million) [1].
Is Samsung now entitled to get some of that because of the unjustified
preliminary junction? Or only if they win?

[1] <http://assets.sbnation.com/assets/1221082/show_temp.pdf>

~~~
travisp
I would guess that because the appeals court decided that granting the
injunction was decided by the judge on improper grounds, Apple doesn't have to
lose the bond amount. Apple's claims were not proven wrong, but the judge made
the wrong decision based on Apple's claims.

I am not a lawyer.

~~~
DannyBee
This is wrong.

I can't talk about this case specifically for various legal reasons, but:

In general these bonds are exactly to pay for lost sales due to a preliminary
injunction that wasn't deserved. The injunction does not even become effective
until the bond is posted. The only case you wouldn't recover is if the
injunction wasn't upheld but you lost the lawsuit anyway, and even then, it
depends on what "lost" means. This should be rare, since injunctions take into
account "likelihood of success on the merits".

Additionally, if you win, it doesn't even matter whether the injunction was
deserved at the time, you can still recover on the bond because you were
enjoined from doing something you had the right to be doing.

As for whether it matters if it was the judges fault or Apple's fault: For
patent cases like this, there are no grounds for reversing a preliminary
injunction _except_ deciding it was an abuse of discretion (since that is the
standard of review for this kind of injunction). So _all_ reversals are
because it was granted improperly by the judge.

I am a patent attorney.

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ChuckMcM
That is an interesting remand. This part stuck out for me:

 _"Having held that the district court’s irreparable harm determination was an
abuse of discretion, we would ordinarily refrain from addressing other issues.
Here, however, it is in the interest of judicial economy that we address a
limited aspect of the district court’s likelihood of success analysis that may
become important on remand — claim construction."_

(note this straddles page 12 and 13 of the PDF [1]) I am not a lawyer, I have
dealt with many though, and I've dealt with them on patent cases. Reading this
from the Appeals court is like Steve Jobs saying "Oh and one more thing." They
say "we could have stopped here _but in the interest of judicial economy_
we'll add a bit more." I read that to mean the Federal Circuit disagrees with
the _possible infringement_ of this patent in the first place. They go into a
long discussion about what Apple is claiming, point out that Apple's legal
construction is convoluted and then say,

 _"We hold that the district court’s determination that 'each' modifies
'plurality of heuristic modules' is erroneous because it contravenes the plain
terms of the claim. The word 'each' appears not before 'plurality of modules,'
but inside the 'wherein' clause and before the phrase 'heuristic modules.'"_

This feels like the Federal Circuit telling Judge Koh she needs to go back and
re-examine her whole line of reasoning on this patent.

[1] [http://www.cafc.uscourts.gov/images/stories/opinions-
orders/...](http://www.cafc.uscourts.gov/images/stories/opinions-
orders/12-1507.pdf)

~~~
DannyBee
Just to point out: You shouldn't read into the federal circuit from this
opinion. This was a 3 judge panel out of 12 judges (well, 11, there is one
vacant seat). They are likely trying to keep their docket sane by not having
another appeal on this part of it.

I mainly say this because this is the same court that has brought you
patentable DNA, etc.

If you wait a month, y'all will hate them again.

------
greggman
Has anyone read the unified search patent enough to understand what's unique
about it? For example, Windows NT4 shipped with unified search. It even had a
plugin architecture so you could help it index new file formats. It was not
enabled by default. You had to go turn it on.

~~~
WildUtah
Yes, they have. There is nothing unique about it.

But that's the case with most patent grants these days and usually is no bar
to prosecution.

------
marshray
"Apple must show that consumers buy the Galaxy Nexus because it is equipped
with the apparatus claimed in the ’604 patent—not because it can search in
general, and not even because it has unified search."

Wow, is this as big as I think it is?

Or is it just some technicality relating to the sales injunction that's not
applicable to determination of infringement in general?

~~~
stock_toaster
I found that a bit confusing as well. I wonder if the court was saying that a
ban was inappropriate, and instead the remedy should have been something like
a fine for every device sold that infringed (until such infringement was
removed)?

~~~
stephengillie
A big point seems to be that people buy neither an iPhone nor a Galaxy Nexus
specifically for their search abilities, regardless of how much Apple wanted
to advertise Siri in court.

~~~
stock_toaster

      > A big point seems to be that people buy neither an iPhone nor a Galaxy Nexus specifically for their search abilities
    

I agree.

 _Assume_ infringement of something, lets say a patented chemical in
particular competitors dog food. If the court claims it is not a 'causal
nexus' (people don't buy the dog food for the chemical), and that if
preventing the competitor from selling the dogfood was not appropriate (no
causal nexus) then I guess the remaining "relief" would be entirely monetary?

If the infringement continued after a finding, maybe it would become willful
at some point meaning higher fines?

    
    
      > , regardless of how much Apple wanted to advertise Siri in court.
    

I don't see how this portion of your comment is relevant.

~~~
Karunamon
Because Siri is Apple's answer to search on an iPhone, or at least thats's how
I interpreted it.

~~~
bdcravens
iOS has had unified search prior to Siri. (iOS 3)

~~~
Karunamon
Yes but search is Google (and android's) defining feature. You could make the
argument that Siri is the same for iOS.

~~~
bdcravens
Not really. Siri wasn't introduced until iOS 5, and even then, would only run
on one version of the 3 (3GS/4/4S) iPhones that could run iOS 5.

------
zmmmmm
So this is the second humiliating reversal of a ban for Judge Lucy Koh in a
matter of months. I wonder how much impact it has on your professional career
as a judge when you keep making high profile decisions that have to be
overturned / rescinded a few months later?

~~~
dannyr
Actually, companies that want a product banned might want to go to her because
she will likely hand out an injunction than other judges.

------
OldSchool
So a little good news: It seems there must still be a pocket of objectivity
somewhere between the provincial foolishness of a jury and the largely
political decisions made by the Supreme Court.

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ben1040
Funny that it came down to a question of "causal nexus."

~~~
wmf
I hear the HTC Causal Nexus is going to be announced at the end of the month.

------
asalazar
You can't stop the Android steam roller. It's Windows vs Mac circa 1987 all
over again

~~~
stephengillie
Based on this prognostication, what do you expect to happen next?

Have you shorted appropriately?

~~~
prodigal_erik
This comes up all the time, and it's still extremely risky advice. Even if
you're right, a margin call on your short position could bankrupt you before
you win. You're gambling you know just how irrational the market is being.

~~~
tsotha
As Keynes said "Markets can remain irrational longer than you can remain
solvent."

------
mtgx
I'm glad they called out judge Koh's abuses. She should be called out for the
ones in the Apple vs Samsung trial as well (the other one).

------
CptCodeMonkey
Regardless of position on this subject, it seems like I am constantly reading
about how verdict X was overturned in some appeals court or such. The effect
on me is to feel less like US law is remotely sane and more whoever can come
up with the latest psuedo-philosophical circle jerk angle and still stay
financially solvent.

