updated 09:45 pm EDT, Thu August 8, 2013
ITC decision, hearings on Samsung and DOJ e-book case
Tomorrow will mark a busy and important day on several legal fronts for Apple, as it awaits a much-watched International Trade Commission decision on its complaint against Samsung. In addition, two separate but important federal court hearings will be held on Friday; one related to another Apple-Samsung matter stemming from the first trial, and another where Apple will get to argue the deficiencies of the Department of Justice's proposed settlement over the e-book price-fixing case. Apple plans to appeal the DOJ verdict.
The ITC matter revolves around four Apple patents (that are not standards-essential) the company says Samsung has infringed. The preliminary ruling agreed strongly with Apple's contention, and a follow-up investigation by the ITC's own staff not only concurred with the initial finding by Judge Thomas Pender, but added that a sales ban on the accused products would not harm the public interest, since most of the products aren't sold any longer and there are plenty of alternative options for buyers on the Android platform.
Curiously, the full ITC panel did not consider consumer choice a factor when it ruled that Apple's iPhone 4 and iPad 2 (among other, older GSM-enabled products) could be barred from sale for infringing a standards-essential patent (SEP), in contradiction to its own previous rulings on SEP-based sales injunctions. The Obama administration was forced to overturn the ban, citing concerns that sales injunctions on disputed SEPs would lead to mass abuse of the patent system by SEP holders who would use the threat of lawsuits, sales bans and other measure to "tie" SEP licenses (which should be licensed under FRAND guidelines) to non-SEP patents as Samsung has done in the case in question.
If the full ITC final decision in Apple's complaint includes a sales ban -- even though the case revolves around genuine non-SEP patent infringement -- Samsung and South Korea will likely call on the Obama administration to overturn the ban or be accused of "favoring" the US-based Apple. The first of the two federal court hearings on Friday also deals with sales bans and patent infringement, this time stemming from the US court trial between the two companies that ended with Apple being awarded more than billion dollars in damages.
Following that trial and Apple's complete victory on the charges, Judge Lucy Koh denied Apple any sales injunctions on the infringing Samsung products -- saying that one small portion of a product found to be infringing a non-SEP design still wasn't enough to prompt banning the product. Apple feels the double-standard created by Koh's ruling is unfair, and is appealing that portion of her decision.
The third hearing is related to Apple's recent loss against the DOJ on charges that it conspired with book publishers to raise prices on e-books and break Amazon's monopoly on the market. The iPhone maker is appealing the decision, and may have strong grounds for an appeal based on Judge Denise Cote's prejudicial statements prior to the start of the trial.
In the meantime, the DOJ has proposed a settlement to avoid an appeal -- but with terms that seem unusual and even comical to long-time judicial observers. Apple has called the settlement offer "draconian," and the book publishers have piled on-- complaining that they previous settled with the DOJ and yet are the ones being punished in the proposed settlement. Judge Cote will hold a hearing on Friday to examine the proposal and the arguments against it, though she is unlikely to rule on the matter on the same day.