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Apple v. Samsung Worldwide Litigation Overview

Apple v. Samsung Worldwide Litigation Overview. Dewayne A Hughes AIPLA-CNCPI Meeting Paris, France March 12, 2013. Agenda. Overview of Apple v. Samsung Worldwide Litigation Patent Litigation in the U.S. – ITC & District Courts Apple v. Samsung in the U.S.

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Apple v. Samsung Worldwide Litigation Overview

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  1. Apple v. SamsungWorldwide Litigation Overview Dewayne A HughesAIPLA-CNCPI Meeting Paris, France March 12, 2013

  2. Agenda Overview of Apple v. Samsung Worldwide Litigation Patent Litigation in the U.S. – ITC & District Courts Apple v. Samsung in the U.S. Impact on U.S. Injunctive Relief in District Courts Comparison of Decisions with Pending Worldwide Apple v. Samsung Litigation

  3. "Patent War" Source: PCMag.com

  4. Apple v. Samsung Worldwide Overview Over fifty pending cases in at least nine countries Six U.S. Litigations – Consolidated to five Litigation in South Korea, Japan, France, Italy, United Kingdom, Germany, Netherlands, Australia

  5. Apple v. Samsung Patent Litigation US: Apple sues Samsung in US Federal Court - "Apple 1" Netherlands: Ban of Apple products denied; Galaxy Tab 10.1 Infringes. December 2011 Germany: Galaxy Tab 10.1 Banned. Netherlands: 3 Samsung Phones banned. US: "Apple 1" - Preliminary Injunction of Samsung products denied. France: Court denies Preliminary Injunction of Apple products.

  6. Apple v. Samsung Patent Litigation Italy: Court denies Preliminary Injunction of Apple Products. Netherlands: infringement finding for Tab 10.1 overturned Germany: Slide to unlock claims brought by Apple and Samsung dismissed. May 2012 US: "Apple II" filed. Main patent is "unified search" used by products featuring Siri. US: "Apple 1" – Federal Circuit affirms Preliminary Injunction denial for Samsung products except Tab 10.1.

  7. Apple v. Samsung Patent Litigation US: "Apple II" – Preliminary Injunction of Galaxy Nexus phone is granted by district court. Germany: Preliminary Injunction of Samsung phones requested by Apple is denied. UK: Court finds no infringement by Samsung Galaxy Tab 10.1. Germany: Samsung does not infringe touch-screen event model patent. October 2012 US: Jury Verdict award in Apple I of $1.05B. Japan: Samsung found not to infringe. South Korea: Split decision, both parties infringe some but not all patents. U.S. - Apple II – Federal Circuit overturns Preliminary Injunction. Netherlands: Samsung does not infringe touch screen patents.

  8. Apple v. Samsung Patent Litigation US: "Apple I" – Permanent Inunctions denied. Europe: Samsung withdraws sales ban requests. European commission files Anti-Trust complaint against Samsung. US: Apple appeals preliminary injunction decision in Apple II and permanent injunction decision in Apple I. ??? Netherlands: Samsung Tablets do not infringe Apple design patents.

  9. U.S. Patent Litigation Paths District Courts ITC Federal Circuit U.S. Supreme Court

  10. Apple v. Samsung : US Cases Summary Apple I – 11-CV-1846 - Status Jury Verdict award $1.05 B Injunction denied and pending appeal Triple damages denied and pending appeal Apple II – 12-CV-0630 - Status Preliminary Injunction denied – trial pending ITC Cases ITC I – 337-794 – Initial Determination that Apple does not infringe any of Samsung's asserted patents. ITC II – 337-794 – Initial Determination that Samsung infringes five of six Apple’s asserted patents

  11. Apple v. Samsung – Apple I: Mobile Phones Source – Prafulla.net

  12. Apple v. Samsung – Apple I: Tablets Utility Patents also asserted against Samsung Tablets Apple asserts additional tablet design patent

  13. Apple I - Outcome Jury finds willful infringement by most Samsung devices for: '381 patent ("bounce-back") '915 patent ("single and multi-touch patent") '163 patent ("enlarging/centering documents") D'677 (iPhone front face design) D'305 (GUI Icons) D'087 (iPhone full front view with casing) Trademark and Trade Dress of iPhone Apple found not to infringe any of Samsung's patents Samsung does not infringe tablet design patents, trademarks, or trade dress Damages awarded to Apple – Injunction is denied

  14. Apple v. Samsung – Apple II Utility Patents asserted by Apple include: 5,946,647 (the '647 Patent") - System and method for performing an action on a structure in computer-generated data 6,847,959 (the "'959 Patent") - Universal interface for retrieval of information in a computer system 8,046,721 (the '721 Patent") - Unlocking a device by performing gestures on an unlock image (aka "Slide to Unlock" - Subsequently removed in amended complaint)  8,074,172 (the '172 Patent") - Method, system, and graphical user interface for providing word recommendations 8,014,760 (the "'760 Patent") Missed telephone call management for a portable multifunction device 5,666,502 (the "'502 Patent") - Graphical user interface using historical lists with field classes 7,761,414 (the "'414 Patent") - Asynchronous data synchronization amongst devices 8,086,604 (the "'604 Patent") - Universal interface for retrieval of information in a computer system

  15. Apple II Outcome Preliminary Injunction denied District Court initially interprets "Nexus" test to require that patented feature is one contributor to consumer demand of product District Court determined that all patents except the '647 patent ("Unified Search") did not satisfy the "Nexus" test Federal Circuit overturns "Nexus" test requires that patented feature is THE driver of consumer demand Trial date set for March 2014

  16. Comparing Outcomes US Utility patents are difficult to compare with international counterparts due to variation in claim language "Bounce-Back" Utility Patent U.S./South Korea/Japan/Netherlands – Samsung infringes Tablet Design Patentsand Galaxy Tab 10.1 U.S. – No Infringement by Samsung U.K./Netherlands – No infringement by Samsung Germany – No Infringement BUT sales ban based on unfair competition claim iPhone Design Patents U.S./U.K./Netherlands – No infringement by Samsung Germany - Pending

  17. Apple v. Samsung – ITC Cases ITC I – 337-794: Initial Determination that Apple does not infringe any of Samsung's four asserted patents Initial Determination also concludes that there is no domestic industry of Samsung's asserted patents Commission review decision expected in February 2013 ITC II – 337-794: Initial Determination that Samsung infringes five of six asserted patents Initial Determination that Samsung infringes 5 of 6 asserted patents Patents include two design patents covering cross-section and side-view of iPhone as well as front view (variation of D'677 and D'087 in Apple I) Commission review decision expected February/March 2013

  18. U.S. Patent Litigation - ITC ITC – International Trade Commission Independent federal agency Responsible for international trade investigations, Harmonized Tariff Schedule; studies and reports for the President, USTR and the Congress Approximately 420 employees – including 24 Administrative Law Judges Six Commissioners appointed by the President and confirmed by U.S. Senate

  19. United States International Trade Commission Section 337 cases assigned to Administrative Law Judges Trials similar to District Court bench trials ITC Judges follow but not bound to Federal Rules of Evidence – (e.g., ALJs more likely to admit hearsay) ITC Judges render “Initial Determinations (IDs)” that are subject to review by Commission Exclusion orders may be reviewed by executive branch (through The Office of the U.S. Trade Representative) ITC Decisions may be appealed to Federal Circuit

  20. Overview of an ITC Patent Case ITC Remedies Exclusion of products from US. Enforced by US Customs Cease and desist orders. Enforced by ITC with civil penalties No money damages AdministrativeLaw Judge Commission Federal AppealsCourt Initial Decisionon merits Final Decision Appellate DecisionDeferential on remedy issues Orders remedy

  21. Section 337: Substantive Elements • Importation • Accused products must be imported or sold off-shore for importation into U.S. • ITC jurisdiction extends to sales in U.S. of imported products • Infringement • Direct or indirect infringement • Federal Circuit precedent applies • Domestic Industry • Economic prong • Technical prong

  22. United States International Trade Commission Why the ITC? Speed Cases generally completed within 15 months Protective Order issues immediately Discovery commences immediately IP Expertise 9/10 cases are Intellectual Property cases. Broad Injunctive Remedies Directs U.S. Customs Service to deny entry at all U.S. ports Framework for Customs Service seizure and forfeiture An In Rem Order – Functions without regard to personal jurisdiction Can cover downstream products that contain an infringing component ITC procedures available to Complainant to broaden Customs enforcement (advisory opinion procedures, enforcement procedures, modification procedures)

  23. Disadvantages of ITC No money damages Speed as a detriment Generally higher expense due to fast-pace of proceedings No Jury Trials

  24. ITC and District Court Often a parallel District Court case is filed Defendant can stay case as a matter of right ITC case will proceed to conclusion District Court stay can be lifted and case tried again, for money damages Commission determination on infringement and validity is persuasive but not binding

  25. Exclusion Order vs. Injunctive Relief ITC Exclusion Order - 19 USC § 1337 (d) (1) If the Commission determines, as a result of an investigation under this section, that there is a violation of this section, it shall direct that the articles concerned, imported by any person violating the provision of this section, be excluded from entry into the United States, unless… District Court Injunctive Relief - 35 USC § 283 The several courts having jurisdiction of cases under this title 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. Supreme Court decision in eBay v. MercExchange and subsequent Federal Circuit decisions are controlling precedent

  26. Exclusion Order vs. Injunctive Relief eBay Factors Patent owner has suffered irreparable harm Remedies available at law, such as monetary damages, are inadequate Balance of the hardships are in favor of patent owner Public interest would not be disserved Note: Preliminary Injunction also includes a likelihood of success analysis Apple v. Samsung "Nexus" Test To show irreparable harm, must show a causal nexus between the harm alleged (e.g., loss of sales) and the infringing conduct. Patented feature must be THE driver of consumer demand for the competing product if relying on lost sales to show irreparable harm Exclusion Orders No irreparable harm requirement

  27. Increasing ITC Litigation * Estimated for 2013 by USITC

  28. Thanks for your attention! Questions? Dewayne Hughes Sr. IP Counsel North America Dräeger                                                3135 Quarry Road Telford, PA 18969  USA Tel  +1-215-360-5924 dewayne.hughes@draeger.com

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