Long after Apple's victory over Samsung in a patent suit, the two companies met again today in court as a panel of judges decides whether to issue a sales ban on over two dozen Samsung devices. These phones and tablets were found to use features and designs patented by Apple, but so far, that decision has only resulted in a major fine for Samsung — in December, Judge Lucy Koh found that damages were enough for Apple to recoup its losses, so an out-and-out ban wasn't warranted. Now, Apple has brought its case to the Federal Court of Appeals, which is set to make what could be a near-final call on the issue.
Apple's requested ban doesn't mean much in the short term. Of the 26 phones and tablets it listed, 23 have been discontinued, and Samsung has worked to design around Apple's patents in the remaining three. Samsung, meanwhile, says the ban would have little impact on its design process. So why does this case matter on either side? For its part, Apple hopes that getting an injunction will make it easier to bring cases against newer products. Taking a quick dig at Samsung's design process, Apple attorney William Lee said that a new Samsung device might be almost identical to an old, banned one. "What they're saying to you is 'the product with this name is off the market," he said.
If successful, Apple could have an easier time in future cases
If it gets the ban, Apple would still need to bring more cases, but it could have an easier time in court. This would hurt Samsung, obviously, but it's not the company's only fear. Any injunction, it says, would hurt its relationship with retail stores and carriers, who would worry about whether they were accidentally selling an infringing product. Likewise, this could have a major impact on the second ongoing Apple vs. Samsung case, which should go to trial early next year. Though it decisively won the original case, Apple is on the defensive here. Koh decided Apple hadn't proved its patents were a driving factor in how customers chose phones. For Apple to get its injunction, it first has to convince the court that this bar was set far too high, then make a case for why it meets a different, lower standard.
"There's no proof of any infringement here being a driver, much less the driver, of consumer demand."
"I don't think that anybody in Apple's position" could absolutely prove a major link between a single feature or collection of features and sales, said Lee. Companies can be required to prove "irreparable harm," but holding Apple to this standard would be a "fundamental change in American patent law," he argued. But Samsung has steadily claimed that the patents in question weren't major factors when buying a phone. "There's no proof of any infringement here being a driver, much less the driver, of consumer demand," said Samsung lawyer Kathleen Sullivan. During the case, Apple presented a report showing how much customers would pay for the extra UI features Samsung copied — on phones, an extra $100.
Sullivan questioned whether the survey itself was relevant, an argument that seemed to hold little water with the judges. She used the example of one car company copying another's cupholders: "The fact that I'd pay $10 more for a car that I was going to buy anyways" doesn't show that it's driving consumer demand, she said. "It still doesn't tell you that the phone with the infringing feature will be chosen over the non-infringing product," she said. Judge William Bryson disagreed. "It shows that consumers value that feature," he said. "That seems to me to be the very essence of what a driver of demand is." He then moved the question from cupholders to something like a hybrid engine, which he said could be an important feature even if customers still decided on a cheaper, non-hybrid one.
Is Apple's user experience like a cupholder or a hybrid engine?
It wouldn't be too surprising to see Koh's earlier decision overturned — she and the appeals court have frequently disagreed on when to ban a product. Early in the case, the court decided she was wrong to let Samsung keep selling devices that arguably infringed on Apple's design. Later, though, it overturned her ban on the Galaxy Nexus, saying Apple hadn't proven its universal search was a major sales driver.
In this case, the court won't be deciding whether to temporarily ban something before deciding whether it's infringing; it will be making a call after a jury overwhelmingly decided that Samsung did, in fact, copy Apple. And though Samsung's lawyer denied it, the judges repeatedly asked whether she was arguing against bans for entire broad classes of lawsuits, which would back up Apple's claim of a "fundamental change" in the law.
Depending on how convincing the court finds Apple's argument, it could either completely uphold Koh's decision or throw it out — at which point either company could potentially appeal to the Supreme Court. Conversely, it could hand the issue back to Koh, giving her instructions to consider it further or issue specific injunctions. Closure has been slow in coming with this lawsuit, but today's hearing marked a step towards the end of at least one part of it.