Apple's Motion for a Preliminary Injunction, Court's Denial, and Federal Circuit Appellate Opinion: Irreparable Harm

 As with its validity argument, Apple grouped all the patents together while discussing irreparable harm. Its motion for a preliminary injunction had one large section on the irreparable harm prong, but it discussed irreparable harm very generally. Thus, Apple did not have irreparable harm arguments that were specific to the D’087 patent. Rather, Apple applied the same loss of consumer goodwill and loss of market share arguments to D’087 as it did for D’677. Please see the irreparable harm of D’677 patent for an in depth analysis of Apple’s irreparable harm arguments.

Again, similar to its rejection of irreparable harm in the case of the D’677 patent, the district court ultimately rejected Apple’s D’087 irreparable harm argument on the basis of Apple’s failure to establish a causal nexus between the alleged D’087 infringement and the alleged harms.

The Federal Circuit also viewed the D’087 irreparable harm analysis as being “identical” to the D’677 irreparable harm analysis (Federal Circuit Opinion at 23). Since the Federal Circuit affirmed the court’s analyses of no irreparable harm from D’677 infringement, the no irreparable harm finding would also apply to the D’087. Consequently, the Federal Circuit also affirmed the lower court’s decision to deny an injunction against the two accused cell phones based on the D’087 patent.

Please see the previous post Apple's Motion for a Preliminary Injunction, Court's Denial, and Federal Circuit Appellate Opinion: Reasonable Likelihood of Success for a more in depth analysis of the court’s opinion.

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Apple's Motion for a Preliminary Injunction, Court's Denial, and Federal Circuit Appellate Opinion: Reasonable Likelihood of Success

District Court’s Finding re Substantial Questions about D’087’s Validity

The district court found that Samsung had raised substantial questions about the invalidity of the D’087 patent. As a consequence, the court held that Apple did not prove it was likely to succeed at trial against Samsung’s validity challenge. Since Apple could not prove that it would be likely to succeed against a validity challenge for D’087, the court could not use alleged infringement of D’087 as the grounds for granting an injunction.
Samsung had presented the ‘638 patent as a prior art reference which anticipated the D’087 patent and made it invalid for being non-novel. The district court agreed. Presumably Samsung submitted visual side-by-side comparisons of both. The district court held that an ordinary observer would be likely to consider both patents to have substantially the same overall appearances. Though there were some differences between the two, such differences could be minor (and/or) obvious to a person of ordinary skill in the art.
The court’s discussion of the D’087’s likely validity is very brief. It is difficult to tell exactly why the district court felt so convinced by Samsung’s argument. Again, presumably, Samsung’s visual comparisons must have been very convincing. Apple’s motion itself did not discuss the ‘638 prior art reference, but Apple must have contested Samsung’s argument in a later reply or declaration (most of which were sealed).
The Federal Circuit did object to the district court’s analysis of the D’087 validity. It said that the district court had erred in finding that the ‘638 patent was substantially similar (and thus anticipated the D’087 patent). The error of the district court was in improperly defining the scope of the patent. The lower court had been too restrictive in defining what views of the design were being claimed in the D’087 patent. This seems to indicate that the Federal Circuit is far more generous in defining scope of claims and what is being protected. However, despite its disagreement, the Federal Circuit affirmed denial of an injunction on D’087 grounds due to the fact that it affirmed the lower court’s finding of no irreparable harm (discussed in the next blog).
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Apple's motion for a preliminaryinjuction, court's denial and federal circuit appellate opinion: Reasonable likelihood of Success

Apple’s Argument re Validity of D’087 Patent:

In Apple’s motion for a preliminary injunction, it grouped together the D’087, D’67 and D’889 patents in one section to discuss the likely validity of all three patents. Its arguments for validity were essentially the same for all three patents.

As you might remember, the validity section was fairly sparse, especially in terms of arguments specific to the D’087 patent. Apple emphasized that none of Samsung’s prior art posed a serious challenge to the novelty and non-obviousness of its patents. Moreover, Apple referred to media reports and consumer reviews of the iPhone to reinforce the fact that its design patents were new and non-obvious. Specifically with regards to the D’087 patent, Apple argued the patent had been found valid and enforceable by another court in a prior patent infringement suit. Accordingly, the other court findings provided additional support for its argument of likely validity.

The next blog will discuss the district court’s rejection of Apple’s argument. 

Apple's Motion for Preliminary Injunction, Court's Denial, and Federal Circuit Appellate Opinion: Reasonable Likelihood of Success

Apple’s Argument re Infringement of D’087 Patent, and the District Court’s Finding:
Using visual images to create a side-by-side comparison of the D’087 patent and Samsungs’ two accused phones (Galaxy S 4G and Infuse 4G), Apple argued that the phones had substantially similar designs as its D’087 patent. Like the D’677 patent, the D’087 patent involved the distinctive facial appearance of Apple’s instantly recognized iPhone (Apple’s Motion for a Preliminary Injunction at 11). Apple’s motion contained visual images of the front faces of both Samsung’s accused phones and Apple’s iphone. Apple compared the visual images to each other to argue that the Samsung phones copied the D’087 patented design. As such, the Samsung phones had substantially similar designs to the D’087 design, which meant that the two accused phones infringed the D’087 patent.
Because the district court decided that Apple would not be likely to prove the validity of D’087, the court did not address the question of D’087 infringement. Although, it did refer to visual images of the D’087 patent while discussing the likely infringement of the D’677 patent. The district court stated, “The D’087 patent is included in the visual comparison for reference only and forms no basis for the infringement analysis in light of the finding that Samsung has raised ‘substantial questions’ regarding the validity of the D’087 patent” (Court Order Denying Apple’s Motion, footnotes 18 and 19 at 25-26).
Because of these questions about the patent’s invalidity, the court denied Apple’s motion for an injunction based on the D’087 patent and didn’t discuss infringement. When the Federal Circuit heard this matter on appeal, it did not discuss the issue of infringement as it affirmed the court’s ultimate denial of the injunction request.
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