In Google/Motorola lawsuit, Apple points a different district court to Judge Posner's ruling

The mainstream opinion was that Judge Posner dealt a blow to Apple with his dismissal of an Apple v. Motorola lawsuit in Chicago last month. In reality, it was a two-way lawsuit, and the strategic implications of the dismissal of Motorola's case (even though only a single patent was at issue) far outweigh the more tactical implications of what happened to Apple's four patents.

Apart from the fact that Apple recently scored a couple of wins that show it's still possible to win patent injunctions in the United States (post-eBay and even "post-Posner"), the way in which both parties, Apple and the Google subsidiary, have followed up on Judge Posner's decision in their filings with other judges speaks volumes:

• Google/Motorola essentially told the ITC: "Move on. Nothing to see here." (in response to a Microsoft filing that praised the FRAND part of Judge Posner's ruling)

• In stark contrast to that, Apple just made a filing with the United States District Court for the Western District of Wisconsin, where Apple brought a lawsuit last year to enforce Motorola's FRAND licensing obligations (as counterclaims to Motorola's ITC case), in which it presents three pieces of supplemental authority, and guess what the first one of them is? Judge Posner's Chicago ruling, and specifically its FRAND part.

  The Wisconsin-based court is currently looking at Apple's and Motorola's summary judgment motions.

  It also happens to be the court that gladly transferred this case to the Northern District of Illinois in late 2011 when Judge Posner volunteered to be assigned.

Apple's other two supplementary authorities are the Federal Trade Commission's statement to the ITC concerning import bans over FRAND-pledged standard-essential patents (meanwhile, the FTC is reportedly investigating Google's/Motorola's related conduct) and the FRAND part of a summary judgment ruling by Judge Lucy Koh. Last week, Judge Koh denied all 12 of Samsung's summary judgment motions, including one targeted at Apple's antitrust claims. One of Samsung's failed motions argued that Apple couldn't prove antitrust damages, but Judge Koh determined that Samsung's enforcement of FRAND-pledged patents resulted in litigation expenses to Apple, which she considered sufficient to state an antitrust claim (though not necessarily the only kind of damage inflicted on Apple).

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ITC investigates Apple's enforcement complaint against HTC -- but no new ban for now

A month ago, Apple filed an enforcement complaint against HTC with the ITC and asked for temporary emergency relief, i.e., an immediate ban of 29 new HTC devices.

There was no reasonable doubt that the ITC was going to investigate the enforcement complaint. It would have been shocking if Apple had not managed to meet the requirements for that. And indeed, the ITC just instituted an enforcement proceeding. The far more interesting question at this stage was whether Apple would also succeed with its request for temporary emergency relief. The ITC denied that one.

In my analysis of HTC's two related letters to the ITC (1, 2 and of an Apple letter, I supported two of HTC's three arguments but got the impression that the GMail client on HTC's Android-based devices continues to infringe the '647 "data tapping" patent.

The denial of temporary emergency action is great news for HTC, but doesn't represent a setback to Apple. Apple was being ambitious and aggressive by pushing for an immediate ban. But I'm sure Apple and its lawyers knew that this was not going to be easy. I wouldn't call it a long shot: given that HTC did not ask the ITC for an advisory opinion (it didn't have to, but it should have), the ITC might have taught HTC and everyone else a lesson by being more willing than otherwise to grant emergency relief. But the hurdle was reasonably high.

Apple knows that you have be patient in patent litigation. Some argue that Apple's patent enforcement against Android devices hasn't been successful since it started more than two years ago with the ITC complaint against HTC that resulted in the order Apple is now seeking to enforce. Still, Apple has made more headway, especially recently, than most observers realized. By now it has already won court rulings (not counting those that have been overturned) that found Android devices to infringe seven of its utility (technical) and two of its design patents. Apple is on the right track, even if not on the fast track, with this overall effort.

The ITC does not explain in detail why it denied emergency relief. It just says that Apple "has not demonstrated the propriety of temporary emergency action" by arguing on the basis of HTC's own representations in the original investigation, concluding that "the facts recited by Apple in its submission do not conclusively demonstrate that HTC's representations were inaccurate at the time that they were made". The ITC also denied Apple's request that HTC be required to post a 100% bond (i.e., a bond covering the total amount of its sales of the accused Android-based devices in the U.S. during the enforcement proceeding). There will be no bond since Apple didn't specify an amount other than 100%.

The next steps in the enforcement proceeding are now for the Chief Administrative Law Judge (Chief ALJ) to assign the case to an ALJ, and for the ALJ to set, no later than in mid-August, a target date for the enforcement proceeding. The target date for completion of the investigation will be four months after the ALJ's Enforcement Initial Determination (EID). For ITC enforcement proceedings, the usual timeline is less than a year. In this case, the enforcement proceeding will have to be handled by a different ALJ than the original case. In the original investigation, ALJ Charneski issued the initial determination in that one. He has since left the ITC to enter private practice. A new ALJ will now have to familiarize himself with the '647 patent and the related issues.

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Galaxy Tab 10.1 injunction remains in effect for now -- Federal Circuit to make next decision

At close of business on Monday, Judge Lucy Koh denied Samsung's motion to stay the preliminary injunction against the Galaxy Tab 10.1. Since Apple already posted its bond last week, there's no question that Samsung now has to respect the injunction.

Samsung's resellers in the United States are major wireless carriers and they may still have significant quantities of the Galaxy Tab 10.1 in their warehouses. But at some point they'll run out unless Samsung gets the injunction stayed (or overturned, but that will take much longer than it would take to win a stay). Samsung can still win a stay, but it now depends on the Court of Appeals for the Federal Circuit (CAFC). Until the CAFC decides on Samsung's request for a stay, the injunction is in effect.

It was clear that Judge Koh was not going to stay her injunction for the duration of the entire appellate proceeding. If Samsung could have realistically won any kind of a stay at all, it would have been a very limited stay until the Federal Circuit's decision on a stay pending appeal. Samsung won neither kind of stay.

Before I comment on Judge Koh's decision, I'd like to point out that a far more important motion to stay a preliminary injunction is still pending and will most likely be adjudicated today, Tuesday: Samsung also asked for a stay of the preliminary injunction against the Galaxy Nexus smartphone it had codeveloped with Google. The amount of the bond required in that case is 35 times higher than in the case of the Galaxy Tab 10.1. The Nexus is more popular and it's at an earlier stage of its lifecycle. Apple has not yet posted the $95.6 million bond for the Nexus injunction but will presumably do so as soon as Judge Koh has adjudicated the motion to stay, if not before. While Judge Koh's decision may ultimately be the same one -- a denial --, the issues are very case-specific.

In her denial of a stay concerning the Galaxy Tab 10.1, Judge Koh made reference to Samsung's own representations that it isn't seriously harmed by that particular injunction. Judge Koh obviously defended the rationale behind her original decision to grant the injunction. She wasn't going to say, "I'm sorry, I erred last week".

Judge Koh still believes that there was no need to reopen the record and admit new evidence concerning developments in the market. I'm still not 100% convinced that it was the right decision not to look at the latest state of the market. The order denying a stay makes reference to the eBay v. MercExchange litigation, in which a record that was three to four years old (at the time of remand) was considered outdated. That decision, however, did not say that there's a three-year minimum for a "significant time lapse". In a very rapidly-evolving market, six months can be a more significant time lapse than three to four years in another market. Even two technology-driven markets can vary greatly in terms of pace.

But the second part of the decision begins with a sentence that shows why it's going to be hard for Samsung to win a stay at the Federal Circuit:

"Even assuming that the Court should have reopened the record to consider evidence and arguments that were not a part of the Federal Circuit's Order, such new evidence is not likely to persuade the Federal Circuit that the preliminary injunction was improperly entered."

Even with new evidence Samsung would probably lose again -- that's also my opinion. In light of that fact, and the fact that Samsung itself has admitted that there is no serious harm, Samsung will have a hard time convincing the Federal Circuit to order a stay. I guess Samsung's best chance is that the Federal Circuit considers Judge Koh's equitable analysis insufficient in one way or another and stays the injunction as a matter of principle until there's a new equitable analysis (which is hardly going to work out in Samsung's favor, but anyway).

In the Nexus case, Samsung's arguments for a stay are even weaker with one exception: there is significant economic harm.

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Android devices have already been found to infringe 11 valid Apple and Microsoft patents

Patent litigation takes time. Most of the patents that large companies have asserted against Android haven't even come to judgment yet, and new assertions continue to be made. But the time has passed for any reasonable, unbiased person to deny that Android has a serious patent infringement problem that continues to exacerbate. Whether or not one subscribes to Steve Jobs's description of Android as a "stolen product", the plot is definitely thickening that Google and its hardware partners face IP issues.

Here's a list of the related findings by courts and the ITC (a trade agency with quasijudicial authority) according to which Android devices infringe no less than 11 different Apple and Microsoft patents that the same courts deemed valid, in chronological order of the decisions and excluding any rulings that were overturned on review or appeal:

1. EP2059868 on a "portable electronic device for photo management"

   I call this one the "photo gallery page-flipping" patent.

   The Rechtbank 's-Gravenhage (a court in the Dutch city of The Hague) deemed this patent valid and infringed in an August 24, 2011 decision granting Apple a preliminary injunction against certain Samsung smartphones. On March 1, 2012, the Munich I Regional Court granted Apple a permanent injunction over this patent against Motorola Mobility, now a wholly-owned Google subsidiary.

2. U.S. Patent No. 7,469,381 on "list scrolling and document translation, scaling, and rotation on a touch-screen display"

   Also known as the "overscroll bounce" or "rubber-banding" patent. I once called it "Apple's favorite make-Android-awkward patent".

   The United States District Court for the Northern District of California deemed this patent valid and infringed in a December 2, 2011 decision denying an Apple motion for a preliminary injunction against four Samsung devices. The denial was based on an insufficient showing of the nexus between the identified infringement and the alleged harm to Apple's business. Nevertheless, if the infringement and validity findings are upheld, Apple can still win an injunction after the upcoming trial or at a minimum seek damages for past and future infringement.

3. U.S. Design Patent No. D618,677 on an "electronic device"

   This is an iPhone-related design patent.

   In the aforementioned December 2, 2011 decision, the United States District Court for the Northern District of California deemed this design patent valid (with a narrowed scope) and infringed, calling it a "close question" and denying an injunction for balance-of-hardship reasons.

4. U.S. Patent No. 5,946,647 on a "system and method for performing an action on a structure in computer-generated data"

   I dubbed this one the "data tapping" patent, a term that has since been adopted by a number of journalists.

   The United States International Trade Commission (ITC) deemed this patent valid and infringed in a December 19, 2011 order of a U.S. import ban against HTC.

   I published the winning claim chart.

   In a June 29, 2012 order of a preliminary injunction against the Galaxy Nexus smartphone, the United States District Court for the Northern District of California deemed this patent valid and infringed, but denied an injunction on the basis of this patent for balance-of-hardships reasons.

   Motorola Mobility failed with summary judgment motions in a litigation in the Northern District of Illinois to prove this patent invalid or not infringed. The recent dismissal of that lawsuit was based on other reasons than the merit of Apple's infringement claims.

5. EP1964022 on "unlocking a device by performing gestures on an unlock image"

   This is the first slide-to-unlock patent.

   On February 16, 2012, the Munich I Regional Court granted Apple an injunction over this patent against Motorola Mobility.

6. U.S. Patent No. 6,370,566 on "generating meeting requests and group scheduling from a mobile device"

   On May 18, 2012, the ITC ordered a U.S. import ban against Motorola's Android-based devices that infringe this Microsoft patent.

7. EP1304891 on "communicating multi-part messages between cellular devices using a standardized interface"

   On May 24, 2012, the Munich I Regional Court granted Microsoft an injunction over this patent against Motorola's Android-based devices. This was the first Microsoft v. Google decision ever. It came down only days after Google completed its acquisition of Motorola Mobility. The ruling is already being enforced in Germany.

8. U.S. Design Patent No. D504,889 on an "electronic device"

   This is an iPad-related design patent.

   On June 27, 2012, the United States District Court for the Northern District of California granted Apple a preliminary injunction against the Galaxy Tab 10.1 following a partly-successful appeal to the Court of Appeals for the Federal Circuit.

   In the summer of 2011, the Düsseldorf Regional Court had granted Apple a preliminary injunction against the same product over the European equivalent, a so-called Community design, of this U.S. design patent. The appeals court, the Düsseldorf Higher Regional Court, later upheld the injunction but did so on the basis of German unfair competition law, not on the grounds of the asserted Community design.

9. U.S. Patent No. 8,086,604 on a "universal interface for retrieval of information in a computer system"

   This is a patent on Siri-style unified search.

   On June 29, 2012, the United States District Court for the Northern District of California granted Apple a preliminary injunction against the Samsung/Google Galaxy Nexus smartphone over this patent.

   Oddly, earlier that week Google placed a lot of emphasis on voice search at its Google I/O developer conference, where it announced that more than 1 million Android-based devices are now activated on a daily basis.

10. U.S. Patent No. 8,046,721 on "unlocking a device by performing gestures on an unlock image"

    This is the second slide-to-unlock patent.

    In its aforementioned Galaxy Nexus decision, the United States District Court for the Northern District of California deemed Samsung and Google to infringe on this patent, which it considered valid. The injunction was not based on this patent only for balance-of-hardship reasons. Apple may still win a permanent injunction or, at least, seek damages if the preliminary findings of infringement and validity are upheld.

11. U.S. Patent No. 8,074,172 on a "method, system, and graphical user interface for providing word recommendations"

    This is an autocorrect patent.

    In its aforementioned Galaxy Nexus decision, the United States District Court for the Northern District of California deemed Samsung and Google to infringe on this patent, which it considered valid. The injunction was not based on this patent only for balance-of-hardship reasons. Apple may still win a permanent injunction or, at least, seek damages if the preliminary findings of infringement and validity are upheld.

I said before that this list doesn't include decisions that were successfully appealed or otherwise overturned. For example, an ITC judge found HTC's Android-based devices to infringe a second Apple patent, the '263 "realtime API" patent. Judge Posner turned down Motorola's repeated, vehement attempts to have this patent declared invalid or not infringed. Also, an Australian judge had banned the Galaxy Tab 10.1 over a multipoint touchscreen hardware patent and a touchscreen heuristics software patent, but the injunction was lifted following an en banc rehearing.

A significant number of dismissals of patent infringement claims against Android have been appealed. Some of those appeals may very well succeed (appellate statistics suggest that this will happen in at least some cases). Also, most of Apple's German lawsuits have been stayed pending further analysis of their validity. Some of those patents may come back with a vengeance if proven valid.

The list above is limited to (nine) Apple and (two) Microsoft patents. I don't follow litigation by non-practicing entities anymore. As far as other major players are concerned, Oracle is certain to appeal its case against Google to the Federal Circuit, British Telecom is still suing Google, Nokia has recently asserted dozens of patents in the U.S. and Germany against HTC and Viewsonic, and BlackBerry maker Research in Motion (RIM) is in such dire straits that it's probably only a matter of time (the company appears to be in a serious disarray right now) until it also asserts some of its wireless email patents against Google and/or Google's hardware partners.

Finally I'll address a point that people often make, though it's mistaken based on the current set of facts no matter how often it is stated. I mean the claim that Android just has these problems because it's so popular. Well, Apple's iOS is similarly popular, and from an economic point of view a far more lucrative target. But so far, there's only one non-standard-essential patent that a court of law (in this case, the Mannheim Regional Court) has held Apple to infringe: Motorola's push notification patent. Most of the assertions that Android device makers bring against Apple are based on standard-essential patents, which has already resulted in several antitrust investigations (one in the U.S., three in the EU) and resulted in only one injunction (Mannheim again), the enforcement of which was almost immediately stopped by an appeals court. Also, a Dutch court denied an injunction even prior to looking at the technical details of the patents and later determined that Samsung is entitled to damages and FRAND royalties, which will likely amount to only a few hundred thousand dollars/euros given the court's position on Samsung's original royalty demands and the size of the Dutch market -- not even chump change for Apple.

Google (Motorola) has so far won only one ruling against Microsoft (in, guess where, Mannheim), which is based on two standard-essential patents and cannot be enforced anytime soon. And Google (Motorola) is probably going to lose its bid for an Xbox import ban at the ITC.

While patent litigation is a "you win some, you lose some" kind of game, there can be no doubt that Google and its partners are losing this one on the bottom line. Google's $12.5 billion acquisition of Motorola Mobility hasn't been a game-changer.

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Samsung appeals Galaxy Nexus ban and moves to stay the injunction

As expected, Samsung's lawyers worked hard to define their appellate strategy concerning the Galaxy Nexus injunction that was ordered on Friday afternoon Pacific Time. They just gave notice of their appeal to the Court of Appeals for the Federal Circuit and, like in the Galaxy Tab 10.1 case, filed a motion to stay the injunction for the entire duration of the appeal or at least until the Federal Circuit decides on a possible stay.

Here's the header of the notice of appeal (click to enlarge):

This is the text of the notice (dated June 30, 2012):

"NOTICE IS HEREBY GIVEN that Defendants Samsung Electronics Co. Ltd., Samsung Electronics America, Inc., and Samsung Telecommunications America, LLC appeal to the United States Court of Appeals for the Federal Circuit from the June 29, 2012 Order Granting Motion for Preliminary Injunction entered in the above-captioned action, and each and every part thereof."

In the following I'll quote the short versions of each of the appellate arguments. I'll change the capitalization to make the arguments easier to read) and comment on them item by item:

1. "The Court's finding that Apple will suffer irreparable harm was based on legally insufficient evidence that Samsung and Apple are competitors"

   That argument sounds preposterous if you look at the short version above. It's still pretty weak, but a bit less preposterous, if one reads the details of Samsung's argument. It comes down to saying that Apple cannot prove a loss of market share to Samsung.

2. "The Court's order is inconsistent with the Federal Circuit's directive that market share losses must be substantial"

   This is about raising the standard for the harm Apple must prove: Samsung says an injunction is only justified under Federal Circuit law if the market share loss to be suffered in the absence of the injunction is "substantial". Also, Samsung insists that this substantial loss must be attributable to the "infringing feature", not just the presence of the infringing product on the market.

3. "The Court's causation finding as to the '604 patent was erroneous, or at a minimum raises substantial questions"

   Judge Koh had based her theory of irreparable harm on the relevance of Siri to the market potential of Apple's products. Samsung now insists that Siri is "different feature than the unified search covered by the '604 patent". Here, Samsung wants the appeals court to define the scope of the '604 patent as narrowly as possible -- and that approach would actually be consistent with how Judge Posner approached Apple's patents, particularly the '263 "realtime API" patent, which he distinguished from the feature of video streaming.

4. "'People' and 'browser' are not infringing modules under the Court's construction"

   This appears to be a rehash of an argument Samsung already made in its opposition to Apple's motion for a preliminary injunction.

5. "The Court's infringement finding reads out the claim limitation of 'locating information in a network'"

   Same situation as in the previous case.

6. "The Court did not address Neal, which anticipates claim 6 under the court's construction"

   By "Neal", Samsung means a prior art reference: U.S. Patent No. 6,324,534 on a "sequential subset catalog search engine". This is also a rehash. It's clear now that Samsung's invalidity argument at the appellate stage is going to be centered around the Neal patent.

7. "There is at least a substantial issue regarding claim construction of the 'each' limitation"

   The question here is whether the search heuristics must be different between the various modules. It's a claim construction issue.

Judge Koh is not going to stay her injunction for the entire duration of the appeal, but she may do so until the Federal Circuit decides whether to stay.

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Samsung's public statements contradict its motion to stay the Galaxy Tab 10.1 injunction

It's very difficult for companies to speak out in public on pending litigation, which is why most companies decline to comment on the record or make only short and somewhat repetitive statements. As U.S. policemen routinely highlight, anything you say can and will be used against you in a court of law -- and that's what Samsung is just experiencing this weekend in a non-criminal case. Apple basically "Mirandized" its Korean rival through its opposition brief to the motion to stay the U.S. preliminary injunction against the Galaxy Tab 10.1.

In connection with the key question of the balance of hardships, Apple points the court to Samsung's public downplaying of the impact of the injunction on its business. According to a report in the San Francisco Daily Journal, a Samsung spokesman said in a prepared statement that the company "did not expect the ruling enjoining the sale of the Galaxy Tab 10.1 to have a 'significant impact on [Samsung's] business operations,' noting that the company has other Galaxy Tab products to sell.'" Apple also provided an English translation of an article on a Korean website according to which Samsung's "view is that in the U.S. this will not deal a big blow to sales of tablet PC's, since the successor model to the Galaxy Tab 10.1 is already on the market."

I understand that a hearing on Samsung's motion to stay will take place on Monday. Judge Koh wasn't going to say, less than a week after ordering the injunction, that she erred. She's not going to stay the injunction for the entire duration of the appeal. At the most she will stay it until the Federal Circuit has decided on whether or not to grant a stay. Either way, Samsung can't have it both ways and tell the general public that everything's fine despite the injunction while telling the courts that Apple should have to tolerate continued infringement.

Since it took so long for the Galaxy Tab 10.1 to be banned, the economic benefit of the injunction to Apple is very limited. The court is well aware of that fact. Tellingly, it required a 35 times higher bond for its more recent injunction against the Galaxy Nexus, a considerably newer product. And should Apple request and win a preliminary injunction against the Galaxy S III, the amount will likely be even greater.

Samsung's argument that the injunction was improperly-granted stands on four pillars.

1. Samsung presents new prior art references and argues that Apple's iPad design patent (D'889) is invalid.

   I previously said that there's the risk that maybe just one of the new pieces of evidence Samsung wants to present could be found to have been relevant and admissible. Having read Apple's opposition brief, I now doubt that Samsung will get to present new prior art at this stage of the litigation. It had a window of opportunity for this last year. Apple's brief explains why those "new" prior art references aren't really new. Apparently Samsung used them (or closely related material) already. For example, a prototype that Apple submitted to the USPTO was apparently also discussed in the appellate proceeding.

2. Samsung argues that even if the D'889 patent wasn't invalidated in its entirety by those prior art references, it would at least have to be interpreted more narrowly, which could result in a finding of non-infringement.

   Since I doubt that Samsung will get to relitigate the validity question, I also doubt that there would be a new analysis of the infringement issue. Also, both kinds of analysis fall outside the scope of what the Federal Circuit told the district court to do on remand.

3. Samsung says that Judge Koh should have performed a complete new equitable analysis.

   Even after reading Apple's opposition brief, I think Samsung may have a point here. The decision to order an injunction has important implications (even though Samsung itself downplayed them in public statements), and the Federal Circuit may find that a more thorough equitable analysis would have been warranted. After all, that new equitable analysis is the whole purpose for which the Federal Circuit remanded the case to Judge Koh without telling her directly to enter a preliminary injunction. One of the circuit judges, Judge O'Malley, wanted an immediate injunction, but she didn't get the support of a majority of judges. Judge Koh concurred with Judge O'Malley's thinking, but you can't rely on a minority opinion.

   If the Federal Circuit feels that Judge Koh's equitable analysis was insufficient, Samsung may win a stay, but it won't necessarily: the appeals court may feel that the injunction is more likely than not to be upheld anyway.

4. Samsung wanted that new equitable analysis to be based on partly new evidence concerning the evolution of the market since the original analysis that was performed in December 2011. In this regard, Samsung wanted new evidence to be produced and presented.

   There are different ways in which a reasonable person advocating the interest of justice could look at the implications of an extremely rapidly-evolving market like the tablet computer market. One can certainly say that the Federal Circuit found Judge Koh to have erred with her original thinking on the validity of the D'889 patent, and if she had not erred, the product would have been removed from the market six to seven months ago -- so Samsung can't complain, and Apple shouldn't have to accept further delay since it already lost a lot of precious time only due to Judge Koh's original error. But one can also argue that six months is a lot of time in this market, which was created (as far as a real mass market is concerned) just about two years ago with the launch of the original iPad, so a new analysis of the current market situation could be deemed necessary.

   There's no doubt that the market has changed. There's a lot of doubt, however, that the ways in which it has changed really have a bearing on the question of whether the Galaxy Tab 10.1 should be sold. Given that the harm to Samsung from removing the product from the market is a much lesser one at this stage, it would probably be an even easier decision now to ban the product than it would have been back in December.

   If the appeals court feels that Judge Koh should have taken a closer look at the ways in which the market has evolved, that still doesn't necessarily mean a stay.

Samsung really isn't worried about the direct impact of the injunction. It's more of a problem for Samsung's reputation and for Samsung's chances at the trial that is scheduled to start toward the end of this month. If the final judgment is the same as far as validity, infringement and the harm to Apple's business are concerned, this can get quite costly even for a company the size of Samsung.

Apple will go into the trial with a coherent story of how Samsung imitated everything from packaging to exterior product design to the user interface and the inner workings of the operating system.

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Judge Koh deals next blow to Samsung, denies all 12 of its summary judgment requests

On Saturday, Judge Koh denied the entirety of a comprehensive summary judgment motion that Samsung brought in May. Samsung attacked the validity of each and every one of the intellectual property rights asserted by Apple at this stage as well as Apple's FRAND-related antitrust claims, and failed all the way. It is very unusual for such a multi-pronged motion by a major industry player to fail entirely. This presumably concludes a dreadful week for Samsung in the Northern District of California, which previously involved a preliminary injunction against the Galaxy Tab 10.1, a far more important preliminary injunction against the Galaxy Nexus, the dismissal of one of Samsung's patent infringement claims further to Apple's summary judgment motion, and a clear Apple victory over expert reports.

GigaOM's Tom Krazit nailed it (on the two injunctions):

"Even coming off the high of Google I/O, these developments are not good for Google and Android."

If things go on like this week, Samsung is going to suffer a severe case of NorthernDistrictOfCaliforniaphobia. But this does not in any way call into question the work of Judge Koh, who denied Apple's first motion for a preliminary injunction last year (a decision that the Federal Circuit later reversed in part, paving the way for the Galaxy Tab 10.1 ban). As far as design issues are concerned, Samsung has no one to blame but itself, and on the software side, Google has most if not all of the responsibility.

With respect to the wholesale failure of Samsung's multi-part motion for summary judgment, Apple's lawyers clearly made a smart tactical choice. They could have tried to attack all seven Samsung patents-in-suit. Instead, they decided to focus on only three of them, and succeeded in one of those cases as I mentioned above. Samsung, by contrast, carpet-bombed all of Apple's claims and got no result. However, this is just not a matter of tactics but also speaks to the merits of the parties' claims.

If one wanted to look for the good among the bad here for Samsung, the fact that summary judgment narrowed the totality of claims at issue in this litigation by only one Samsung patent means that Apple may have to withdraw, with the right to reassert in a subsequent litigation, some of its claims. Judge Koh has made it clear that there are limits as to the hours of speaking time the parties get at trial, and on the number of exhibits. Samsung continues to argue that the case isn't trial-ready until Apple winnows its claims to a greater extent. That debate will continue. But Apple now has even more tactical options than before. For example, it might decide to enforce its Siri-like patent against the S III right away (by moving for a preliminary injunction) even though the summer trial could (but need not) be delayed.

I think the litigation has reached a point at which Judge Koh realizes perfectly well that Samsung and its "partner in crime" Google are infringers (whose counterclaims are dubious at least), and that the full force of the law must be brought to bear. Look at the following sentence from the Galaxy Tab 10.1 ruling:

"Although Samsung has a right to compete, it does not have a right to compete unfairly, by flooding the market with infringing products."

Samsung can still defeat any of these claims at trial. Summary judgment is the fastest but not the only way to defend oneself against (or prevail on) a claim. But besides the fact that successful summary judgment requests, such as Apple's (with respect to one Samsung patent), are dispositive of issues, all of these interim decisions, including the aforementioned one on expert reports, also provide an indication as to where things are going. For example, the positions Judge Koh took on Samsung's numerous invalidity arguments may enable Apple to succeed on motions in limine (last-minute motions to disallow certain arguments at trial). Analyzing all these intermediate decision is like looking at the first or second derivative of a graph -- and it doesn't look pretty for Samsung and Google.

Another such derivative is the ability of parties to get each other's expert witnesses excluded (in whole or in part). Judge Koh also issued a ruling on Apple's and Samsung's motions in this regard. While Samsung had used very aggressive rhetoric, accusing Apple's experts of "slavish adoration of their client" and suggesting (in other words) that they had become absorbed by a reality distortion field, Apple's attack on Samsung's experts was lower-key -- but no less successful. Either party brought eight anti-expert motions, and in purely numerical terms, they got the same outcome: five denials, two grants, and one mixed result ("granted in part, denied in part") each.

At least Samsung didn't lose this battle, too.

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