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No. 2013-1129
United States Court of Appealsfor the
Federal Circuit
APPLE INC.,
Plaintiff-Appellant,
v.
SAMSUNG ELECTRONICS CO., LTD., SAMSUNG ELECTRONICS
AMERICA, INC., SAMSUNG TELECOMMUNICATIONS AMERICA, LLC,
Defendants-Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA IN CASE NO. 11-CV-1846,
LUCY H. KOH, U.S. DISTRICT JUDGE
BRIEF FORAMICI CURIAEGOOGLE, INC.,
HTC CORPORATION, HTC AMERICA, INC., RACKABLE
HOSTING, INC., RED HAT, INC. AND SAP AMERICA, INC.IN SUPPORT OF APPELLEES
WHITE &CASE LLP
1155 Avenue of the Americas
New York, New York 10036(212) 819-8200
WHITE &CASE LLP3000 El Camino Real
5 Palo Alto Square, 9th FloorPalo Alto, California 94306(650) 213-0300
Attorneys for Amici Curiae
May 6, 2013
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CERTIFICATE OF INTEREST
Counsel forAmici certifies the following:
1. The full name of every party or amicus represented by the
undersigned counsel in the above-captioned appeal is Google Inc., HTC
Corporation, HTC America, Inc., Rackspace Hosting, Inc., Red Hat, Inc. and SAP
America, Inc.
2. The name of the real party in interest (if the party named in the
caption is not the real party in interest) represented by me is: N/A
3. All parent corporations and any publicly held companies that own 10
percent or more of the stock of any party or amicus curiae represented by me are:
HTC America, Inc. is a wholly owned subsidiary of HTCCorporation.
Red Hat, Inc. has no parent corporation, and the only publicly heldcompanies that own 10 percent or more of its stock are T. Rowe Price
and Fidelity Management and Research Company.
SAP America, Inc. is a privately held corporation and is a whollyowned subsidiary of SAP AG.
4. The names of all law firms and the partners or associates that
appeared for the parties or amici now represented by me in the trial court or are
expected to appear in this court are:
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Kevin X. McGann Warren S. Heit
Christopher J. Glancy WHITE & CASE LLP
WHITE & CASE LLP 3000 El Camino Real
1155 Avenue of the Americas 5 Palo Alto Square, 9th
Floor
New York, New York 10036 Palo Alto, California 94306
Telephone: (212) 819-8200 Telephone: (650) 213-0300
Facsimile: (212) 354-8113 Facsimile: (650) 213-8158
Dated: May 6, 2013 /s/ Christopher J. Glancy
Christopher J. Glancy
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TABLE OF CONTENTS
INTEREST OFAMICI CURIAE........................................................................................... 1ARGUMENT .............................................................................................................................. 4I. THIS COURTS CAUSAL NEXUS REQUIREMENT IS
CONSISTENT WITH eBAY....................................................................................... 4II. UNLESS INFRINGEMENT ITSELF CAUSED A SUBSTANTIAL
INJURY, THE BALANCE OF THE EQUITIES AND THE PUBLIC
INTEREST WEIGH HEAVILY AGAINST INJUNCTIVE RELIEF IN
THIS CONTEXT ........................................................................................................... 9A. By Isolating The Injury Attributable To Infringement, The Nexus
Requirement Establishes The Baseline Against Which OtherEquitable Factors Are Considered. .............................................................. 10
B. The Balance Of The Equities And The Public Interest GenerallyPreclude The Issuance Of Injunctions Against Complex Products
Based Only On The Products Inclusion Of Relatively Minor
Infringing Features. ......................................................................................... 11CONCLUSION ........................................................................................................................ 16
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TABLE OF AUTHORITIES
CASES
Apple Inc. v. Samsung Elecs. Co., 678 F.3d 1314(Fed Cir. 2012) (Apple I) ...... 4, 5
Apple Inc. v. Samsung Elecs. Co.695 F.3d 1370 (Fed. Cir. 2012) (Apple II) .................................................. 4, 5, 7
Automatic Radio Mfg. Co. v. Ford Motor Co., 272 F. Supp. 744 (D. Mass. 1967),
affd, 390 F.2d 113 (1st Cir. 1968) ......................................................................... 5
Diversified Mortg. Investors v. U.S. Life Title Ins. Co. of N.Y., 544 F.2d 571 (2d
Cir. 1976) ................................................................................................................ 5
eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388 (2006) ................................. passim
Garretson v. Clark, 111 U.S. 120 (1884) .................................................................... 7
Georgia-Pacific Corp. v. U.S. Plywood Corp.
318 F. Supp. 1116 (S.D.N.Y. 1970) ....................................................................... 6
Grain Processing Corp. v. Am. Maize-Products Co., 185 F.3d 1341 (Fed. Cir.
1999) ....................................................................................................................... 6
Hecht Co. v. Bowles, 321 U.S. 321 (1944) ................................................................ 12
Hutchinson v. Am. Oil Co., 221 F. Supp. 728 (E.D. Pa. 1963) ................................... 5
Ill. Tool Works Inc. v. Indep. Ink, Inc., 547 U.S. 28 (2006) ...................................... 11
King Instruments Corp. v. Perego, 65 F.3d 941 (Fed. Cir. 1995) ............................... 6
MercExchange L.L.C. v. eBay, Inc.,401 F.3d 1323 (Fed. Cir. 2005) ......................... 9
Mostaghim v. Fashion Inst. of Tech., Civ No. 01-8090, 2001 WL 1537545
(S.D.N.Y. Dec. 3, 2001) ......................................................................................... 5
Richardson v. Suzuki Motor Co., 868 F.2d 1226 (Fed. Cir. 1989) .............................. 9
Robert Bosch LLC v. Pylon Mfg. Corp., 659 F.3d 1142 (Fed. Cir. 2011) ................... 9
Salazar v. Buono, 559 U.S. 700, 130 S. Ct. 1803 (2010) .......................................... 10
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Stormans, Inc. v. Selecky, 586 F.3d 1109 (9th Cir. 2009) ......................................... 14
Weinberger v. Romero-Barcelo, 456 U.S. 305 (1982) .............................................. 10
Winter v. NRDC, 555 U.S. 7 (2008) .......................................................................... 10
STATUTES AND RULES
U.S. Const., Article I, 8 ............................................................................................. 7
MISCELLANEOUS
Carl Shapiro,Patent Reform: Aligning Reward and Contribution, 8 Natl Bureau
of Econ. Research 111 (2007)............................................................................... 13
FTC, The Evolving IP Marketplace: Aligning Patent Notice and Remedies with
Competition, 231 (2011) ....................................................................................... 11
Mark A. Lemley & Carl Shapiro,Patent Holdup and Royalty Stacking, 85 Tex. L.
Rev. 1991 (2007) ................................................................................ 12, 13, 14, 15
Mark A. Lemley & Philip J. Weiser, Should Property or Liability Rules Govern
Information?, 85 Tex. L. Rev. 783 (2007) ........................................................... 14
Thomas F. Cotter,Patent Holdup, Patent Remedies, and Antitrust Responses, 34 J.
Corp. L. 1151 (2009) ............................................................................................ 14
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Amici curiae and non-parties Google Inc. (Google), HTC Corporation and
HTC America, Inc. (collectively HTC), Rackspace Hosting, Inc. (Rackspace),
Red Hat, Inc. (Red Hat), and SAP America, Inc. (SAP) (collectively Amici)
respectfully submit this brief in support of Defendants-Appellees Samsung
Electronics Co., Ltd., Samsung Electronics America, Inc., and Samsung
Telecommunications America, LLC (collectively Samsung) and in support of the
District Courts December 17, 2012 order denying Plaintiff-Appellant Apple Inc.s
(Apple) motion for a permanent injunction (the Order).
INTEREST OFAMICI CURIAE1
Amicus Google is the developer of Android, a platform for mobile devices
such as smartphones and tablet computers, and particular versions of Android
running on the Samsung products that are the subject of the Order. Google also
develops and provides Internet-related services and products, including search,
cloud computing, software and online advertising technologies.
Amicus HTC is a leading developer and manufacturer of smartphones and
tablets based on the Android and Windows Phone platforms. With Google, HTC
1Pursuant to Fed. R. App. P. 29(c), Google, HTC, Rackspace, Red Hat, and SAP
state that no counsel for a party authored this brief, in whole or in part, and that no
person or entity, other thanAmici or counsel forAmici, made any monetary
contribution to the preparation or submission of the brief.
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developed the worlds first Android smartphone. HTC was also the first company
to launch 3G, 4G WiMAX, 4G HSPA+ and 4G LTE smartphones in the world.
Amicus Rackspace is a service leader in cloud computing, delivering
enterprise-level hosting services to businesses of all sizes and kinds around the
world. Rackspace provides server space and internet connectivity that allows
businesses to store and retrieve data and to implement their applications and
operating systems in a stable, secure environment.
Amicus Red Hat is the worlds leading provider of open-source software and
related services to enterprise customers. Its supply chain involves hundreds of
open source projects, which work independently of each other and collaborate over
the Internet. Its software products are used by Wall Street investment firms,
hundreds of Fortune 500 companies, and the United States government.
Amicus SAP is a leading technology company focused on developing
innovative software and computer-based business solutions. It conducts significant
research and development and invests heavily in commercializing innovative
technologies.
Amici are all innovative technology companies that develop and provide a
variety of products and services that, like the mobile devices at issue in this appeal,
incorporate a wide array of features. As such, an issue presented in this appeal
whether a court may enjoin the sale of innovative and technologically complex
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products based on the incorporation of trivial patented features without evidence
that the accused features drive sales of the products is a matter of great concern
to amici.
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ARGUMENT
I. THIS COURTS CAUSAL NEXUS REQUIREMENT ISCONSISTENT WITHEBAY
Though injunctions were once issued as a matter of course in patent cases,
the Supreme Court of the United States in eBay held that broad classifications
and categorical rule[s] are inappropriate in determining whether to grant an
injunction. Rather, a court must apply the traditional equitable factors:
A plaintiff must demonstrate: (1) that it has suffered an
irreparable injury; (2) that remedies available at law, such as
monetary damages, are inadequate to compensate for that
injury; (3) that, considering the balance of hardships between
the plaintiff and defendant, a remedy in equity is warranted;
and (4) that the public interest would not be disserved by a
permanent injunction.
eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006). Thus, there is no
longer a presumption of irreparable harm in favor of a prevailing patentee.
Although the patentees right to exclude must be considered in determining
whether an injunction should issue, that right is not absolute; interference with that
right, standing alone, does not constitute irreparable harm. The patentee must
show that it will suffer an injury that is not only irreparable, but that sufficiently
relate[s] to the infringement. Apple Inc. v. Samsung Elecs. Co., 695 F.3d 1370,
1374 (Fed. Cir. 2012) (Apple II);see also Apple Inc. v. Samsung Elecs. Co., 678
F.3d 1314, 1324(Fed Cir. 2012) (Apple I). As this Court has twice explained:
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To show irreparable harm, it is necessary to show that the
infringement caused harm in the first place. Sales lost to an
infringing product cannot irreparably harm a patentee if
consumers buy that product for reasons other than the patented
feature. If the patented feature does not drive the demand for
the product, sales would be lost even if the offending feature
were absent from the accused product. Thus, a likelihood of
irreparable harm cannot be shown if sales would be lost
regardless of the infringing conduct.
Apple II, 695 F.3d at 1374 (quotingApple I, 678 F.3d at 1324).
This causal nexus requirement is nothing new in injunction analyses. It is
well established in non-patent cases that irreparable harm must be causally related
to the conduct at issue. See, e.g., Diversified Mortg. Investors v. U.S. Life Title Ins.
Co. of N.Y., 544 F.2d 571, 576 (2d Cir. 1976) (the court was hard pressed to find
any irreparable harm which is causally related to defendants negligence);
Mostaghim v. Fashion Inst. of Tech., Civ No. 01-8090, 2001 WL 1537545, at *3
(S.D.N.Y. Dec. 3, 2001) (The only potential irreparable harm that [plaintiff] has
stated . . . has no causal nexus with the alleged [] violation.);Automatic Radio
Mfg. Co. v. Ford Motor Co., 272 F. Supp. 744, 748-49 (D. Mass. 1967), affd, 390
F.2d 113 (1st Cir. 1968) (denying preliminary injunction because, inter alia, the
plaintiffs failed to establish a causal relationship between the [allegedly illegal tie-
in] and plaintiffs declining sales);Hutchinson v. Am. Oil Co., 221 F. Supp. 728,
730-31 (E.D. Pa. 1963) (plaintiffs failed to establish any causal connection
between the alleged antitrust violation and irreparable harm).
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Moreover, courts have long considered causation in determining remedies
for patent infringement. In the context of lost profits, it is well established that
the patent owner must show causation in fact, establishing that but for the
infringement, he would have made additional profits. Grain Processing Corp. v.
Am. Maize-Products Co., 185 F.3d 1341, 1350-51 (Fed. Cir. 1999) (quoting King
Instruments Corp. v. Perego, 65 F.3d 941, 952 (Fed. Cir. 1995)). Where the
patented feature is but one component of a multi-feature product, this Court has
stressed the importance of establishing consumer demand for the patented feature,
not simply demand for the product as a whole. In Grain Processing, the Court
affirmed the district courts ruling that the plaintiff was not entitled to lost profits,
where the district court concluded there is no economically significant demand for
a product having all of the [claimed] attributes, the claimed features are
irrelevant to consumers, and the plaintiff did not have a patent on the
economically significant product as a whole. Grain Processing,185 F.3d at
1348, 1354 (citation and quotation marks omitted).
Similarly, in the context of determining a reasonable royalty, courts have
long required apportionment of damages attributable to the patented feature. See
Georgia-Pacific Corp. v. U.S. Plywood Corp., 318 F. Supp. 1116, 1120 (S.D.N.Y.
1970) (listing as a factor in reasonable royalty analysis the portion of the
realizable profit that should be credited to the invention as distinguished from non-
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patented elements, the manufacturing process, business risks, or significant
features or improvements added by the infringer);see also Garretson v. Clark,
111 U.S. 120, 121 (1884) (The patentee . . . must in every case give evidence
tending to separate or apportion the defendants profits and the patentees damages
between the patented feature and the unpatented features . . . .).
Thus, aftereBay mandated application of the traditional equitable factors in
patent cases, this Court applied established legal principles and correctly ruled that
irreparable harm and a causal nexus are inextricably related.
In other words, it may very well be that the accused product
would sell almost as well without incorporating the patented
feature. And in that case, even if the competitive injury that
results from selling the accused device is substantial, the harm
that flows from the alleged infringement (the only harm that
should count) is not. Thus, the causal nexus inquiry is indeed
part of the irreparable harm calculus: it informs whether the
patentees allegations of irreparable harm are pertinent to the
injunctive relief analysis, or whether the patentee seeks to
leverage its patent for competitive gain beyond that which the
inventive contribution and value of the patent warrant.
Apple II, 695 F.3d at 1374-75. Where, as here, a plaintiff alleges irreparable harm
arising from lost sales, an injunction cannot issue unless the patentee demonstrates
a causal nexus between the claimed invention and irreparable harm; otherwise, the
remedy would go well beyond the patentees contribution to the useful arts. See
U.S. Const., art. I, 8.
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The question for this Court, therefore, is whether sales of infringing products
would be any less absent the patented features. As the district court correctly held,
when the patentee alleges irreparable harm based on lost sales, a sufficiently strong
causal nexus exists only when the evidence shows that consumers buy a complex,
multi-featured product specifically because it contains the patented feature.
Moreover, such demand must be causally linked to thepatentedinvention.
Evidence of mere consumer preference for the type of feature covered by the patent
is insufficient, especially when non-infringing alternatives are readily available and
there is no evidence that consumers prefer the patented feature over the non-
infringing alternative.
Apple asks this Court to ignore the causal nexus requirement and, instead,
adopt a rule whereby irreparable harm is presumed based solely on the interference
with a patentees right to exclude. (Apple Br. at 52.) eBay rejected such
categorical approaches, explaining that the right to exclude is not absolute, but
rather is subject to traditional principles of equity. eBay,547 U.S. at 392. In his
concurrence, Justice Kennedy similarly rejected the argument that the right to
exclude, by itself, automatically justifies an injunction. eBay,547 U.S. at 396
(Kennedy, J., concurring) (Both the terms of the Patent Act and the traditional
view of injunctive relief accept that the existence of a right to exclude does not
dictate the remedy for a violation of that right.).
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Indeed, eBay expressly rejected not only this Courts general rule that a
permanent injunction will issue upon a finding of infringement, but also the
premise on which that rule was based: that the right to exclude recognized in a
patent is but the essence of the concept of property. See MercExchange L.L.C. v.
eBay, Inc.,401 F.3d 1323, 1338 (Fed. Cir. 2005) (citingRichardson v. Suzuki
Motor Co., 868 F.2d 1226, 1246-47 (Fed. Cir. 1989)). AftereBay,the premise is
no longer dispositive and the presumption no longer exists. See Robert Bosch LLC
v. Pylon Mfg. Corp., 659 F.3d 1142, 1149 (Fed. Cir. 2011) (holding that eBay
jettisoned the presumption of irreparable harm as it applies to determining the
appropriateness of injunctive relief). Given the significance of a finding of
irreparable harm in the injunction analysis, if this Court were to adopt Apples
proposed rule, we would return to the pre-eBay days when injunctive relief
automatically followed a finding of infringement.II. UNLESS INFRINGEMENT ITSELF CAUSED A SUBSTANTIAL
INJURY, THE BALANCE OF THE EQUITIES AND THE PUBLIC
INTEREST WEIGH HEAVILY AGAINST INJUNCTIVE RELIEF IN
THIS CONTEXT
Even if a competitors infringement caused some irreparable injury, other
equitable factors weigh heavily against injunctive relief when additional, non-
infringing features drive demand for the accused product as a whole.
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A. By Isolating The Injury Attributable To Infringement,The Nexus Requirement Establishes The Baseline Against
Which Other Equitable Factors Are Considered.
As eBay stressed, no one factor necessarily justifies injunctive relief in
isolation; courts must consider all four traditional factors together. eBay, 547 U.S.
at 391. And if other factors outweigh the injurious consequences of
infringement, injunctive relief is unwarranted. See Weinberger v. Romero-Barcelo,
456 U.S. 305, 311 (1982) (citation and quotation marks omitted).
Two of the other equitable factorsthe balance of the equities and the
public interestdepend in part on the extent to which infringement itself, as
opposed to an accused product as a whole, injured the patentee. Injunctive relief
remedies only the wrong or injury that has been established, i.e., the harm caused
by infringement. Salazar v. Buono, 559 U.S. 700, 130 S. Ct. 1803, 1818 (2010)
(plurality op.). Harms that are not attributable to the specific legal violation at
issue are irrelevant to the analysis. Thus, for example, the Supreme Court held that
even if a defendants failure to prepare an environmental impact statement before
engaging in sonar training warranted an injunction tailored to the preparation of
such a statement, it did not justify an injunction against the training itself. Winter
v. NRDC, 555 U.S. 7, 32-33 (2008).
Isolating the specific harm attributable to infringement is therefore an
essential predicate to reasoned balancing of the competing interests. Courts cannot
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simply assume that a patent holders alleged irreparable harm (here, loss of market
share) stems from infringement instead of from lawful competition based on a
products non-infringing features. The Patent Office tests applications for novelty,
not quality or commercial value. Products with patented features often compete
against non-infringing alternatives that are just as good, if not better, and a
products mere inclusion of a patented feature provides no guarantee of market
success. See Ill. Tool Works Inc. v. Indep. Ink, Inc., 547 U.S. 28, 45-46 (2006)
(holding that patents do not necessarily confer market power).
B. The Balance Of The Equities And The Public InterestGenerally Preclude The Issuance Of Injunctions Against
Complex Products Based Only On The Products Inclusion
Of Relatively Minor Infringing Features.
As Apple concedes, individual features in complex products will almost
never drive consumer demand by themselves. (Apple Br. 55-56.) For that reason,
the balance of hardships tend[s] to tip toward the infringer when the invention is a
component of a downstream product accounting for a relatively small portion of
the products value . . . . FTC, The Evolving IP Marketplace: Aligning Patent
Notice and Remedies with Competition, 231 (2011). On one hand, denial of
injunctive relief would not substantially impair the patentees legitimate interests.
The patentee can recover damages to compensate for any ongoing infringement.
Further, the patentee suffers little, if any, competitive injury from infringement
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because its loss of market share is attributable to other factors, such as the
superiority and greater ingenuity of competing products.
On the other hand, awarding injunctive relief in this circumstance would
severely penalize defendants. The owner of a trivial patent has no reasonable
expectation of more than trivial compensation. But an injunction, and the
potentially serious sanctions arising from its violation, can be employed as a
bargaining tool to charge exorbitant fees to companies that seek to buy licenses to
practice the patent. eBay, 547 U.S. at 396 (Kennedy, J., concurring). Such
holdup power would permit patent holders to capture a greater amount of money
than their invention is worth. Resulting settlements or licenses would reflect not
the value of the invention, but instead the ability to disrupt the licensees business.
That is not a legitimate part of the value of a patent; it is a windfall to the patent
owner that comes at the expense not of unscrupulous copyists but of legitimate
companies doing their own R&D. Mark A. Lemley & Carl Shapiro,Patent
Holdup and Royalty Stacking, 85 Tex. L. Rev. 1991, 2009 (2007). Injunctive relief
is meant to deter, not to punish. Hecht Co. v. Bowles, 321 U.S. 321, 329 (1944).
Thus, where the patent covers a trivial feature of a complex device, the
balance of the equities is not close. From a patentees perspective, an injunction
would amount to winning the lottery based on the happenstance (from the
patentees perspective) that someone else develops and markets an accused product
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that succeeds for other reasons, such as the defendants own innovations. From a
defendants perspective, however, this is no lottery; it is highway robbery. In a
lottery, everyone pays the same amount for a ticket and the lottery pays winners
selected at random. But here, the least deserving claim the prize and confiscate it
from the most deserving: The holders of trivial patents with little or no value to
the public hold up companies that have successfully developed and marketed
important, innovative products based on the products non-infringing features.
Such a result turns the patent systems fundamental objectiveto encourage and
reward innovationon its head.
Overcompensation through holdup power is not simply inequitable as
between the parties; it can reduce efficiency and stifle innovation, contrary to the
public interest. Carl Shapiro,Patent Reform: Aligning Reward and Contribution,
8 Natl Bureau of Econ. Research 111, 113 (2007). Holdup power discourages
innovation because the victims of holdup are frequently firms that have made
significant R&D investments themselves. Lemley & Shapiro, 85 Tex. L. Rev. at
2010. The excess royalties do little to stimulate innovation by patent holders but
instead act as a tax on new products incorporating the patented technology,
thereby impeding rather than promoting innovation. Id. at 1993.
The consequences would be especially acute in the information technology
sector, where a complex product can easily be covered by dozens or even
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hundreds of different patents relating to small components or features of the
product. Id. at 1992. By its nature, patent holdup impose[s] significant social
welfare costs by restricting otherwise lawful conduct inhering in a products non-
infringing features. Mark A. Lemley & Philip J. Weiser, Should Property or
Liability Rules Govern Information?, 85 Tex. L. Rev. 783, 787 (2007). That may
inhibit investment by innovative companies that wish to reduce litigation
exposure. Thomas F. Cotter,Patent Holdup, Patent Remedies, and Antitrust
Responses, 34 J. Corp. L. 1151, 1169 (2009).
In this context, therefore, an injunction may not serve the public interest.
eBay, 547 U.S. at 396 (Kennedy, J., concurring); cf.Stormans, Inc. v. Selecky, 586
F.3d 1109, 1139 (9th Cir. 2009) (citing injunction overbreadth as public
interest concern). This Court reached essentially the same conclusion in seeking
to tame the systematic overcompensation of patent owners with excessive
damages. Lemley & Shapiro, 85 Tex. L. Rev. at 1994. Enjoining complex
products based on infringement of one or even a few narrow patents, the claimed
features of which do not drive consumer demand, would only aggravate this
problem because once an injunction is granted, there is no judicial oversight on the
amount a patentee may demand.
It would make little sense to close the door to excess compensation by
damages only to re-open (and aggravate) it by conferring the unilateral holdup
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power that comes with an injunction. Even the largest damages awards are subject
to a judicial check; once a court grants an injunction, however, the patentee
replaces the court as the ultimate decision-maker.
* * *
In short, awarding injunctions based on purported harms that resulted from
factors other than infringement would distort competition, overcompensate
patentees, unduly raise prices to consumers, and undermine rather than promote
innovation. There is no reason in law or policy to give such power to a patent
owner. Lemley & Shapiro, 85 Tex. L. Rev. at 2010.
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NEWYORK 8831813
16
CONCLUSION
For the foregoing reasons, the Court should affirm the Order.
Dated: May 6, 2013 WHITE & CASE LLP
__/s/ Christopher J. Glancy
Kevin X. McGann
Christopher J. Glancy
1155 Avenue of the Americas
ew York, New York 10036
Telephone: 212-819-8200
Facsimile: 212-354-8113
Warren S. Heit
WHITE & CASE LLP
3000 El Camino Real
5 Palo Alto Square, 9th
Floor
Palo Alto, California 94306
Attorneys foramici curiae Google Inc., HTC
Corporation, HTC America, Inc., Rackspace
Hosting, Inc., Red Hat, Inc. and SAP America,
Inc.
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CERTIFICATE OF COMPLIANCE
Pursuant to Federal Rule of Civil Procedure 29(c)(7), the undersigned
individual hereby certifies that this BRIEF OF AMICI CURIAE GOOGLE INC.,
HTC CORPORATION, HTC AMERICA, INC., RACKSPACE HOSTING, INC.,
RED HAT, INC. AND SAP AMERICA, INC. IN SUPPORT OF DEFENDANTS-
APPELLEES complies with the type-volume limitation of Federal Rule of
Appellate Procedure 32(a)(7)(B). The brief contains 3,190 words, excluding the
parts of the brief exempted by Federal Rule of Appellate Procedure
32(a)(7)(B)(iii).
This brief also complies with the typeface requirements of Federal Rule of
Appellate Procedure 32(a)(5) and the type style requirements of Federal Rule of
Appellate Procedure 32(a)(6). The brief has been prepared in a proportionally
spaced typeface using Microsoft Word, Office 2010, in Times New Roman, 14
point.
Dated: May 6, 2013 /s/ Christopher J. Glancy
Christopher J. Glancy
Counsel for amici curiae Google Inc.,
HTC Corporation, HTC America, Inc.,
Rackspace Hosting, Inc., Red Hat, Inc.and SAP America, Inc.
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NEWYORK 8837301 (2K)
1
CERTIFICATE OF SERVICE
I, Christopher J. Glancy, hereby certify that on May 6, 2013 the foregoing
BRIEF OFAMICI CURIAEGOOGLE INC., HTC CORPORATION, HTC
AMERICA, INC., RACKSPACE HOSTING, INC., RED HAT, INC. AND SAP
AMERICA, INC. IN SUPPORT OF DEFENDANTS-APPELLEES was
electronically filed with the Clerk of the Court using CM/ECF, and was served on
the following counsel via the CM/ECF system and electronic mail:
Counsel for SamsungCharles K. Verhoeven
Kevin A. Smith
QUINN EMANUEL URQUHART
& SULLIVAN, LLP
50 California St., 22nd Floor
San Francisco, CA 94111
Telephone: (415) 875-6600
Facsimile: (415) 875-6700
Kevin P.B. Johnson
Victoria F. Maroulis
QUINN EMANUEL URQUHART
& SULLIVAN, LLP
555 Twin Dolphin Drive, 5th Floor
Redwood Shores, CA 94065
Telephone: (650) 801-5000
Facsimile: (650) 801-5100
Kathleen M. SullivanWilliam B. Adams
QUINN EMANUEL URQUHART
& SULLIVAN, LLP
51 Madison Avenue, 22nd Floor
New York, NY 10010
Telephone: (212) 849-7000
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NEWYORK 8837301 (2K)
2
Facsimile: (212) 849-7100
Susan R. Estrich
Michael T. Zeller
QUINN EMANUEL URQUHART
& SULLIVAN, LLP
865 S. Figueroa St., 10th Floor
Los Angeles, CA 90017
Telephone: (213) 443-3000
Facsimile: (213) 443-3100
Counsel for Apple:
William F. Lee
Mark C. FlemingJoseph J. Mueller
Lauren B. Fletcher
WILMER CUTLER PICKERING
HALE AND DORR LLP
60 State Street
Boston, MA 02109
(617) 526-6000
Michael A. Jacobs
Rachel Krevans
Erik J. Olson
Richard S.J. Hung
Grant L. Kim
MORRISON & FOERSTER LLP
425 Market Street
San Francisco, CA 94105
(415) 268-7000
Jonathan G. CedarbaumWILMER CUTLER PICKERING
HALE AND DORR LLP
1875 Pennsylvania Avenue NW
Washington, DC 20006
(202) 663-6000
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3
Counsel forAmicus Nokia:
Patrick J. Flinn
Keith E. Broyles
ALSTON & BIRD LLP1201 West Peachtree Street
Atlanta, Georgia 30309
(404) 881-7000
Dated: May 6, 2013 /s/ Christopher J. Glancy
Christopher J. Glancy
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