Judge Koh Decides Not to Decide Yet, and Apple Says USPTO's Final Office Action Isn't Really "Final" Final ~pj

Judge Lucy Koh has ruled on the Apple and Samsung motions, and the only thing finally decided so far is that Apple loses on its desire for an early case management conference on April 3. She has taken Samsung's motion for a partial final order and a stay pending appeal under advisement, and she'll rule on it without needing oral argument. But she'd like more briefing on two issues. There will be a conference on April 29, because if in the end she decides to go forward with a trial, they need to work out a schedule. She might go forward with a trial immediately, or she might not. It depends on the briefs she gets next.

The two issues that she has asked the parties to brief more fully are that she'd like Apple to respond to Samsung's contention that a new trial on damages alone violates the Seventh Amendment. And she'd like Samsung to respond to Apple's contention that "immediate appeal of this Court's Order Re: Damages filed on March 1, 2013 is not viable". The biggie is the Seventh Amendment issue, simply because while judges have a lot of discretion, what they can't properly do ever is violate the Constitutional rights of a party. So if Samsung can convince her this is what an immediate trial is going to do, she will have no choice. Samsung's position is that there were errors in the jury instructions, and so having a trial on damages requires also reconsidering liability because "proof of injury" goes to both issues. But Apple gets to speak on the matter, so we will have to wait and see what happens, and the fact that she's asked the parties to attend the April 29th conference and come up with a trial schedule tells me that she is at least tentatively leaning Apple's way at the moment.

There are other filings, as is the parties' wont, and one is Apple letting the court know that the final office action by the USPTO isn't really "final" final. It can appeal the USPTO's decision that invalidated claim 19 of the Apple '381 patent, the bounce back patent, even when it really is final. But frankly, I take this as more a Michael Jacobs PR document for the public than a legal one for the judge, in that the judge already knows how USPTO reexaminations procedures work. She knows what a final office action means, and so she also already knows what a final office action usually indicates about the most likely end result, although in patent litigation, your odds at any given point are usually about 50-50, and that's one problem with patent law. No doubt there will be lots of appeals, since Apple, and Samsung too, just can't seem to get enough of litigation and motions, motions, motions, because it's so much fun.

Hmm. Not so much these days for Apple, huh? The trouble with declaring that you intend thermonuclear destruction of a competitor is, they get to hit you back. And the fact that Apple now has to try to undo the USPTO's devastating decision means that Apple indeed is not currently holding the winning hand with any certainty, despite any brave assertions that it will bounce back on the bounce back patent. On the other hand, the same is true for Apple's "win" at the jury trial. It's getting whittled back and whittled back, and it's surely true that it ain't over 'til it's over in patent litigation, and that means after the final appeal is over. That's why investing in litigation is for fools, in my view. You can't predict the outcome, unless one of the parties is the SCO Group, if you know what I mean. And I can't help but notice that the '381 patent is mentioned in some materials [PDF] that Apple files in support of its response to Samsung's motion for reconsideration regarding opening statement slides, whatever that's about. So the beat goes on. Neither side will ever stand down voluntarily, and they'll keep on filing motions and fighting and fighting and fighting until something makes them stop by ringing the final bell.

One thing the parties do agree on wholeheartedly is that they'd like the judge to quit ordering their private information unsealed, so there's more about that, with Apple putting in a declaration in support of Samsung.