Apple Inc. v. Samsung Electronics Co. Ltd. et al

Filing 952

MOTION to Shorten Time Apples Inc.s Motion To Shorten Time For Briefing On Apple Inc.s Motion Pursuant To Rule 62(C) For Entry Of Preliminary Injunction Without Further Hearing filed by Apple Inc.. (Attachments: #1 Declaration Of Mia Mazza In Support Of Apple Inc.s Motion To Shorten Time For Briefing On Its Motion Pursuant To Rule 62(C) For Entry Of Preliminary Injunction Without Further Hearing, #2 Proposed Order [Proposed] Order Granting Apples Motion To Shorten Time For Briefing On APPLE Inc.s Motion Pursuant To Rule 62(C) For Entry Of Preliminary Injunction Without Further Hearing)(McElhinny, Harold) (Filed on 5/18/2012)

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HAROLD J. MCELHINNY (CA SBN 66781)
[e-mail]
MICHAEL A. JACOBS (CA SBN 111664)
[e-mail]
JENNIFER LEE TAYLOR (CA SBN 161368)
[e-mail]
ALISON M. TUCHER (CA SBN 171363)
[e-mail]
RICHARD S.J. HUNG (CA SBN 197425)
[e-mail]
JASON R. BARTLETT (CA SBN 214530)
[e-mail]
MORRISON & FOERSTER LLP
425 Market Street
San Francisco, California 94105-2482
Telephone: [phone]
Facsimile: [phone]

WILLIAM F. LEE
[e-mail]
WILMER CUTLER PICKERING
HALE AND DORR LLP
60 State Street
Boston, MA 02109
Telephone: [phone]
Facsimile: [phone]
MARK D. SELWYN (SBN 244180)
[e-mail]
WILMER CUTLER PICKERING
HALE AND DORR LLP
950 Page Mill Road
Palo Alto, California 94304
Telephone: [phone]
Facsimile: [phone]

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Attorneys for Plaintiff and
Counterclaim-Defendant APPLE INC.

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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APPLE INC., a California corporation,
Plaintiff,

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v.
SAMSUNG ELECTRONICS CO., LTD., A
Korean business entity; SAMSUNG
ELECTRONICS AMERICA, INC., a New York
corporation; SAMSUNG
TELECOMMUNICATIONS AMERICA, LLC, a
Delaware limited liability company.,

Case No.

11-cv-01846-LHK (PSG)

APPLE’S INC.’S MOTION TO
SHORTEN TIME FOR BRIEFING
ON APPLE INC.’S MOTION
PURSUANT TO RULE 62(C) FOR
ENTRY OF PRELIMINARY
INJUNCTION WITHOUT
FURTHER HEARING

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Defendants.
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APPLE’S MOTION TO SHORTEN TIME FOR BRIEFING ON APPLE’S RULE 62(C) MOTION FOR PRELIMINARY INJUNCTION
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NOTICE OF MOTION AND MOTION
TO DEFENDANTS AND THEIR ATTORNEY OF RECORD:

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PLEASE TAKE NOTICE that Plaintiff Apple Inc. (“Apple”) hereby moves the Court,

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pursuant to Civil Local Rules 6-1(b) and 6-3, to shorten time for briefing on its accompanying

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Motion Pursuant to Rule 62(c) For Entry Of Preliminary Injunction Without Further Hearing

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(“Rule 62(c) Motion”).

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This motion is based on this notice of motion and supporting memorandum of points and

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authorities; the Declaration of Mia Mazza in support of this motion; the May 14, 2012 opinion of

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the Court of Appeals for the Federal Circuit in this case, Apple, Inc. v. Samsung Elecs. Co., No.

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2012-1105 (slip op.) (Fed. Cir. May 14, 2012); this Court’s December 2, 2011 Order Denying

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Motion for Preliminary Injunction (Dkt. No. 452); the Rule 62(c) Motion; and all supporting

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declarations and exhibits filed in support thereof; and such other written or oral argument as may

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be presented at or before the time this motion is taken under submission by the Court.

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Dated: May 18, 2012

MORRISON & FOERSTER LLP

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By:

/s/ Harold J. McElhinny
Harold J. McElhinny
Attorneys for Plaintiff
APPLE INC.

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APPLE’S MOTION TO SHORTEN TIME FOR BRIEFING ON APPLE’S RULE 62(C) MOTION FOR PRELIMINARY INJUNCTION 1
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MEMORANDUM OF POINTS AND AUTHORITIES
In accordance with Civil Local Rules 6-1(b) and 6-3, Apple moves the Court to shorten

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time for the briefing schedule for its Motion for Entry of a Preliminary Injunction. Specifically,

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Apple requests that:

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1)

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Samsung’s opposition to the Motion for Entry of a Preliminary Injunction be filed
by May 25, 2012;

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Apple’s reply be filed by two court days after Samsung’s opposition, May 30,
2012.

Apple’s Motion for Entry of a Preliminary Injunction seeks entry of a preliminary

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injunction prohibiting Samsung from infringing Apple’s D504,889 patent (“D’889 patent),

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including by making, using, offering to sell, or selling within the United States, or importing into

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the United States, the Galaxy Tab 10.1 tablet computer, without further hearing.

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Apple filed a motion for preliminary injunction as to the D’889 and other patents in July

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2011. This Court denied that motion by Order of December 2, 2011. (Dkt. No. 452 (“Order”) at

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50.) The Federal Circuit has just reversed the sole ground on which this Court denied a

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preliminary injunction against infringement of the D’889 patent. Apple, Inc. v. Samsung Elecs.

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Co., No. 2012-1105 (slip op.) (Fed. Cir. May 14, 2012). While this Court had concluded that

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Apple had failed to establish likely success on the merits, the Federal Circuit held instead that

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Samsung had failed to raise a substantial question as to validity of the D’889 patent based on

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obviousness. The Federal Circuit sustained this Court’s finding that Apple will likely suffer

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irreparable harm from Samsung’s continued sales of the Tab 10.1, and remanded solely for this

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Court to assess the balance of hardships and public interest factors.

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The two factors that the Federal Circuit directs this Court to consider on remand plainly

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favor Apple. The balance of hardships tips sharply in Apple’s favor Apple, given that the D’889

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is likely valid and infringed. Samsung has no basis to complain about “hardship” when it

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redesigned its tablet to make it more similar to Apple’s and has been selling its infringing tablet

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for over a year. (See Order at 37 & 49.) The public interest in the protection of patent rights

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weighs in favor of a preliminary injunction. Thus, all prerequisites for entry of a preliminary
APPLE’S MOTION TO SHORTEN TIME FOR BRIEFING ON APPLE’S RULE 62(C) MOTION FOR PRELIMINARY INJUNCTION 2
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injunction have been satisfied. The Court may enter a preliminary injunction now pursuant to

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Rule 62(c). See Fed. R. Civ. P. 62(c) (district court may “grant an injunction” while “an appeal is

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pending from an interlocutory order . . . that grants, dissolves, or denies an injunction”); U.S. v.

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El-O-Pathic Pharm., 192 F.2d 62, 79-80 (9th Cir. 1951) (per curiam) (plaintiff could seek

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temporary injunction from district court under Rule 62(c) before mandate issued on Ninth

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Circuit’s reversal of order denying preliminary injunction).

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The shortened briefing and hearing schedule requested by this motion is necessary to

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protect Apple from continuing irreparable harm caused by Samsung’s infringing conduct. This

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Court found five months ago that irreparable harm was likely to occur in the absence of injunctive

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relief against the sales of Samsung’s Galaxy Tab 10.1. (Order at 50.) The Federal Circuit agreed,

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sustaining this Court’s “finding of a likelihood of irreparable harm.” Apple v. Samsung,

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No. 2012-1105, slip op. at 25. It held that this Court had “considered the relevant factors,

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properly weighed them, and concluded that Apple had shown that it was likely to suffer

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irreparable harm from the sales of Samsung’s infringing tablets.” Id. The court specifically noted

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that this Court’s findings on irreparable harm were supported by “the relative market share of

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Apple and Samsung and the absence of other competitors in the relevant market” and by evidence

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showing that, “design mattered more to customers in making tablet purchases.” Id.

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Apple’s need for prompt injunctive relief is compelling. Preliminary injunctions are

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designed to “give speedy relief from irreparable injury.” Ross-Whitney Corp. v. Smith Kline &

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French Labs., 207 F.2d 190, 198 (9th Cir. 1953). This Court and the Federal Circuit have

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recognized that Apple is likely to suffer irreparable harm due to Samsung’s sale of the Galaxy

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Tab 10.1. Apple has already endured ten months of that irreparable harm since filing its

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preliminary injunction motion in July 2011. Now that the Federal Circuit has issued its opinion

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holding that this Court erred in concluding that Samsung had raised substantial questions as to the

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validity of the D’889 patent, Apple should not have to wait any longer for injunctive relief and its

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motion for that relief should be briefed on shortened time.

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Moreover, the Court’s original decision was rendered on a full record, and given the
additional guidance from the Federal Circuit, no further hearing should be required. Indeed, the
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limited nature of Federal Circuit’s remand contemplates that no further hearing is required. See

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Apple, Inc., No. 2012-1105, slip op. at 33-34. After noting that this Court had made findings

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regarding the balance of hardships and public interest, the court remanded for a “similar

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assessment” regarding the D’889 patent. Id. And in explaining why remand on those issues was

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appropriate, the court noted that this Court should be able to determine “in short order” whether

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those findings “are readily transferable to the tablet part of the case,” and if not, this Court’s

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“greater familiarity with the record will be an important safeguard.” Id. at 33.

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CONCLUSION

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For the foregoing reasons, Apple respectfully requests that the Court grant Apple’s

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Motion to Shorten Time for Briefing on Apple’s Motion for Entry of a Preliminary Injunction.

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Dated: May 18, 2012

MORRISON & FOERSTER LLP

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By:

/s/ Harold J. McElhinny
Harold J. McElhinny
Attorneys for Plaintiff
APPLE INC.

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APPLE’S MOTION TO SHORTEN TIME FOR BRIEFING ON APPLE’S RULE 62(C) MOTION FOR PRELIMINARY INJUNCTION 4
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