Pressure is mounting on the U.S. Court of Appeals for the Federal Circuit to weigh in on Apple's failed bid for a sales ban against Samsung and to clarify the rules for injunctions in patent cases.
The latest entreaty for appellate review comes from an unlikely partyFinnish mobile phone maker Nokia Corp., which fought its own patent battle with Apple from 2009 to 2011 when the companies settled.
U.S. District Judge Lucy Koh in San Jose, Calif., dealt a major blow to Apple Inc. in December by denying permanent injunctions against 26 Samsung Electronics Co. devices even after a jury issued a sweeping verdict in Apple's favor.
Nokia's brief calls on the appeals court to reverse Koh's order, arguing it sets an impossibly high bar for patent holders to obtain injunctions and represents a "giant leap backwards for U.S. patent enforcement."
As a handset maker, Nokia competes with both Apple and Samsung. In its brief, Nokia's lawyers at Alston & Bird in Atlanta take no position on the substantive issues on appeal and describe Nokia as amici curiae "in support of neither party." Still, Nokia's strongly worded backing of Apple is remarkable considering the companies' antagonistic history.
Nokia, which owns more than 10,000 patents, takes issue with Koh's application of the so-called "causal nexus" standard that demands patent holders demonstrate consumers are purchasing competing products specifically for their infringing features.
The causal nexus standard makes injunctive relief a virtual impossibility, Nokia's lawyers argue, which could reduce incentives to innovate, force patent holders to license their technology to competitors, and reduce the value of patent portfolios.
The "district court imposed an overly-strict and undue burden on the patent holder and invented new law out of whole cloth, which threatens to turn the traditional purpose of patent law on its head," wrote Alston & Bird partners Patrick Flinn and Keith Broyles.
Flinn, a former Morrison & Foerster partner, referred a request for comment to Nokia. (Flinn joined MoFo in Palo Alto the same year as Apple lawyer Michael Jacobs.)
According to IP lawyers, Koh's ruling fostered confusion over the standard for permanent injunctions in patent cases. A key question is whether the same rigorous standard should apply to both preliminary injunctions that are issued before a court's finding of infringement and to permanent injunctions that are issued upon such a finding.