Apple v. Samsung Part IV: The Injunction May Not Be Dead

On Thursday, September 17, 2015, in the fourth Federal Circuit opinion arising out of the patent skirmishes between global high technology titans Apple and Samsung Electronics, a sharply divided Federal Circuit panel vacated the trial court's denial of Apple's post-trial motion for a permanent injunction against Samsung.1 At trial, Apple prevailed on its infringement claims in the Northern District of California (and received a jury award of approximately $120M) but failed to persuade District Court Judge Koh to permanently enjoin Samsung from "making, using, selling, developing, advertising, or importing software or code capable of implementing the infringing features" in smartphones that directly compete with Apple's ubiquitous iPhone devices. 2

Despite the narrowness of Apple's requested injunction — which included a 30-day "sunset" period during which Samsung could design around the infringed claims that Samsung had represented at trial that it could design around quickly and easily — the trial court found that Apple had not demonstrated that it would suffer irreparable harm without an injunction. On this basis alone, the injunction was denied, notwithstanding Judge Koh's conclusions that both the public interest analysis and the balance of hardships favored Apple. The Federal Circuit held that the "district court abused its discretion when it did not enjoin Samsung's infringement. If an injunction were not to issue in this case, such a decision would virtually foreclose the possibility of injunctive relief in any multifaceted, multifunction technology." 3

The decision is an important departure from the weight of post-eBay4 precedent, which has diminished, if not removed altogether, the ability of patent holders to enjoin infringers. As Judge Reyna noted in his emphatic concurring opinion, the remedy of an injunction had for decades been an important aspect of the right to exclude enjoyed by a patent owner. Yet in recent years this remedy seemed increasingly difficult, if not impossible, to obtain. In fact, practitioners and commentators pointed to the district court's decision underlying Apple IV as an example of the fundamental erosion of injunctive relief as a potential remedy for patent infringement: at trial, a vigorous competitor of the infringer was denied an injunction by the trial court even after proving infringement (willful infringement, at that, for at least one of the three asserted patents) and after being awarded nine-figure damages by a jury. These practitioners and commentators queried whether obtaining injunctive relief was even possible in an Article III court anymore. In Apple IV, Judge Moore, joined by Judge Reyna, answered this question in the affirmative.

As to the first...