Litigators, Patents, Small Law Firms, Technology

Beyond Biglaw: Defining A Litigation Victory

The latest Federal Circuit ruling in the long running Apple v. Samsung patent saga presents an opportunity to discuss what it means to win in litigation.

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The big news in the patent world last week was the latest Federal Circuit ruling in the long-running Apple v. Samsung patent saga. Hard to believe that I used this case as an example when discussing patent law with my son’s fourth-grade class — the same son who is now a seventh-grader. If I asked him today what happened with the case, he would probably say that Apple has won, even though the case continues to generate headlines and seems headed for many more years of contest, absent a settlement. I venture to think that many regular people actually believed the case was over, and that Apple had prevailed, even though the latest developments prove otherwise — at least on the former point.

There is no dispute that this case is the most well-known patent case of this generation, and had demonstrated the ability to continue to generate headlines — not only in the patent or legal media, but also across a wide spectrum of mass-media outlets. Again, if I asked my kids to name a patent case, this would almost definitely be the first (only?) one that gets mentioned. What is not as obvious, however, is what were the true goals of the case for each side, and why the case continues as a result.

In the latest development, as you may have read elsewhere (good writeup by Bloomberg), the Federal Circuit decided that Judge Lucy H. Koh (N.D. Cal.) had erred by ruling that Apple was not entitled to an injunction once it had demonstrated that Samsung had infringed on its patents. The lower court had reasoned that an injunction should issue only if Apple could prove that the patented features that were infringed drove all of the customer demand for the infringing products. In contrast, the appeals court — in a split decision that included a vigorous dissent from Chief Judge Sharon Prost — decided that Apple could be entitled to an injunction as long as it showed some connection between the infringing features and customer demand. If anyone is interested on my take for investors on the situation, they can read more at Mimesis Law. The consensus, however, is that this “victory” by Apple will have muted economic impact — at least for the current case. If the decision is upheld by the full Federal Circuit, or if en banc review is denied, then the decision will likely have substantial effects on other patent cases going forward, especially competitor cases.

Even though Apple has earned, for now, the right to press for an injunction against at least one Samsung phone, if Apple’s goals for the case had been defined as trying to get Samsung “off the market,” then the case could easily be defined as a failure. Because Samsung has continued to sell phones, despite the numerous setbacks it has encountered along the way — starting with the previous infringement findings, and culminating for now in the most recent Federal Circuit decision. But Apple’s goal for this case was actually never about trying to get Samsung off the market, but to rather cement in the public’s collective mind that Apple is THE innovator in the smartphone space — with everyone else, and especially Samsung, just copying Apple’s innovations in an attempt to stay within touching distance of the undisputed market leader. From that perspective, the case has been a resounding success for Apple, and Samsung’s continued attempts to turn the tide are likely futile — even if they end up “winning” in the end.

If you accept that popular opinion is important, and especially when it comes to customer perception, then there is a decent argument that Apple’s efforts to assert its patents against its biggest rival in the smartphone space have already been a resounding success — even though the case is not “over,” and in fact may continue for some time yet. As lawyers, we sometimes have a tendency to define a litigation result narrowly, and are reluctant to call a winner or loser until all appeals are exhausted, or a case has settled. Part of the reason for that is the fact that litigators often find themselves in the role as purveyors of hope to clients, and view any setbacks as temporary hurdles that will be overcome when “justice prevails in the end.” This phenomenon is not limited to outside counsel, as in-house lawyers are just as likely to advocate that a case is still “winnable,” even if some or all of the original strategic objectives have not been met.

Apple v. Samsung therefore provides some valuable lessons for litigators (and any lawyers who manage client expectations regarding litigation activity) to keep in mind, because I think it provides a good example of how important it can be to know — at all points of a case — what a favorable result for the client would be. In fact, there is a credible argument that this whole endeavor has just been two technology giants fighting themselves to an expensive draw — at least in the legal sense. But that is beside the point, when you consider that one side of the case has met its objective (Apple), while the other continues to engage in a rear-guard action to defend its honor (Samsung).

The point is a simple one: even if your case is nowhere near as important or resource-intensive as Apple v. Samsung, the difference between a satisfied client and a disappointed one can often turn on how well the case objectives are drawn out in the beginning of a case. To that end, early communication with clients about what a realistic or achievable result from the litigation could look like is crucial. And because litigation can be unpredictable and twisty, it is also important to periodically consult with clients on whether the definition of victory has changed, whether because of case developments or more general business developments that can affect the client’s perspective of the case and the hoped-for result. At minimum, understanding and accounting for the strategic objectives of a case will help guide the litigation team over the life of the dispute. Because the more important a case is, the more important it is to know when you can actually say you have won.

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Apple or Samsung: Federal Circuit Panel Picks A Winner In Split Decision [Mimesis Law]

Gaston Kroub lives in Brooklyn and is a founding partner of Kroub, Silbersher & Kolmykov PLLC, an intellectual property litigation boutique. The firm’s practice focuses on intellectual property litigation and related counseling, with a strong focus on patent matters. You can reach him at gkroub@kskiplaw.com or follow him on Twitter: @gkroub.

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