While candidly recognizing that its request for a stay of the Commission’s orders is
without precedent, Apple nevertheless claims entitlement to a stay even though it can avoid an
exclusion order by agreeing to license Samsung’s patents at a rate far below a rate Apple
conceded to be fair, reasonable and non-discriminatory.
There is no basis for granting Apple’s
of Apple’s purported justifications w
as previously raised, fully considered, andrejected by the Commission. As a result, Apple cannot establish that any of the four prongs of
the Commission’s test support a stay.
First, Apple fails to establish a likelihood of success on appeal or the existence of admittedly difficult legal questions raised by
the Commission’s Opinion.
claims of legaland factual error
in the Commission’s finding of a violation
are typical of its usual line of rhetoric. They do not present unique or novel questions of law, but, rather, attempt to traverseyet again issues such as claim construction, infringement, invalidity, domestic industry and patent exhaustion.
Indeed, the Commission fully considered and rejected each of Apple’s
arguments based on long-standing precedent.
Apple’s claim that the Federal Circuit is likely to vacate the Commission’s remedial
orders because they are contrary to the public interest fares no better. The Commission has broad discretion in determining the form and scope of its remedial orders and the Federal Circuitwill only disrupt that determination if the orders are shown to be arbitrary, capricious, an abuseof discretion, or not in accordance with law. Far from meeting this standard, Apple merelyrepeats arguments the Commission previously rejected on multiple bases in determining thatSamsung was entitled to a r
emedy for Apple’s infringement.
Second, Apple fails to show that it will be irreparably harmed absent a stay. TheCommission has previously found that the ability to license the infringed patent(s) weighs