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No. 2013-1129

United States Court of Appeals
for the

Federal Circuit
APPLE INC., Plaintiff-Appellant, – v. – SAMSUNG ELECTRONICS CO., LTD., SAMSUNG ELECTRONICS AMERICA, INC., SAMSUNG TELECOMMUNICATIONS AMERICA, LLC, Defendants-Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA IN CASE NO. 11-CV-1846, LUCY H. KOH, U.S. DISTRICT JUDGE

BRIEF FOR AMICI CURIAE GOOGLE, INC., HTC CORPORATION, HTC AMERICA, INC., RACKABLE HOSTING, INC., RED HAT, INC. AND SAP AMERICA, INC. IN SUPPORT OF APPELLEES
WHITE & CASE LLP 1155 Avenue of the Americas New York, New York 10036 (212) 819-8200 WHITE & CASE LLP 3000 El Camino Real 5 Palo Alto Square, 9th Floor Palo Alto, California 94306 (650) 213-0300 Attorneys for Amici Curiae May 6, 2013

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CERTIFICATE OF INTEREST Counsel for Amici certifies the following: 1. The full name of every party or amicus represented by the

undersigned counsel in the above-captioned appeal is Google Inc., HTC Corporation, HTC America, Inc., Rackspace Hosting, Inc., Red Hat, Inc. and SAP America, Inc. 2. The name of the real party in interest (if the party named in the

caption is not the real party in interest) represented by me is: N/A 3. All parent corporations and any publicly held companies that own 10

percent or more of the stock of any party or amicus curiae represented by me are: • HTC America, Inc. is a wholly owned subsidiary of HTC Corporation. • Red Hat, Inc. has no parent corporation, and the only publicly held companies that own 10 percent or more of its stock are T. Rowe Price and Fidelity Management and Research Company. • SAP America, Inc. is a privately held corporation and is a wholly owned subsidiary of SAP AG. 4. The names of all law firms and the partners or associates that

appeared for the parties or amici now represented by me in the trial court or are expected to appear in this court are:
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Kevin X. McGann Christopher J. Glancy WHITE & CASE LLP 1155 Avenue of the Americas New York, New York 10036 Telephone: (212) 819-8200 Facsimile: (212) 354-8113

Warren S. Heit WHITE & CASE LLP 3000 El Camino Real 5 Palo Alto Square, 9th Floor Palo Alto, California 94306 Telephone: (650) 213-0300 Facsimile: (650) 213-8158

Dated: May 6, 2013

/s/ Christopher J. Glancy Christopher J. Glancy

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TABLE OF CONTENTS INTEREST OF AMICI CURIAE ........................................................................................... 1 ARGUMENT .............................................................................................................................. 4 I. II. THIS COURT’S CAUSAL NEXUS REQUIREMENT IS CONSISTENT WITH eBAY ....................................................................................... 4 UNLESS INFRINGEMENT ITSELF CAUSED A SUBSTANTIAL INJURY, THE BALANCE OF THE EQUITIES AND THE PUBLIC INTEREST WEIGH HEAVILY AGAINST INJUNCTIVE RELIEF IN THIS CONTEXT ........................................................................................................... 9 A. By Isolating The Injury Attributable To Infringement, The Nexus Requirement Establishes The Baseline Against Which Other Equitable Factors Are Considered. .............................................................. 10 The Balance Of The Equities And The Public Interest Generally Preclude The Issuance Of Injunctions Against Complex Products Based Only On The Products’ Inclusion Of Relatively Minor Infringing Features. ......................................................................................... 11

B.

CONCLUSION ........................................................................................................................ 16

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TABLE OF AUTHORITIES CASES Apple Inc. v. Samsung Elecs. Co., 678 F.3d 1314 (Fed Cir. 2012) (“Apple I”) ...... 4, 5 Apple Inc. v. Samsung Elecs. Co. 695 F.3d 1370 (Fed. Cir. 2012) (“Apple II”) .................................................. 4, 5, 7 Automatic Radio Mfg. Co. v. Ford Motor Co., 272 F. Supp. 744 (D. Mass. 1967), aff’d, 390 F.2d 113 (1st Cir. 1968) ......................................................................... 5 Diversified Mortg. Investors v. U.S. Life Title Ins. Co. of N.Y., 544 F.2d 571 (2d Cir. 1976) ................................................................................................................ 5 eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388 (2006) ................................. passim Garretson v. Clark, 111 U.S. 120 (1884) .................................................................... 7 Georgia-Pacific Corp. v. U.S. Plywood Corp. 318 F. Supp. 1116 (S.D.N.Y. 1970) ....................................................................... 6 Grain Processing Corp. v. Am. Maize-Products Co., 185 F.3d 1341 (Fed. Cir. 1999) ....................................................................................................................... 6 Hecht Co. v. Bowles, 321 U.S. 321 (1944) ................................................................ 12 Hutchinson v. Am. Oil Co., 221 F. Supp. 728 (E.D. Pa. 1963) ................................... 5 Ill. Tool Works Inc. v. Indep. Ink, Inc., 547 U.S. 28 (2006) ...................................... 11 King Instruments Corp. v. Perego, 65 F.3d 941 (Fed. Cir. 1995) ............................... 6 MercExchange L.L.C. v. eBay, Inc., 401 F.3d 1323 (Fed. Cir. 2005) ......................... 9 Mostaghim v. Fashion Inst. of Tech., Civ No. 01-8090, 2001 WL 1537545 (S.D.N.Y. Dec. 3, 2001) ......................................................................................... 5 Richardson v. Suzuki Motor Co., 868 F.2d 1226 (Fed. Cir. 1989) .............................. 9 Robert Bosch LLC v. Pylon Mfg. Corp., 659 F.3d 1142 (Fed. Cir. 2011)................... 9 Salazar v. Buono, 559 U.S. 700, 130 S. Ct. 1803 (2010) .......................................... 10
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Stormans, Inc. v. Selecky, 586 F.3d 1109 (9th Cir. 2009) ......................................... 14 Weinberger v. Romero-Barcelo, 456 U.S. 305 (1982) .............................................. 10 Winter v. NRDC, 555 U.S. 7 (2008) .......................................................................... 10 STATUTES AND RULES U.S. Const., Article I, § 8 ............................................................................................. 7 MISCELLANEOUS Carl Shapiro, Patent Reform: Aligning Reward and Contribution, 8 Nat’l Bureau of Econ. Research 111 (2007)............................................................................... 13 FTC, The Evolving IP Marketplace: Aligning Patent Notice and Remedies with Competition, 231 (2011) ....................................................................................... 11 Mark A. Lemley & Carl Shapiro, Patent Holdup and Royalty Stacking, 85 Tex. L. Rev. 1991 (2007) ................................................................................ 12, 13, 14, 15 Mark A. Lemley & Philip J. Weiser, Should Property or Liability Rules Govern Information?, 85 Tex. L. Rev. 783 (2007) ........................................................... 14 Thomas F. Cotter, Patent Holdup, Patent Remedies, and Antitrust Responses, 34 J. Corp. L. 1151 (2009) ............................................................................................ 14

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Amici curiae and non-parties Google Inc. (“Google”), HTC Corporation and HTC America, Inc. (collectively “HTC”), Rackspace Hosting, Inc. (“Rackspace”), Red Hat, Inc. (“Red Hat”), and SAP America, Inc. (“SAP”) (collectively “Amici”) respectfully submit this brief in support of Defendants-Appellees Samsung Electronics Co., Ltd., Samsung Electronics America, Inc., and Samsung Telecommunications America, LLC (collectively “Samsung”) and in support of the District Court’s December 17, 2012 order denying Plaintiff-Appellant Apple Inc.’s (“Apple”) motion for a permanent injunction (the “Order”). INTEREST OF AMICI CURIAE 1 Amicus Google is the developer of Android, a platform for mobile devices such as smartphones and tablet computers, and particular versions of Android running on the Samsung products that are the subject of the Order. Google also develops and provides Internet-related services and products, including search, cloud computing, software and online advertising technologies. Amicus HTC is a leading developer and manufacturer of smartphones and tablets based on the Android and Windows Phone platforms. With Google, HTC

Pursuant to Fed. R. App. P. 29(c), Google, HTC, Rackspace, Red Hat, and SAP state that no counsel for a party authored this brief, in whole or in part, and that no person or entity, other than Amici or counsel for Amici, made any monetary contribution to the preparation or submission of the brief.
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developed the world’s first Android smartphone. HTC was also the first company to launch 3G, 4G WiMAX, 4G HSPA+ and 4G LTE smartphones in the world. Amicus Rackspace is a service leader in cloud computing, delivering enterprise-level hosting services to businesses of all sizes and kinds around the world. Rackspace provides server space and internet connectivity that allows businesses to store and retrieve data and to implement their applications and operating systems in a stable, secure environment. Amicus Red Hat is the world’s leading provider of open-source software and related services to enterprise customers. Its supply chain involves hundreds of open source projects, which work independently of each other and collaborate over the Internet. Its software products are used by Wall Street investment firms, hundreds of Fortune 500 companies, and the United States government. Amicus SAP is a leading technology company focused on developing innovative software and computer-based business solutions. It conducts significant research and development and invests heavily in commercializing innovative technologies. Amici are all innovative technology companies that develop and provide a variety of products and services that, like the mobile devices at issue in this appeal, incorporate a wide array of features. As such, an issue presented in this appeal – whether a court may enjoin the sale of innovative and technologically complex
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products based on the incorporation of trivial patented features without evidence that the accused features drive sales of the products – is a matter of great concern to amici.

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ARGUMENT I. THIS COURT’S CAUSAL NEXUS REQUIREMENT IS CONSISTENT WITH EBAY Though injunctions were once issued as a matter of course in patent cases, the Supreme Court of the United States in eBay held that “broad classifications” and “categorical rule[s]” are inappropriate in determining whether to grant an injunction. Rather, a court must apply the traditional equitable factors: A plaintiff must demonstrate: (1) that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction. eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006). Thus, there is no longer a presumption of irreparable harm in favor of a prevailing patentee. Although the patentee’s right to exclude must be considered in determining whether an injunction should issue, that right is not absolute; interference with that right, standing alone, does not constitute irreparable harm. The patentee must show that it will suffer an injury that is not only irreparable, but that “sufficiently relate[s] to the infringement.” Apple Inc. v. Samsung Elecs. Co., 695 F.3d 1370, 1374 (Fed. Cir. 2012) (“Apple II”); see also Apple Inc. v. Samsung Elecs. Co., 678 F.3d 1314, 1324 (Fed Cir. 2012) (“Apple I”). As this Court has twice explained:

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To show irreparable harm, it is necessary to show that the infringement caused harm in the first place. Sales lost to an infringing product cannot irreparably harm a patentee if consumers buy that product for reasons other than the patented feature. If the patented feature does not drive the demand for the product, sales would be lost even if the offending feature were absent from the accused product. Thus, a likelihood of irreparable harm cannot be shown if sales would be lost regardless of the infringing conduct. Apple II, 695 F.3d at 1374 (quoting Apple I, 678 F.3d at 1324). This causal nexus requirement is nothing new in injunction analyses. It is well established in non-patent cases that irreparable harm must be causally related to the conduct at issue. See, e.g., Diversified Mortg. Investors v. U.S. Life Title Ins. Co. of N.Y., 544 F.2d 571, 576 (2d Cir. 1976) (the court was “hard pressed to find any irreparable harm which is causally related to” defendant’s negligence); Mostaghim v. Fashion Inst. of Tech., Civ No. 01-8090, 2001 WL 1537545, at *3 (S.D.N.Y. Dec. 3, 2001) (“The only potential irreparable harm that [plaintiff] has stated . . . has no causal nexus with the alleged [] violation.”); Automatic Radio Mfg. Co. v. Ford Motor Co., 272 F. Supp. 744, 748-49 (D. Mass. 1967), aff’d, 390 F.2d 113 (1st Cir. 1968) (denying preliminary injunction because, inter alia, the plaintiffs “failed to establish a causal relationship between the [allegedly illegal tiein] and plaintiffs’ declining sales”); Hutchinson v. Am. Oil Co., 221 F. Supp. 728, 730-31 (E.D. Pa. 1963) (plaintiffs failed to establish any causal connection between the alleged antitrust violation and irreparable harm).
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Moreover, courts have long considered causation in determining remedies for patent infringement. In the context of lost profits, it is well established that “the patent owner must show ‘causation in fact,’ establishing that ‘but for’ the infringement, he would have made additional profits.” Grain Processing Corp. v. Am. Maize-Products Co., 185 F.3d 1341, 1350-51 (Fed. Cir. 1999) (quoting King Instruments Corp. v. Perego, 65 F.3d 941, 952 (Fed. Cir. 1995)). Where the patented feature is but one component of a multi-feature product, this Court has stressed the importance of establishing consumer demand for the patented feature, not simply demand for the product as a whole. In Grain Processing, the Court affirmed the district court’s ruling that the plaintiff was not entitled to lost profits, where the district court concluded “there is no economically significant demand for a product having all of the [claimed] attributes,” the claimed features “are irrelevant to consumers,” and the plaintiff did not have a patent on the “economically significant product” as a whole. Grain Processing, 185 F.3d at 1348, 1354 (citation and quotation marks omitted). Similarly, in the context of determining a reasonable royalty, courts have long required apportionment of damages attributable to the patented feature. See Georgia-Pacific Corp. v. U.S. Plywood Corp., 318 F. Supp. 1116, 1120 (S.D.N.Y. 1970) (listing as a factor in reasonable royalty analysis “the portion of the realizable profit that should be credited to the invention as distinguished from non6
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patented elements, the manufacturing process, business risks, or significant features or improvements added by the infringer”); see also Garretson v. Clark, 111 U.S. 120, 121 (1884) (“The patentee . . . must in every case give evidence tending to separate or apportion the defendant’s profits and the patentee’s damages between the patented feature and the unpatented features . . . .”). Thus, after eBay mandated application of the traditional equitable factors in patent cases, this Court applied established legal principles and correctly ruled that irreparable harm and a causal nexus are “inextricably related.” In other words, it may very well be that the accused product would sell almost as well without incorporating the patented feature. And in that case, even if the competitive injury that results from selling the accused device is substantial, the harm that flows from the alleged infringement (the only harm that should count) is not. Thus, the causal nexus inquiry is indeed part of the irreparable harm calculus: it informs whether the patentee’s allegations of irreparable harm are pertinent to the injunctive relief analysis, or whether the patentee seeks to leverage its patent for competitive gain beyond that which the inventive contribution and value of the patent warrant. Apple II, 695 F.3d at 1374-75. Where, as here, a plaintiff alleges irreparable harm arising from lost sales, an injunction cannot issue unless the patentee demonstrates a causal nexus between the claimed invention and irreparable harm; otherwise, the remedy would go well beyond the patentee’s contribution to the “useful arts.” See U.S. Const., art. I, § 8.

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The question for this Court, therefore, is whether sales of infringing products would be any less absent the patented features. As the district court correctly held, when the patentee alleges irreparable harm based on lost sales, a sufficiently strong causal nexus exists only when the evidence shows that consumers buy a complex, multi-featured product specifically because it contains the patented feature. Moreover, such demand must be causally linked to the patented invention. Evidence of mere consumer preference for the type of feature covered by the patent is insufficient, especially when non-infringing alternatives are readily available and there is no evidence that consumers prefer the patented feature over the noninfringing alternative. Apple asks this Court to ignore the causal nexus requirement and, instead, adopt a rule whereby irreparable harm is presumed based solely on the interference with a patentee’s right to exclude. (Apple Br. at 52.) eBay rejected such categorical approaches, explaining that the right to exclude is not absolute, but rather is subject to traditional principles of equity. eBay, 547 U.S. at 392. In his concurrence, Justice Kennedy similarly rejected the argument that the right to exclude, by itself, automatically justifies an injunction. eBay, 547 U.S. at 396 (Kennedy, J., concurring) (“Both the terms of the Patent Act and the traditional view of injunctive relief accept that the existence of a right to exclude does not dictate the remedy for a violation of that right.”).
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Indeed, eBay expressly rejected not only this Court’s general rule that a permanent injunction will issue upon a finding of infringement, but also the premise on which that rule was based: that the “right to exclude recognized in a patent is but the essence of the concept of property.” See MercExchange L.L.C. v. eBay, Inc., 401 F.3d 1323, 1338 (Fed. Cir. 2005) (citing Richardson v. Suzuki Motor Co., 868 F.2d 1226, 1246-47 (Fed. Cir. 1989)). After eBay, the premise is no longer dispositive and the presumption no longer exists. See Robert Bosch LLC v. Pylon Mfg. Corp., 659 F.3d 1142, 1149 (Fed. Cir. 2011) (holding that “eBay jettisoned the presumption of irreparable harm as it applies to determining the appropriateness of injunctive relief”). Given the significance of a finding of irreparable harm in the injunction analysis, if this Court were to adopt Apple’s proposed rule, we would return to the pre-eBay days when injunctive relief automatically followed a finding of infringement. II. UNLESS INFRINGEMENT ITSELF CAUSED A SUBSTANTIAL INJURY, THE BALANCE OF THE EQUITIES AND THE PUBLIC INTEREST WEIGH HEAVILY AGAINST INJUNCTIVE RELIEF IN THIS CONTEXT Even if a competitor’s infringement caused some irreparable injury, other equitable factors weigh heavily against injunctive relief when additional, noninfringing features drive demand for the accused product as a whole.

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A.

By Isolating The Injury Attributable To Infringement, The Nexus Requirement Establishes The Baseline Against Which Other Equitable Factors Are Considered.

As eBay stressed, no one factor necessarily justifies injunctive relief in isolation; courts must consider all four traditional factors together. eBay, 547 U.S. at 391. And if other factors outweigh “the injurious consequences” of infringement, injunctive relief is unwarranted. See Weinberger v. Romero-Barcelo, 456 U.S. 305, 311 (1982) (citation and quotation marks omitted). Two of the other equitable factors—the balance of the equities and the public interest—depend in part on the extent to which infringement itself, as opposed to an accused product as a whole, injured the patentee. Injunctive relief remedies only “the wrong or injury that has been established,” i.e., the harm caused by infringement. Salazar v. Buono, 559 U.S. 700, 130 S. Ct. 1803, 1818 (2010) (plurality op.). Harms that are not attributable to the specific legal violation at issue are irrelevant to the analysis. Thus, for example, the Supreme Court held that even if a defendant’s failure to prepare an environmental impact statement before engaging in sonar training warranted an “injunction tailored to the preparation of” such a statement, it did not justify an injunction against the training itself. Winter v. NRDC, 555 U.S. 7, 32-33 (2008). Isolating the specific harm attributable to infringement is therefore an essential predicate to reasoned balancing of the competing interests. Courts cannot
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simply assume that a patent holder’s alleged irreparable harm (here, loss of market share) stems from infringement instead of from lawful competition based on a product’s non-infringing features. The Patent Office tests applications for novelty, not quality or commercial value. Products with patented features often compete against non-infringing alternatives that are just as good, if not better, and a product’s mere inclusion of a patented feature provides no guarantee of market success. See Ill. Tool Works Inc. v. Indep. Ink, Inc., 547 U.S. 28, 45-46 (2006) (holding that patents do not “necessarily confer market power”). B. The Balance Of The Equities And The Public Interest Generally Preclude The Issuance Of Injunctions Against Complex Products Based Only On The Products’ Inclusion Of Relatively Minor Infringing Features.

As Apple concedes, “individual features in complex products will almost never drive consumer demand by themselves.” (Apple Br. 55-56.) For that reason, the balance of hardships “tend[s] to tip toward the infringer when the invention is a component of a downstream product accounting for a relatively small portion of the product’s value . . . .” FTC, The Evolving IP Marketplace: Aligning Patent Notice and Remedies with Competition, 231 (2011). On one hand, denial of injunctive relief would not substantially impair the patentee’s legitimate interests. The patentee can recover damages to compensate for any ongoing infringement. Further, the patentee suffers little, if any, competitive injury from infringement

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because its loss of market share is attributable to other factors, such as the superiority and greater ingenuity of competing products. On the other hand, awarding injunctive relief in this circumstance would severely penalize defendants. The owner of a trivial patent has no reasonable expectation of more than trivial compensation. But “an injunction, and the potentially serious sanctions arising from its violation, can be employed as a bargaining tool to charge exorbitant fees to companies that seek to buy licenses to practice the patent.” eBay, 547 U.S. at 396 (Kennedy, J., concurring). Such holdup power would permit patent holders to capture a greater amount of money than their invention is worth. Resulting settlements or licenses would reflect not the value of the invention, but instead the ability to disrupt the licensee’s business. That is “not a legitimate part of the value of a patent; it is a windfall to the patent owner that comes at the expense not of unscrupulous copyists but of legitimate companies doing their own R&D.” Mark A. Lemley & Carl Shapiro, Patent Holdup and Royalty Stacking, 85 Tex. L. Rev. 1991, 2009 (2007). Injunctive relief is meant “to deter, not to punish.” Hecht Co. v. Bowles, 321 U.S. 321, 329 (1944). Thus, where the patent covers a trivial feature of a complex device, the balance of the equities is not close. From a patentee’s perspective, an injunction would amount to winning the lottery based on the happenstance (from the patentee’s perspective) that someone else develops and markets an accused product
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that succeeds for other reasons, such as the defendant’s own innovations. From a defendant’s perspective, however, this is no lottery; it is highway robbery. In a lottery, everyone pays the same amount for a ticket and the lottery pays winners selected at random. But here, the least deserving claim the prize and confiscate it from the most deserving: The holders of trivial patents with little or no value to the public hold up companies that have successfully developed and marketed important, innovative products based on the products’ non-infringing features. Such a result turns the patent system’s fundamental objective—to encourage and reward innovation—on its head. Overcompensation through holdup power is not simply inequitable as between the parties; it “can reduce efficiency and stifle innovation,” contrary to the public interest. Carl Shapiro, Patent Reform: Aligning Reward and Contribution, 8 Nat’l Bureau of Econ. Research 111, 113 (2007). Holdup power “discourages innovation” because “the victims of holdup are frequently firms that have made significant R&D investments themselves.” Lemley & Shapiro, 85 Tex. L. Rev. at 2010. The excess royalties do little to stimulate innovation by patent holders but instead “act as a tax on new products incorporating the patented technology, thereby impeding rather than promoting innovation.” Id. at 1993. The consequences would be especially acute in “the information technology sector,” where a complex product “can easily be covered by dozens or even
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hundreds of different patents” relating to small components or features of the product. Id. at 1992. By its nature, patent holdup “impose[s] significant social welfare costs by restricting otherwise lawful conduct” inhering in a product’s noninfringing features. Mark A. Lemley & Philip J. Weiser, Should Property or Liability Rules Govern Information?, 85 Tex. L. Rev. 783, 787 (2007). That “may inhibit investment” by innovative companies that wish to reduce litigation exposure. Thomas F. Cotter, Patent Holdup, Patent Remedies, and Antitrust Responses, 34 J. Corp. L. 1151, 1169 (2009). In this context, therefore, “an injunction may not serve the public interest.” eBay, 547 U.S. at 396 (Kennedy, J., concurring); cf. Stormans, Inc. v. Selecky, 586 F.3d 1109, 1139 (9th Cir. 2009) (citing injunction “overbreadth” as “public interest” concern). This Court reached essentially the same conclusion in seeking to tame “the systematic overcompensation of patent owners” with excessive damages. Lemley & Shapiro, 85 Tex. L. Rev. at 1994. Enjoining complex products based on infringement of one or even a few narrow patents, the claimed features of which do not drive consumer demand, would only aggravate this problem because once an injunction is granted, there is no judicial oversight on the amount a patentee may demand. It would make little sense to close the door to excess compensation by damages only to re-open (and aggravate) it by conferring the unilateral holdup
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power that comes with an injunction. Even the largest damages awards are subject to a judicial check; once a court grants an injunction, however, the patentee replaces the court as the ultimate decision-maker. * * *

In short, awarding injunctions based on purported harms that resulted from factors other than infringement would distort competition, overcompensate patentees, unduly raise prices to consumers, and undermine rather than promote innovation. “There is no reason in law or policy to give such power to a patent owner.” Lemley & Shapiro, 85 Tex. L. Rev. at 2010.

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CONCLUSION For the foregoing reasons, the Court should affirm the Order. Dated: May 6, 2013 WHITE & CASE LLP __/s/ Christopher J. Glancy Kevin X. McGann Christopher J. Glancy 1155 Avenue of the Americas New York, New York 10036 Telephone: 212-819-8200 Facsimile: 212-354-8113 Warren S. Heit WHITE & CASE LLP 3000 El Camino Real 5 Palo Alto Square, 9th Floor Palo Alto, California 94306 Attorneys for amici curiae Google Inc., HTC Corporation, HTC America, Inc., Rackspace Hosting, Inc., Red Hat, Inc. and SAP America, Inc.

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CERTIFICATE OF COMPLIANCE Pursuant to Federal Rule of Civil Procedure 29(c)(7), the undersigned individual hereby certifies that this BRIEF OF AMICI CURIAE GOOGLE INC., HTC CORPORATION, HTC AMERICA, INC., RACKSPACE HOSTING, INC., RED HAT, INC. AND SAP AMERICA, INC. IN SUPPORT OF DEFENDANTSAPPELLEES complies with the type-volume limitation of Federal Rule of Appellate Procedure 32(a)(7)(B). The brief contains 3,190 words, excluding the parts of the brief exempted by Federal Rule of Appellate Procedure 32(a)(7)(B)(iii). This brief also complies with the typeface requirements of Federal Rule of Appellate Procedure 32(a)(5) and the type style requirements of Federal Rule of Appellate Procedure 32(a)(6). The brief has been prepared in a proportionally spaced typeface using Microsoft Word, Office 2010, in Times New Roman, 14 point. Dated: May 6, 2013 /s/ Christopher J. Glancy Christopher J. Glancy Counsel for amici curiae Google Inc., HTC Corporation, HTC America, Inc., Rackspace Hosting, Inc., Red Hat, Inc. and SAP America, Inc.

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CERTIFICATE OF SERVICE I, Christopher J. Glancy, hereby certify that on May 6, 2013 the foregoing BRIEF OF AMICI CURIAE GOOGLE INC., HTC CORPORATION, HTC AMERICA, INC., RACKSPACE HOSTING, INC., RED HAT, INC. AND SAP AMERICA, INC. IN SUPPORT OF DEFENDANTS-APPELLEES was electronically filed with the Clerk of the Court using CM/ECF, and was served on the following counsel via the CM/ECF system and electronic mail: Counsel for Samsung Charles K. Verhoeven Kevin A. Smith QUINN EMANUEL URQUHART & SULLIVAN, LLP 50 California St., 22nd Floor San Francisco, CA 94111 Telephone: (415) 875-6600 Facsimile: (415) 875-6700 Kevin P.B. Johnson Victoria F. Maroulis QUINN EMANUEL URQUHART & SULLIVAN, LLP 555 Twin Dolphin Drive, 5th Floor Redwood Shores, CA 94065 Telephone: (650) 801-5000 Facsimile: (650) 801-5100 Kathleen M. Sullivan William B. Adams QUINN EMANUEL URQUHART & SULLIVAN, LLP 51 Madison Avenue, 22nd Floor New York, NY 10010 Telephone: (212) 849-7000
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Facsimile: (212) 849-7100 kathleensullivan@quinnemanuel.com Susan R. Estrich Michael T. Zeller QUINN EMANUEL URQUHART & SULLIVAN, LLP 865 S. Figueroa St., 10th Floor Los Angeles, CA 90017 Telephone: (213) 443-3000 Facsimile: (213) 443-3100 Counsel for Apple: William F. Lee Mark C. Fleming Joseph J. Mueller Lauren B. Fletcher WILMER CUTLER PICKERING HALE AND DORR LLP 60 State Street Boston, MA 02109 (617) 526-6000 Michael A. Jacobs Rachel Krevans Erik J. Olson Richard S.J. Hung Grant L. Kim MORRISON & FOERSTER LLP 425 Market Street San Francisco, CA 94105 (415) 268-7000 Jonathan G. Cedarbaum WILMER CUTLER PICKERING HALE AND DORR LLP 1875 Pennsylvania Avenue NW Washington, DC 20006 (202) 663-6000
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NEWYORK 8837301 (2K)

Case: 13-1129

Document: 77

Page: 26

Filed: 06/05/2013

Counsel for Amicus Nokia: Patrick J. Flinn Keith E. Broyles ALSTON & BIRD LLP 1201 West Peachtree Street Atlanta, Georgia 30309 (404) 881-7000

Dated: May 6, 2013

/s/ Christopher J. Glancy Christopher J. Glancy

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NEWYORK 8837301 (2K)

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