William F. Lee
+1 617 526 6556 (t) +1 617 526 5000 (f) william.lee@wilmerhale.com
May 28, 2013 The Honorable Jan Horbaly Clerk of the Court United States Court of Appeals for the Federal Circuit 717 Madison Place NW Washington, DC 20439 Re:
Apple Inc. v. Samsung Electronics Co.
, No. 2013-1129 Dear Mr. Horbaly: Pursuant to FRAP 28(j), Apple respectfully submits the attached opinion from
Douglas Dynamics, LLC v. Buyers Products Co.
, No. 2011-1291 (Fed. Cir. May 21, 2013).
Douglas
supports Apple’s position that irreparable harm does not require proof that the specific patented feature drives consumer demand for the infringing products.
See
Apple Br. 47-60; Reply Br. 4-16.
Douglas
reversed the denial of a permanent injunction without applying—or even addressing—any “causal nexus” requirement, where the patent-in-suit “cover[ed] only some components of the accused [products].” Op. 10. Noting that “[i]rreparable injury encompasses different types of losses … including lost sales and erosion in reputation and brand distinction” (
id.
at 10-11), this Court held that irreparable injury arose from the patentee’s competition with the defendant’s infringing products: Where two companies are in competition against one another, the patentee suffers the harm—often irreparable—of being forced to compete against products that incorporate and infringe its own patented inventions.
Id.
at 12.
Douglas
further confirms, as Apple has argued (Apple Br. 36; Reply Br. 18), that “mere damages will not compensate for a competitor’s increasing share of the market, a market which [the patentee] competes in, and a market that [the patentee] has in part created with its investment in patented technology.” Op. 12-13.
Douglas
also shows that the balance of hardships favors Apple (Apple Br. 41-43; Reply Br. 23-25), by observing that, where the infringer represents that it has “a non-infringing alternative which it could easily deliver to the market, then the balance of hardships would suggest that [the defendant] should halt infringement and pursue a lawful course of market conduct.” Op. 13. Finally,
Douglas
supports Apple’s position that the public interest favors injunctive relief, especially where Samsung has copied Apple’s patented technology.
See
Apple Br. 44-46; Reply Br. 25-27. This Court stated that, although “the general public certainly enjoys lower prices, cheap copies of patented inventions have the effect of inhibiting innovation and incentive” and
Case: 13-1129 Document: 68-1 Page: 1 Filed: 05/28/2013
May 28, 2013 Page 2 “the public has a greater interest in acquiring new technology through the protections provided by the Patent Act than it has in buying ‘cheaper knock-offs.’” Op. 14. Very truly yours,
/s/ William F. Lee
William F. Lee Attachment cc: Counsel of record (via ECF)
Case: 13-1129 Document: 68-1 Page: 2 Filed: 05/28/2013