The recording of the oral argument in yesterday's Apple v. Samsung appeal before the Federal Circuit is now available, here. The argument focused on whether Apple is faced with irreparable harm absent an injunction. I suspect that Apple doesn't stand much of a chance of convincing the court to reverse Judge Koh's denial of a permanent injunction, but we'll see what the opinion says. For a nice write-up of some of the highlights of the argument, see Diane Bartz's Reuters article here.
One aspect of the argument I found intriguing was Judge Moore's comment, during Kathleen Sullivan's oral argument on behalf of Samsung, that ongoing royalties were not a form of equitable relief but rather a form of compensation (at about 34 minutes in). Functionally, that may be true--ongoing royalties are intended to compensate for future infringement, as Ms. Sullivan herself stated in response to question by Judge Prost--but characterizing them as compensatory and not equitable could call into question the Federal Circuit's holding in Paice LLC v. Toyota Motor Corp., 504 F.3d 1293, 1315-16 (Fed. Cir. 2007), that there is no right to a jury trial on the amount of ongoing royalties. One of the possible justifications for permitting courts to award ongoing royalties at all (a matter that some U.S. commentators have questioned) is that ongoing royalties can be thought of as a sort of conditional injunction, see Mark A. Lemley, The Ongoing Confusion over Ongoing Royalties, 76 Mo. L. Rev. 695, 698-99 (2011). As Lemley notes, if ongoing royalties are instead a legal remedy, there may be a Seventh Amendment right to a jury trial on their amount, though he argues that this problem could be addressed simply by having the jury determine the amount of these royalties as well as the royalties due for past infringement.
One aspect of the argument I found intriguing was Judge Moore's comment, during Kathleen Sullivan's oral argument on behalf of Samsung, that ongoing royalties were not a form of equitable relief but rather a form of compensation (at about 34 minutes in). Functionally, that may be true--ongoing royalties are intended to compensate for future infringement, as Ms. Sullivan herself stated in response to question by Judge Prost--but characterizing them as compensatory and not equitable could call into question the Federal Circuit's holding in Paice LLC v. Toyota Motor Corp., 504 F.3d 1293, 1315-16 (Fed. Cir. 2007), that there is no right to a jury trial on the amount of ongoing royalties. One of the possible justifications for permitting courts to award ongoing royalties at all (a matter that some U.S. commentators have questioned) is that ongoing royalties can be thought of as a sort of conditional injunction, see Mark A. Lemley, The Ongoing Confusion over Ongoing Royalties, 76 Mo. L. Rev. 695, 698-99 (2011). As Lemley notes, if ongoing royalties are instead a legal remedy, there may be a Seventh Amendment right to a jury trial on their amount, though he argues that this problem could be addressed simply by having the jury determine the amount of these royalties as well as the royalties due for past infringement.
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