In September, the Federal Circuit vacated Judge Koh's order denying Apple an injunction against Samsung in the case involving the "slide to unlock" patent (see my blog post, here). Today, the court issued an order denying Samsung's petition for rehearing en banc, but withdrew the previous opinions and replaced them with these, which according to the order make the following changes:
Samsung’s petition for rehearing is granted by a majority of the panel for the limited purpose of modifying the previously filed majority opinion. Page 17 of the original opinion reads: “Apple did not establish that that these features were the exclusive or significant driver of customer demand, which certainly would have weighed more heavily in its favor. We conclude that this factor weighs in favor of granting Apple’s injunction.” The corrected opinion reads:
Apple did not establish that these features were the exclusive driver of customer demand, which certainly would have weighed more heavily in its favor. Apple did, however, show that “a patented feature is one of several features that cause consumers to make their purchasing decisions.” Apple III, 735 F.3d at 1364. We conclude that this factor weighs in favor of granting Apple’s injunction.The dissenting opinion was also amended. Samsung’s petition is denied in all other respects.
Today is a busy day for me--I have this webinar coming up in a few hours, among other matters--but I'll try to find some time later today to see in what respects Judge Prost amended her dissenting opinion, and report back.
Update: As far as I can tell, all of the changes to Judge Prost's dissenting point are in Part B (pages 5-7 of the dissent). Perhaps the most important passage is this:
Perhaps recognizing its error, the majority reissued its opinion in this case to remove the implication that even an insignificant connection might be enough to satisfy the causal nexus requirement.2/ While this change is a more accurate reflection of our law, it does not obviate the central problem with the majority’s conclusion in this case. As we stated in Apple III, “[t]he question becomes one of degree, to be evaluated by the district court.” Apple III, 695 F.3d at 1368. Here, the district court weighed the evidence and found it lacking. Injunction Order at *13 (“[T]he weight of the evidence shows that Apple’s conjoint study fails to demonstrate that the features claimed in the ’647, ’721, and ’172 patents drive consumer demand for Samsung’s infringing products.”). The majority identifies no basis for overturning this finding with its conclusion—unsupported by the record—that “Apple did, however, show that ‘a patented feature is one of several features that cause consumers to make their purchasing decisions.’” Majority Op. at 17 (quoting Apple III, 735 F.3d at 1364).
2/The majority’s original opinion stated that: “Apple did not establish that that [sic] these features were the exclusive or significant driver of customer demand, which certainly would have weighed more heavily in its favor.” Apple Inc. v. Samsung Elecs. Co., 801 F.3d 1352, 1363 (Fed. Cir. 2015), vacated, Order (Fed. Cir. Dec. 16, 2015) (emphasis added). The majority’s reissued opinion removes the words “or significant” from this sentence. Majority Op. at 17.