Google HTC SAP Rackspace Red Hat Amicus Brief Supporting Samsung Against Apple

7/28/2019 Google HTC SAP Rackspace Red Hat Amicus Brief Supporting Samsung Against Apple

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No. 2013-1129

United States Court of Appealsfor 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 FORAMICI CURIAEGOOGLE, 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 LLP3000 El Camino Real

5 Palo Alto Square, 9th FloorPalo Alto, California 94306(650) 213-0300

Attorneys for Amici Curiae

May 6, 2013

Case: 13-1129 Document: 77 Page: 1 Filed: 06/05/2013


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CERTIFICATE OF INTEREST

Counsel forAmici 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 HTCCorporation.

Red Hat, Inc. has no parent corporation, and the only publicly heldcompanies 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 whollyowned 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 Warren S. Heit

Christopher J. Glancy WHITE & CASE LLP

WHITE & CASE LLP 3000 El Camino Real

1155 Avenue of the Americas 5 Palo Alto Square, 9th

Floor

New York, New York 10036 Palo Alto, California 94306

Telephone: (212) 819-8200 Telephone: (650) 213-0300

Facsimile: (212) 354-8113 Facsimile: (650) 213-8158

Dated: May 6, 2013 /s/ Christopher J. Glancy

Christopher J. Glancy



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TABLE OF CONTENTS

INTEREST OFAMICI CURIAE........................................................................................... 1ARGUMENT .............................................................................................................................. 4I. THIS COURTS CAUSAL NEXUS REQUIREMENT IS

CONSISTENT WITH eBAY....................................................................................... 4II. UNLESS INFRINGEMENT ITSELF CAUSED A SUBSTANTIAL

INJURY, THE BALANCE OF THE EQUITIES AND THE PUBLIC

INTEREST WEIGH HEAVILY AGAINST INJUNCTIVE RELIEF IN

THIS CONTEXT ........................................................................................................... 9A. By Isolating The Injury Attributable To Infringement, The Nexus

Requirement Establishes The Baseline Against Which OtherEquitable Factors Are Considered. .............................................................. 10

B. The Balance Of The Equities And The Public Interest GenerallyPreclude The Issuance Of Injunctions Against Complex Products

Based Only On The Products Inclusion Of Relatively Minor

Infringing Features. ......................................................................................... 11CONCLUSION ........................................................................................................................ 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),

affd, 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 Natl 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 Courts December 17, 2012 order denying Plaintiff-Appellant Apple Inc.s

(Apple) motion for a permanent injunction (the Order).

INTEREST OFAMICI CURIAE1

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

1Pursuant 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 thanAmici or counsel forAmici, made any monetary

contribution to the preparation or submission of the brief.



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developed the worlds 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 worlds 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 COURTS CAUSAL NEXUS REQUIREMENT ISCONSISTENT WITHEBAY

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 patentees 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 (quotingApple 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 defendants 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), affd, 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 tie-

in] 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 courts 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 non-



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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 defendants profits and the patentees damages

between the patented feature and the unpatented features . . . .).

Thus, aftereBay 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

patentees 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 patentees 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 thepatentedinvention.

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 non-

infringing 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 patentees 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 Courts 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) (citingRichardson v. Suzuki

Motor Co., 868 F.2d 1226, 1246-47 (Fed. Cir. 1989)). AftereBay,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 Apples

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 competitors infringement caused some irreparable injury, other

equitable factors weigh heavily against injunctive relief when additional, non-

infringing 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 factorsthe balance of the equities and the

public interestdepend 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 defendants 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 holders alleged irreparable harm (here, loss of market

share) stems from infringement instead of from lawful competition based on a

products 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

products 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 InterestGenerally 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 products 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 patentees 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 licensees 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 patentees perspective, an injunction

would amount to winning the lottery based on the happenstance (from the

patentees perspective) that someone else develops and markets an accused product



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that succeeds for other reasons, such as the defendants own innovations. From a

defendants 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 systems fundamental objectiveto encourage and

reward innovationon 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 Natl 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 products non-

infringing 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


1155 Avenue of the Americas

ew 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 foramici 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 DEFENDANTS-

APPELLEES 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.



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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1

CERTIFICATE OF SERVICE

I, Christopher J. Glancy, hereby certify that on May 6, 2013 the foregoing

BRIEF OFAMICI CURIAEGOOGLE 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 SamsungCharles 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


& SULLIVAN, LLP

555 Twin Dolphin Drive, 5th Floor

Redwood Shores, CA 94065

Telephone: (650) 801-5000

Facsimile: (650) 801-5100

Kathleen M. SullivanWilliam B. Adams


& SULLIVAN, LLP

51 Madison Avenue, 22nd Floor

New York, NY 10010

Telephone: (212) 849-7000



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NEWYORK 8837301 (2K)

2

Facsimile: (212) 849-7100

[email protected]

Susan R. Estrich

Michael T. Zeller


& 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. FlemingJoseph 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. CedarbaumWILMER CUTLER PICKERING

HALE AND DORR LLP

1875 Pennsylvania Avenue NW

Washington, DC 20006

(202) 663-6000



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Counsel forAmicus Nokia:

Patrick J. Flinn

Keith E. Broyles

ALSTON & BIRD LLP1201 West Peachtree Street

Atlanta, Georgia 30309

(404) 881-7000




Documents

Google HTC SAP Rackspace Red Hat Amicus Brief Supporting Samsung Against Apple