Though I haven’t yet read Apple’s motion for a preliminary injunction, Apple’s legal team must feel pretty confident in their case.  Essentially, a preliminary injunction is extraordinary equitable relief where a court orders a non-moving party to do something to prevent the threat of irreparable injury or injury to the movant.  In addition to that standard, the court must find that:  the party moving for the preliminary, the movant, is substantially like to prevail on the merits of the action; the balance of harms that may result from the granting or not granting the injunction weigh in favor of the movant; and that the preliminary injunction would serve the public interest.  That is a high hurdle.  And given that Samsung is an important competitor in the market, the court is only likely to grant a preliminary injunction against Samsung if Apple can show over Samsung’s opposition that it is substantially likely that Samsung is infringing on Apple’s IP as set forth in Apple’s Motion and that the harm that Apple is likely to suffer is greater than the harm that Samsung is likely to suffer to its legitimate interests. 

So, if the court grants Apple’s Motion, it means that Judge Koh believes, based on the Motion, Samsung’s Opposition thereto, and the parties presentation at the hearing, that Samsung is likely to lose at the trial on the merits, which means that unless Samsung can pull a rabbit out its hat or somewhere else at trial, it is going to lose. 

It is also very hard for the losing non-movant to appeal a preliminary injunction, as the 9th Circuit is only likely to dissolve the injunction if finds that Judge Koh made a clear error of law or that her findings of fact were so clearly in error that they constitute an abuse of her discretion.  Thus, the Court of Appeals will usually refuse to dissolve the injunction and require the losing non-movant to see whether it can prevail at trial on the merits.

However, Apple’s case on the merits is not greatly prejudiced if Judge Koh does not grant the injunction.  Her failure to grant the injunction simply means that Apple hasn’t met its burden of persuading her based on the standards, supra.  She might believe that it is unclear that Apple is likely to prevail on the merits or that she thinks the balance of harms weighs in Samsung’s favor, even if Apple likely has a winning case or that an injunction would not serve the public interest, again even if Apple presents a strong case.  And not granting the injunction, would then means the case would proceed, unless the parties settle, to trial.

So essentially, Michael Jacobs, Esq., Apple’s lead counsel, gets two bites at the Apple at the costs only of having to show his best or some of his best cards to Samsung and to Judge Koh.  But even a near miss can serve Apple well, if Judge Koh is left with the belief that Apple has a strong case, which could serve Apple very well on a motion for summary judgment or at trail.  But the bottom line is that Michael Jacobs would only do this, where he feels he has a very strong case.

Watch the market on Tuesday, 5 July, to see what the movers in the market think of Apple’s Motion, after they consult with their lawyers.

Dear Bosco:  I am delighted that you are giving us your legal evaluation of Apple’s Motion For Preliminary Injunction (Motion), after, I am sure, having thoroughly reviewed that Motion.  What really impresses me is that you can judge the strength of Apple’s Motion without having seen Samsung’s Opposition (Opposition) to it, which has not yet been filed with the court, and without having the results of the parties’ presentation and oral argument on the Motion and Opposition from the hearing on them, which has not yet occurred.  After, more than 20 years in practice, I can’t do that, nor do I know of any judge who can do that, and certainly none who should do that.  But here we have your confident evaluation that Apple’s Motion has no legal merit and is nothing more than a marketing stunt.  All I can say Bosco is that you are in the wrong business:  Get thee to law school and then the bar, for you shall surely amaze us all.

But let me offer this insight that is informed by a little practice.  No lawyer, especially one of the caliber of Michael Jacobs, Esq., is going to offer a motion for preliminary injunction that doesn’t have sufficient merit for at least two reasons.  First, as a practical matter, Judge Koh will be expecting Apple to present a motion that evidences a strong case.  While she may rule against Apple for reasons other than that it hasn’t show a substantial likely hood of success on the merits or because she thinks that Apple hasn’t met that high burden, she will be expecting Apple to present a strong case.  To disappoint her in that expectation will make her doubt the merit of Apple’s case and create a significantly large hole for Apple to climb out of. 

The second reason has to do with the ethical requirements of the practice of law.  The Model Rules of Professional Conduct (Rules of Conduct) and the Fed. Rules of Civil Procedure (Civil Rules) require that a lawyer may file a paper with the court only if he concludes, after reviewing it, that it has a sufficient basis in law and fact for its purpose and that he is not filing the paper for any ulterior or improper purpose, such as a marketing stunt.  If Mr. Jacobs were to violate either of those bodies of rules, Samsung could move for sanctions, or the court sua sponte could sanction Mr. Jacobs. 

And, of course, a weak Motion invites a strong Opposition from Samsung, which could persuade Judge Koh that Samsung should prevail not only on Apple’s Motion but on a motion for summary judgment.

So to file the Motion as a meritless marketing stunt, Mr Jacobs and Apple would risk and most likely cause Judge Koh to have serious doubts about Apple’s case; provide an opportunity for Samsung to file a strong opposition which could persuade Judge Koh; expose Mr. Jacobs and, perhaps, Apple to monetary sanctions; Mr. Jacobs would also be exposing himself to further discipline from the court, and Mr. Jacobs and Apple would lose all credibility with Judge Koh.  That is one damn high price to pay for a marketing stunt.  So high, in fact, that no sane lawyer would consider doing it.

Perhaps, Bosco you should stick with your day job.

Dear Bosco:  Whether Apple’s senior executives have some other motivation than protecting Apple’s IP rights in suing Samsung, I don’t know, and I don’t see how you could know such a thing either.  But the pleadings filed with the court have to do with infringement of Apple’s patents rights, and that is what the court is adjudicating.  Courts of the United States don’t have any subject matter jurisdiction to hear and decide anything about the perception of Apple or its competitors, except in so far as one sues for defamation, fraud, false advertising, and/or unfair competition, and only indirectly with unfair competition.  But neither of the parties have pled, except for unfair competition, any of those other claims.  And, unfair competition, if pled, would go to the issue of infringing Apple or Samsung’s patent rights.

So, while it may be that a victory by Apple will allow some to say Samsung is an illicit copycat, that is indirectly related to the issues being litigate in Apple v. Samsung, which all have to do with violating the parties’ rights in their respective IP.