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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`SAN JOSE DIVISION
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`APPLE, INC., a California corporation,
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`Apple, Inc. (“Apple”) owns U.S. Patent Nos. 5,946,647 (the “’647 patent”); 8,046,721 (the
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`“’721 patent”); and 8,074,172 (the “’172 patent”), which each cover features that Apple contends
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`are related to the ease of using smartphones. Apple asserted these three patents and two others
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`against Samsung Electronics Co., Ltd., Samsung Electronics America, Inc., and Samsung
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`Telecommunications America, LLC (collectively, “Samsung”). On summary judgment, the Court
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`found that Samsung infringed the ’172 patent. A jury then found that Samsung also infringed the
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`’647 and ’721 patents, and awarded damages for all infringed patents. Apple now moves, based
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`only on these three patents, to enjoin Samsung from making, selling, developing, or advertising
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`infringing features in its products. See ECF No. 1895-4 (“Proposed Order”). Apple’s motion is
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`fully briefed, and the Court heard oral arguments on July 10, 2014. Having considered the parties’
`1
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`Case No.: 12-CV-00630-LHK
`ORDER DENYING APPLE’S MOTION FOR PERMANENT INJUNCTION
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`Case No.: 12-CV-00630-LHK
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`ORDER DENYING APPLE’S MOTION
`FOR PERMANENT INJUNCTION
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`[REDACTED]
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` Plaintiff,
`v.
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`SAMSUNG ELECTRONICS CO., LTD, A
`Korean corporation; SAMSUNG
`ELECTRONICS AMERICA, INC., a New York
`corporation; SAMSUNG
`TELECOMMUNICATIONS AMERICA, LLC,
`a Delaware limited liability company
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` Defendants.
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`For the Northern District of California
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`United States District Court
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`Case5:12-cv-00630-LHK Document1953 Filed08/27/14 Page2 of 42
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`arguments, the briefing, the relevant law, and the record in this case, the Court concludes that
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`Apple has not established that it is entitled to the permanent injunction it seeks. Apple’s Motion
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`for a Permanent Injunction is therefore DENIED.
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`I.
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`TECHNOLOGICAL BACKGROUND
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`Because the particular features claimed by the patents-in-suit are relevant to the Court’s
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`conclusions, the Court begins by briefly reviewing the claimed features.
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`The ’647 patent, entitled “System and Method for Performing an Action on a Structure in
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`Computer-Generated Data” and colloquially called the “quick links” patent, discloses “a system
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`and a method [that] causes a computer to detect and perform actions on structures identified in
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`computer data.” ’647 patent Abstract. The application for the ’647 patent was filed on February 1,
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`1996, and the patent issued on August 31, 1999. Asserted claim 9 depends from claim 1. Both
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`claims recite:
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`1. A computer-based system for detecting structures in data and performing
`actions on detected structures, comprising:
`an input device for receiving data;
`an output device for presenting the data;
`a memory storing information including program routines including
`an analyzer server for detecting structures in the data, and for linking actions
`to the detected structures;
`a user interface enabling the selection of a detected structure and a linked
`action; and
`an action processor for performing the selected action linked to the selected
`structure; and
`a processing unit coupled to the input device, the output device, and the
`memory for controlling the execution of the program routines.
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`9. The system recited in claim 1, wherein the user interface enables selection of an
`action by causing the output device to display a pop-up menu of the linked
`actions.
`Id. cls.1, 9. The ’647 patent discloses a system and method for recognizing when certain patterns
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`or “data structures” are present in a data set, and automatically providing optional actions for a user
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`to perform on the data structures. See id. col.2 ll.21-54. For example, the system may scan a
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`Microsoft Word document and recognize when phone numbers or email addresses appear in the
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`document. See id. col.1 ll.24-35; see also id. col.2 ll.42-53. Then, the system may link actions to
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`these structures and allow the user to select an action. Id. As an example, when an e-mail address
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`is detected in a document, the system may automatically give the user the options to send an e-mail
`2
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`Case No.: 12-CV-00630-LHK
`ORDER DENYING APPLE’S MOTION FOR PERMANENT INJUNCTION
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`For the Northern District of California
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`United States District Court
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`Case5:12-cv-00630-LHK Document1953 Filed08/27/14 Page3 of 42
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`to the identified address or to store the e-mail address in an electronic address book. Id. at col.5
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`ll.5-18. As another example, when a phone number is detected in a document, the system may give
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`the user the option to place a call to that phone number or to place the number in an electronic
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`telephone book. Id.
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`For infringement of the ’647 patent, Apple accused the Messenger (also referred to as
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`“Messaging” by the parties) and Browser applications in the Gingerbread, Ice Cream Sandwich,
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`and Jelly Bean versions of the Android operating system, as implemented on nine accused
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`Samsung products: the Admire, Galaxy Nexus, Galaxy Note, Galaxy Note II, Galaxy S II, Galaxy
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`S II Epic 4G Touch, Galaxy S II Skyrocket, Galaxy S III, and Stratosphere. See Tr. at 833:5-8,
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`839:1-6, 841:23-842:14. The jury found that all nine accused products infringe the ’647 patent.
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`See ECF No. 1884 at 9.
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`The ’721 patent, entitled “Unlocking a Device by Performing Gestures on an Unlock
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`Image” and nicknamed the “slide to unlock” patent, is generally directed to devices with touch-
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`sensitive displays that users can unlock by performing certain gestures. See ’721 patent Abstract.
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`The ’721 patent claims priority to an application filed on December 23, 2005, and issued on
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`October 25, 2011. Asserted claim 8 depends from claim 7. Both claims recite:
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`7. A portable electronic device, comprising:
`a touch-sensitive display;
`memory;
`one or more processors; and
`one or more modules stored in the memory and configured for execution by the
`one or more processors, the one or more modules including instructions:
`to detect a contact with the touch-sensitive display at a first predefined location
`corresponding to an unlock image;
`to continuously move the unlock image on the touch-sensitive display in
`accordance with movement of the detected contact while continuous contact
`with the touch-sensitive display is maintained, wherein the unlock image is
`a graphical, interactive user-interface object with which a user interacts in
`order to unlock the device; and
`to unlock the hand-held electronic device if the unlock image is moved from the
`first predefined location on the touch screen to a predefined unlock region
`on the touch-sensitive display.
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`8. The device of claim 7, further comprising instructions to display visual cues to
`communicate a direction of movement of the unlock image required to unlock
`the device.
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`Case No.: 12-CV-00630-LHK
`ORDER DENYING APPLE’S MOTION FOR PERMANENT INJUNCTION
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`3
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`For the Northern District of California
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`United States District Court
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`Id. cls.7, 8. Thus, the patent generally discloses ways to unlock a smartphone by sliding a finger
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`(for example) across the screen to “continuously move” an image to an unlocking position.
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`For infringement of the ’721 patent, Apple accused the touchscreen-based unlocking
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`mechanisms on six accused Samsung products: the Admire, Galaxy Nexus, Galaxy S II, Galaxy S
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`II Epic 4G Touch, Galaxy S II Skyrocket, and Stratosphere. See Tr. at 650:14-16, 658:17-659:4.
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`The jury found that the Admire, Galaxy Nexus, and Stratosphere infringe the ’721 patent, but that
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`the Galaxy S II, Galaxy S II Epic 4G Touch, and Galaxy S II Skyrocket did not infringe. See ECF
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`No. 1884 at 9.
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`The ’172 patent, entitled “Method, System, and Graphical User Interface for Providing
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`Word Recommendations” and colloquially called the “auto correct” patent, discusses systems for
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`suggesting replacements for text as a user types. See ’721 patent Abstract. The application for the
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`’721 patent was filed on January 5, 2007, and the patent issued on December 6, 2011. Asserted
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`claim 18 recites:
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`18. A graphical user interface on a portable electronic device with a keyboard and a
`touch screen display, comprising:
`a first area of the touch screen display that displays a current character string
`being input by a user with the keyboard; and
`a second area of the touch screen display separate from the first area that
`displays the current character string or a portion thereof and a suggested
`replacement character string for the current character string;
`wherein;
`the current character string in the first area is replaced with the suggested
`replacement character string if the user activates a key on the keyboard
`associated with a delimiter;
`the current character string in the first area is replaced with the suggested
`replacement character string if the user performs a gesture on the suggested
`replacement character string in the second area; and
`the current character string in the first area is kept if the user performs a gesture
`in the second area on the current character string or the portion thereof
`displayed in the second area.
`Id. cl.18. The ’172 patent discloses a method, system, and interface for providing word
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`recommendations to users inputting text into a portable communication device and for allowing the
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`user to select the recommended words. See generally id. at Abstract.
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`For infringement of the ’172 patent, Apple accused the word recommendation feature of the
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`Messenger application in Android as implemented on seven accused Samsung products: the
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`Admire, Galaxy Nexus, Galaxy Note, Galaxy S II, Galaxy S II Epic 4G Touch, Galaxy S II
`4
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`Case No.: 12-CV-00630-LHK
`ORDER DENYING APPLE’S MOTION FOR PERMANENT INJUNCTION
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`For the Northern District of California
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`United States District Court
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`Skyrocket, and Stratosphere. See ECF No. 1884 at 9; ECF No. 1151 at 9, 11 n.3. Before trial, the
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`Court granted summary judgment that the accused products infringe the ’172 patent, ECF No. 1151
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`at 14, and the jury awarded damages for that infringement, see ECF No. 1884 at 9.
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`II.
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`PROCEDURAL BACKGROUND
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`Apple’s current motion follows multiple rulings regarding preliminary and permanent
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`injunctions in the two patent lawsuits between Apple and Samsung in this Court, including three
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`opinions from the Federal Circuit. In its March 6, 2014 order denying Apple’s request for a
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`permanent injunction in the first lawsuit, this Court summarized the relevant proceedings in both
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`litigations, the appeals to the Federal Circuit regarding injunctions, and the Federal Circuit’s
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`guidance regarding the proper analysis for assessing injunctive relief in patent cases. See Order
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`Denying Apple’s Renewed Mot. for Permanent Injunction at 5-14, Apple, Inc. v. Samsung Elecs.
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`Co., No. 11-CV-01846-LHK (N.D. Cal. Mar. 6, 2014) (ECF No. 3015, “1846 Injunction Order”).
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`Of particular relevance are the Federal Circuit’s opinions in “Apple I” (678 F.3d 1314 (Fed. Cir.
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`2012)), “Apple II” (695 F.3d 1370 (Fed. Cir. 2012)), and “Apple III” (735 F.3d 1352 (Fed. Cir.
`2013)).1
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`Apple filed the instant lawsuit on February 8, 2012, alleging that Samsung infringed several
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`Apple patents not asserted in the first lawsuit. On the same day, Apple moved for a preliminary
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`injunction, seeking to enjoin Samsung’s accused Galaxy Nexus smartphone based on four asserted
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`patents. See ECF No. 10. This Court granted Apple’s motion as to the so-called “unified search”
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`patent, No. 8,086,604 (the “’604 patent,” which is no longer asserted), but denied Apple’s motion
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`as to the other three patents, and entered a preliminary injunction. See ECF No. 221. Samsung
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`appealed this Court’s ruling as to the ’604 patent. On appeal, the Federal Circuit reversed the
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`Court’s finding that Samsung’s alleged infringement of the ’604 patent caused Apple irreparable
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`harm and concluded that “the causal link between the alleged infringement and consumer demand
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`for the Galaxy Nexus is too tenuous to support a finding of irreparable harm.” See Apple II, 695
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`F.3d at 1376. This Court subsequently dissolved the preliminary injunction. See ECF No. 1383.
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`1
`In the 1846 Injunction Order, the Court referred to Apple III as “Apple IV.” Because the
`parties now refer to this Federal Circuit decision as “Apple III,” the Court follows suit.
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`Case No.: 12-CV-00630-LHK
`ORDER DENYING APPLE’S MOTION FOR PERMANENT INJUNCTION
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`For the Northern District of California
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`United States District Court
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`At the summary judgment stage, the Court held that Samsung infringed the ’172 patent.
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`ECF No. 1151 at 14. This case then proceeded to trial. On May 5, 2014, a jury returned a verdict
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`that nine of ten accused Samsung products infringed one or both of Apple’s ’647 and ’721 patents.
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`See ECF No. 1884 at 9. Apple sought approximately $2.1 billion in damages for infringement of
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`all five of its asserted patents, but the jury awarded Apple a total of $119,625,000.00 for
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`infringement of the three patents at issue. Id. at 8. Both parties filed motions for judgment as a
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`matter of law, challenging various portions of the jury’s verdict.
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`In accordance with the Court’s schedule for post-trial motions and briefing, Apple filed the
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`present motion on May 23, 2014. ECF No. 1895-3 (“Mot.”). Samsung filed an Opposition on June
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`6, 2014. ECF No. 1907-3 (“Opp’n”). Apple filed a Reply on June 13, 2014. ECF No. 1918
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`(“Reply”). The Court held a hearing on July 10, 2014.
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`III. LEGAL STANDARD
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`The Patent Act provides that in cases of patent infringement a court “may grant injunctions
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`in accordance with the principles of equity to prevent the violation of any right secured by patent,
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`on such terms as the court deems reasonable.” 35 U.S.C. § 283. A patentee seeking a permanent
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`injunction must make a four-part showing:
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`(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). Though injunctions were once
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`issued in patent cases as a matter of course, the U.S. Supreme Court ruled in 2006 that “broad
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`classifications” and “categorical rule[s]” were inappropriate in analyzing whether to grant a
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`permanent injunction. Id. at 393. “An injunction is a drastic and extraordinary remedy, which
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`should not be granted as a matter of course.” Monsanto Co. v. Geertson Seed Farms, 561 U.S.
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`139, 165 (2010).
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`The Court evaluates each of the four eBay factors in light of the Federal Circuit’s guidance
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`and determines whether, on balance, the principles of equity support issuance of a permanent
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`injunction in this case.
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`Case No.: 12-CV-00630-LHK
`ORDER DENYING APPLE’S MOTION FOR PERMANENT INJUNCTION
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`6
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`For the Northern District of California
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`United States District Court
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`IV. DISCUSSION
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`A.
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`Irreparable Harm
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`“[T]o satisfy the irreparable harm factor in a patent infringement suit a patentee must
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`establish both of the following requirements: 1) that absent an injunction, it will suffer irreparable
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`harm, and 2) that a sufficiently strong causal nexus relates the alleged harm to the alleged
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`infringement.” Apple II, 695 F.3d at 1374. The Federal Circuit has explained that “the purpose of
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`the causal nexus requirement is to show that the patentee is irreparably harmed by the infringement.
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`Without such a showing, it is reasonable to conclude that a patentee will suffer the same harm with
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`or without an injunction, thus undermining the need for injunctive relief in the first place.” Apple
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`III, 735 F.3d at 1363 (emphasis in original). This test “reflects general tort principles of causation
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`and applies equally to the preliminary and permanent injunction contexts.” Id. at 1361.
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`With respect to the first prong of the irreparable harm standard, Apple asserts two forms of
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`irreparable harm. Apple argues that it will suffer irreparable damage to its reputation as an
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`innovator, similar to the harm suffered by the patentee in Douglas Dynamics, LLC v. Buyers
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`Products Co., 717 F.3d 1336, 1344-45 (Fed. Cir. 2013). Apple also contends that it will suffer
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`irreparable harm from sales-based losses.
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`With respect to the second prong of the irreparable harm standard, Apple argues that trial
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`evidence demonstrated a causal nexus between the alleged sales-based harm and Samsung’s
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`infringing behavior. Mot. at 12. Apple argues, however, that when reputational harm is alleged,
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`the second prong of the irreparable harm test falls away and no separate proof of causal nexus is
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`required. Reply at 2. Despite Apple II’s seemingly unambiguous language (“a patentee must
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`establish both of the following requirements”), Apple argues that in Douglas Dynamics, the
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`Federal Circuit “did not require separate proof of a causal nexus—because irreparable harm to the
`patentee’s reputation necessarily flows from infringement[.]” Id. (emphasis in original).
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`1.
`Causal Nexus and Reputational Harm
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`The Court first addresses Apple’s assertions that, under Douglas Dynamics, reputational
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`harm is not subject to the “causal nexus” requirement. As set forth below, the Court finds no
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`Case No.: 12-CV-00630-LHK
`ORDER DENYING APPLE’S MOTION FOR PERMANENT INJUNCTION
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`7
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`For the Northern District of California
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`United States District Court
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`reason to depart from the Federal Circuit’s guidance that a patentee must demonstrate a causal
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`nexus between infringement and any alleged irreparable harm—including injury to reputation.
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`The Federal Circuit has repeatedly stated that the causal nexus inquiry is required to show
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`irreparable harm. In Apple II, the Federal Circuit stated that “although the irreparable harm and the
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`causal nexus inquiries may be separated for the ease of analysis, they are inextricably related
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`concepts.” 695 F.3d at 1374 (emphasis added). In Apple III, the Federal Circuit further observed:
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`Apple proposes that because no single equitable factor in the injunction analysis
`is dispositive, “[a] strong showing of irreparable harm should offset comparatively
`weak evidence of causal nexus, and vice-versa.” Apple Br. 60. Like Apple’s first
`argument, this argument seems to be premised on the mistaken notion that the
`causal nexus is a separate factor from irreparable harm. As we have explained,
`however, the causal nexus requirement is part of the irreparable harm factor.
`Without a showing of causal nexus, there is no relevant irreparable harm. In other
`words, there cannot be one without the other.
`735 F.3d at 1363 (emphases added). Furthermore, without the causal nexus requirement, a court
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`cannot distinguish “between irreparable harm caused by patent infringement and irreparable harm
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`caused by otherwise lawful competition.” Id. at 1361; see also Hon. Kathleen O’Malley,
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`Interesting Times at the Federal Circuit, 63 Am. U.L. Rev. 949, 956 (2014) (“[W]e have explained
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`– and outlined the contours of the requirement – that there must be some causal nexus between an
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`infringed feature in a product and the consumer demand for that product before a permanent
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`injunction barring that product can issue.”).
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`There is no reason to forego this analysis in the context of reputational harm. Even if harm
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`will be done to Apple’s reputation, Apple is not entitled to an injunction if that harm originates
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`from some source other than Samsung’s infringing behavior. For example, it is possible that
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`Apple’s reputation as an “innovator” could be harmed if Samsung’s noninfringing features are
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`perceived as innovative, but that would not justify an injunction.
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`Apple argues that the Federal Circuit did not require proof of causal nexus in Douglas
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`Dynamics, “presumably because that type of reputational harm flows directly from the mere fact of
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`infringement.” Mot. at 5. In Douglas Dynamics, however, the defendant did not challenge the
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`existence of a causal nexus between the infringing behavior and the alleged harm. Indeed, the
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`Federal Circuit concluded that the patentee “has suffered irreparable injury from [defendant’s]
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`Case No.: 12-CV-00630-LHK
`ORDER DENYING APPLE’S MOTION FOR PERMANENT INJUNCTION
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`8
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`For the Northern District of California
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`United States District Court
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`infringement.” 717 F.3d at 1345 (emphasis added). Apple mistakenly asserts that the defendant
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`there “argued that the patentee could not prove irreparable harm because the patents ‘cover only
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`some components of the accused snowplow assemblies.’” Reply at 3 (quoting Douglas Dynamics,
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`717 F.3d at 1343). Apple relies on language from the Douglas Dynamics opinion that did not
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`concern causal nexus. It appears that the “some components” argument to which the Federal
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`Circuit referred did not dispute the cause of the alleged harm to the patentee, but rather the degree
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`of that harm. See Douglas Dynamics, 2012 WL 2375012 at *48 (Defendant Cross-Appellant’s
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`Brief) (“[Patentee] cannot demonstrate that it is suffering significant—much less irreparable—
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`harm from sales of [infringer’s] snowplows.”). Because the issue was not raised, the fact that the
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`Federal Circuit did not explicitly address causal nexus in Douglas Dynamics cannot be interpreted
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`as an abrogation of the causal nexus requirement in the context of alleged reputational harm.
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`Later, in Apple III, the Federal Circuit implicitly confirmed this interpretation of Douglas
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`Dynamics, observing that causal nexus was not raised in Douglas Dynamics. In Apple III, Apple
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`argued that the causal nexus requirement should not be applied in the context of a permanent
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`injunction, citing a number of cases, including Douglas Dynamics. 735 F.3d at 1361-62. The
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`Federal Circuit rejected Apple’s argument, listing the cases cited by Apple and observing: “there is
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`no indication that any of the infringers in those cases challenged the existence of a causal nexus
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`between their infringement and the patentees’ alleged harm.” Id. at 1362 (emphasis added). Apple
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`points to the portion of the Apple III opinion where the Federal Circuit distinguished Douglas
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`Dynamics specifically on the grounds that damage to reputation was “a type of harm not asserted
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`by Apple” in Apple III. Id. Apple argues that because it does assert damage to reputation in the
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`instant case, Apple III’s distinction of Douglas Dynamics is inapposite. Apple errs, however, in
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`presuming that this is the only basis on which Apple III distinguishes Douglas Dynamics. The
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`language on which Apple relies is from a portion of the Federal Circuit’s opinion that distinguishes
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`Douglas Dynamics from the facts in Apple III “on other grounds as well.” Id. (emphasis added).
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`In Apple III, the Federal Circuit rejected Apple’s reading of Douglas Dynamics for the same reason
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`that the instant Court rejects it today—in Douglas Dynamics, causal nexus was never in dispute.
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`Moreover, Apple argues that Douglas Dynamics implicitly abrogated the causal nexus requirement,
`9
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`Case No.: 12-CV-00630-LHK
`ORDER DENYING APPLE’S MOTION FOR PERMANENT INJUNCTION
`
`For the Northern District of California
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`United States District Court
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`Case5:12-cv-00630-LHK Document1953 Filed08/27/14 Page10 of 42
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`despite the court’s express guidance that causal nexus and irreparable harm “are inextricably
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`related.” It is highly unlikely that the Federal Circuit intended to eliminate an “inextricable”
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`requirement without comment, further analysis, or argument by the parties.
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`Apple’s claim that “the mere fact of infringement” demonstrates irreparable reputational
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`harm also suggests the type of “categorical rule” that the U.S. Supreme Court rejected. See eBay,
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`547 U.S. at 393. For injury relating to either lost sales or reputation, Apple must demonstrate that
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`it will suffer irreparable harm if an injunction does not issue, and demonstrate that there is a causal
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`nexus between the alleged harm and Samsung’s infringement of Apple’s patents.
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`2.
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`Harm to Apple’s Reputation
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`Apple argues that, absent an injunction, it will suffer the same type of irreparable harm to
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`“reputation and brand” that warranted an injunction in Douglas Dynamics. Mot. at 5. Specifically,
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`Apple argues that Samsung’s infringement erodes Apple’s reputation in multiple respects,
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`“including by tainting Apple’s reputation as an innovator, by leading customers and competitors to
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`believe that Apple is not entitled to enforce its patent rights (even when it prevails on its
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`infringement claims), and by disrupting Apple’s attempts to maintain exclusivity over its patented
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`inventions.” Id. at 11. Samsung disputes both irreparable harm and causal nexus, and further
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`argues that Apple’s claim for damage to its reputation has been waived by Apple. See Opp’n at 8.
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`This Court finds that Apple did not waive its arguments regarding reputational harm, but
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`determines that Apple has not met its burden to show irreparable harm to its reputation or goodwill
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`without an injunction, and has not demonstrated a causal nexus between Samsung’s infringement
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`and any alleged reputational injury.
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`a. Waiver
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`In Apple’s previous motion for a preliminary injunction in this matter, Apple argued that
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`Samsung’s infringement of “key distinguishing features” diluted the “critical distinctiveness of
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`Apple’s products and goodwill associated with those products.” Apple Mot. for Preliminary
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`Injunction (ECF No. 10) at 24. In response to that motion, this Court observed that “[l]oss of
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`goodwill, as well as damage to reputation, can support a finding of irreparable harm.” ECF No.
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`221 at 76 (citing Celsis In Vitro, Inc. v. CellzDirect, Inc., 664 F.3d 922, 930 (Fed. Cir. 2012)).
`10
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`Case No.: 12-CV-00630-LHK
`ORDER DENYING APPLE’S MOTION FOR PERMANENT INJUNCTION
`
`For the Northern District of California
`
`United States District Court
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`

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`Case5:12-cv-00630-LHK Document1953 Filed08/27/14 Page11 of 42
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`However, this Court found that even if Apple could establish a “reputation for innovativeness,” a
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`likelihood of irreparable harm had not been shown at that time because “Apple has presented no
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`evidence explaining how the presence in the market of an infringing product . . . erodes that
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`goodwill.” Id. at 77.
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`Despite Apple’s arguments during the preliminary injunction phase, Samsung asserts that
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`Apple has since waived any claim for irreparable harm based on loss of goodwill or damage to
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`Apple’s reputation as an “innovator.” Opp’n at 8. Samsung relies on Apple’s alleged failure to
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`include reputational harm in Apple’s response to Samsung’s Interrogatory No. 10, which requested
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`“the complete factual and legal basis” for Apple’s claim to injunctive relief, including “what
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`irreparable injury APPLE has suffered . . . .” Fazio Decl. Ex. 2 (ECF No. 1907-10) at 65. Even
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`assuming that Apple needed to re-raise its preliminary injunction arguments regarding reputational
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`harm, Samsung’s waiver argument fails because Apple referenced reputational harm in its response
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`to Samsung’s Interrogatory No. 10. Specifically, Apple’s response to Interrogatory No. 10
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`incorporates “by reference as if fully set forth herein all facts and evidence contained or identified
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`in Apple’s Motion for Preliminary Injunction. . . .” Id. at 66-67. This incorporation notified
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`Samsung that Apple intended to continue asserting the same type of harm that was alleged during
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`the preliminary injunction phase, including reputational harm.
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`Even if this reference was not sufficient to preserve Apple’s claim, Apple also served a
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`“Third Supplemental Response to Interrogatory No. 10,” in which Apple provided “[a]dditional
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`evidence to show Apple’s entitlement to injunctive relief, including the irreparable injury Apple
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`has suffered. . . .” Id. at 73. Apple stated that such harm is the subject of various expert opinions,
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`listed in the Supplemental Response and “incorporated by reference.” Id. at 74. Apple
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`incorporated by reference the “Declaration of Christopher Vellturo, PH.D., dated February 8, 2012
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`and all exhibits, appendices, errata, and supplementations thereto.” Id. That Declaration, provided
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`initially in support of the motion for a preliminary injunction, discloses the “Irreparable Injury Due
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`to Harm to Apple’s Goodwill Resulting from Samsung’s Infringement.” Vellturo 2012 Decl. (ECF
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`Nos. 12-14) ¶¶ 96-98 (discussing the “goodwill Apple has built with end users,” relying on surveys
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`and reports in the popular press). Samsung argues that these paragraphs are merely “conclusory”
`11
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`Case No.: 12-CV-00630-LHK
`ORDER DENYING APPLE’S MOTION FOR PERMANENT INJUNCTION
`
`For the Northern District of California
`
`United States District Court
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`Case5:12-cv-00630-LHK Document1953 Filed08/27/14 Page12 of 42
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`and are “insufficient to cure Apple’s waiver by failing to raise this theory in response to Samsung’s
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`Interrogatory.” Opp’n at 8 n.10. While Samsung is correct that these paragraphs standing alone do
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`not suffice to prove that Apple will in fact suffer irreparable harm, these references were sufficient
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`to preserve the issue. The Court rejects Samsung’s waiver argument.
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`b.
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`Evidence of Reputational Harm
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`To demonstrate irreparable reputation-based harm, Apple must first demonstrate that it has
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`goodwill or reputation that could be the subject of damage. Apple argues that it established a
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`reputation among consumers as an “innovator.” Mot. at 6. Dr. Vellturo opined that the “distinctive
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`user experience Apple created and nurtured . . . is a critical determinant in the value of the Apple
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`brand,” and cited survey evidence indicating that
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` Vellturo 2012 Decl. ¶ 96.
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`Dr. Vellturo further noted popular press articles ranking Apple first in a list of the world’s most
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`innovative firms. Id. ¶ 97. Samsung leaves this contention largely unrebutted. Indeed, Samsung’s