Case: 13-1129

Document: 68-1

Page: 1

Filed: 05/28/2013

May 28, 2013 The Honorable Jan Horbaly Clerk of the Court United States Court of Appeals for the Federal Circuit 717 Madison Place NW Washington, DC 20439 Re: Apple Inc. v. Samsung Electronics Co., No. 2013-1129

William F. Lee
+1 617 526 6556 (t) +1 617 526 5000 (f) william.lee@wilmerhale.com

Dear Mr. Horbaly: Pursuant to FRAP 28(j), Apple respectfully submits the attached opinion from Douglas Dynamics, LLC v. Buyers Products Co., No. 2011-1291 (Fed. Cir. May 21, 2013). Douglas supports Apples position that irreparable harm does not require proof that the specific patented feature drives consumer demand for the infringing products. See Apple Br. 47-60; Reply Br. 4-16. Douglas reversed the denial of a permanent injunction without applyingor even addressingany causal nexus requirement, where the patent-in-suit cover[ed] only some components of the accused [products]. Op. 10. Noting that [i]rreparable injury encompasses different types of losses including lost sales and erosion in reputation and brand distinction (id. at 10-11), this Court held that irreparable injury arose from the patentees competition with the defendants infringing products: Where two companies are in competition against one another, the patentee suffers the harmoften irreparableof being forced to compete against products that incorporate and infringe its own patented inventions. Id. at 12. Douglas further confirms, as Apple has argued (Apple Br. 36; Reply Br. 18), that mere damages will not compensate for a competitors increasing share of the market, a market which [the patentee] competes in, and a market that [the patentee] has in part created with its investment in patented technology. Op. 12-13. Douglas also shows that the balance of hardships favors Apple (Apple Br. 41-43; Reply Br. 2325), by observing that, where the infringer represents that it has a non-infringing alternative which it could easily deliver to the market, then the balance of hardships would suggest that [the defendant] should halt infringement and pursue a lawful course of market conduct. Op. 13. Finally, Douglas supports Apples position that the public interest favors injunctive relief, especially where Samsung has copied Apples patented technology. See Apple Br. 44-46; Reply Br. 25-27. This Court stated that, although the general public certainly enjoys lower prices, cheap copies of patented inventions have the effect of inhibiting innovation and incentive and

Case: 13-1129

Document: 68-1

Page: 2

Filed: 05/28/2013

May 28, 2013 Page 2

the public has a greater interest in acquiring new technology through the protections provided by the Patent Act than it has in buying cheaper knock-offs. Op. 14.

Very truly yours, /s/ William F. Lee William F. Lee

Attachment cc: Counsel of record (via ECF)