Kelley Drye & Warren – Last week, the Federal Circuit denied en banc review by the entire court of the three-judge panel decision in the Apple v. Samsung case that had revived the ability to obtain injunctive relief against multiple component products, such as smartphones (see our Sep. 17, 2015 post).
In doing so, the original three-judge panel (Prost, Moore and Reyna) issued an Order that withdrew their original opinion and issued a revised opinion that focuses on the patented feature being “one of several [features] that cause consumers to make their purchasing decision,” rather than the patented feature having to be “the exclusive or significant driver of customer demand” as prior decisions had intimated.
This is shown in the revision to the concluding paragraph under the “irreparable harm” factor for injunctive relief, which irreparable harm Apple had argued was caused by lost sales to Samsung’s accused infringing products that included Apple’s patented features:
Apple did not establish that these features were the exclusive or significant 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 [(Fed. Cir. 2013)]. We conclude that this factor weighs in favor of granting Apple’s injunction. [blackline showing insertions and deletions from prior opinion]
So update your current draft briefs and filings to cite to the newly revised panel opinion, rather than their prior withdrawn opinion (which withdrawn opinion was found at Apple v. Samsung, 801 F.3d 1352 (Fed. Cir. 2015)).
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