Promotion Ends Apple-Samsung Battle, But Only for Judge Koh

Apple v Samsung

President Barack Obama’s Feb. 25 nomination of Northern District of California Judge Lucy H. Koh to the U.S. Court of Appeals for the 9th Circuit confers a great honor. But maybe Judge Koh wants the seat more so that she can finally be done with the Apple v. Samsung smartphone patent wars. 

The day after Koh’s nomination, the Federal Circuit issued a decision that reversed her on Apple patent validity and Samsung infringement findings—the latest round in the ongoing district-appellate courts’ tug-of-war on the case. 

Because all patent appeals go to the Federal Circuit, Koh won’t have to deal with them if she’s confirmed for the 9th Circuit. 

On the district court, Koh has issued 18 opinions in Apple v. Samsung in less than five years. Six of those decisions have been reversed or vacated, at least in part, by the Federal Circuit. 

For Koh, the case put her at the forefront of major developments in design patent law:  for instance, smartphone ornamentation versus utility, and how to compensate for Samsung’s design patent infringement. 

There’s also no doubt that the Federal Circuit’s decision giving Apple a resounding win last May differed in tone, at least, from its 2012 reprimand of Koh’s analysis of the same issues. Samsung’s Dec. 14 petition for Supreme Court review-- still to be decided—could ratchet the battle up still another notch. 

Samsung’s petition aside, if Koh moves to the 9th Circuit, her experience handling intellectual property cases should serve the IP community well. 

Copyright disputes are particularly relevant to the 9th Circuit’s jurisdiction over Hollywood, Silicon Valley and Redmond, Wash., and Koh has ruled in at least four such disputes: 

Koh has also dealt with issues on the right of publicity: 


We’ll see if the standoff between Obama and the Senate over the next Supreme Court nominee –Republican leaders have vowed not to hold confirmation hearings –stops Koh getting her own hearing.