United States Court of Appeals 

for the Federal Circuit ______________________ 

APPLE INC., A CALIFORNIA CORPORATION,

Plaintiff-Appellant

v.

SAMSUNG ELECTRONICS CO., LTD., A KOREAN 

CORPORATION, SAMSUNG ELECTRONICS 

AMERICA, INC., A NEW YORK CORPORATION, 

SAMSUNG TELECOMMUNICATIONS AMERICA, 

LLC, A DELAWARE LIMITED LIABILITY 

COMPANY,

Defendants-Appellees

______________________ 

2014-1802

______________________ 

Appeals from the United States District Court for the 

Northern District of California in No. 5:12-cv-00630-LHK, 

Judge Lucy H. Koh.

______________________ 

Decided: September 17, 2015

______________________ 

WILLIAM F. LEE, Wilmer Cutler Pickering Hale and 

Dorr LLP, Boston, MA, argued for plaintiff-appellant. 

Also represented by SARAH R. FRAZIER, LAUREN B.

FLETCHER, RICHARD WELLS O’NEILL, MARK CHRISTOPHER 

FLEMING, ANDREW J. DANFORD; JAMES QUARLES, III,

THOMAS GREGORY SPRANKLING, Washington, DC; MARK D. 

SELWYN, Palo Alto, CA; RACHEL KREVANS, CHRISTOPHER 
2 APPLE INC. v. SAMSUNG ELECTRONICS CO., LTD. 

ROBINSON, NATHANIEL BRYAN SABRI, Morrison & Foerster, 

LLP, San Francisco, CA; ERIK JEFFREY OLSON, Palo Alto, 

CA.

KATHLEEN M. SULLIVAN, Quinn Emanuel Urquhart & 

Sullivan, LLP, New York, NY, argued for defendantappellees. Also represented by WILLIAM ADAMS; BRIAN 

COSMO CANNON, VICTORIA FISHMAN MAROULIS, KEVIN P.B.

JOHNSON, Redwood Shores, CA; SCOTT L. WATSON,

MICHAEL THOMAS ZELLER, JOHN B. QUINN, Los Angeles, 

CA; KEVIN ALEXANDER SMITH, San Francisco, CA.

MIKE MCKOOL, McKool Smith, P.C., Dallas TX, for 

amicus curiae Ericsson Inc. Also represented by 

THEODORE STEVENSON, III; JOHN BRUCE CAMPBELL, JOEL 

LANCE THOLLANDER, Austin, TX. 

JOHN D. HAYNES, Alston & Bird LLP, Atlanta, GA, for 

amici curiae Nokia Corporation, Nokia USA, Inc. Also 

represented by PATRICK J. FLINN; RYAN W. KOPPELMAN, 

East Palo, CA. 

MATTHEW SCHRUERS, Computer & Communications 

Industry Association, Washington, DC, for amicus curiae 

Computer & Communications Industry Association. 

JOSEPH CARL CECERE, JR., Cecere PC, Dallas, TX, for 

amicus curiae The National Black Chamber of Commerce. 

KEVIN MCGANN, White & Case LLP, New York, NY, 

for amici curiae Google Inc., HTC Corporation, HTC 

America, Inc., LG Electronics, Inc., Rackspace Hosting, 

Inc., Red Hat, Inc., SAP America, Inc. Also represented by 

CHRISTOPHER J. GLANCY; WARREN S. HEIT, Palo Alto, CA. 

______________________ 

Before PROST, Chief Judge, MOORE, and REYNA, Circuit Judges.
APPLE INC. v. SAMSUNG ELECTRONICS CO., LTD. 3

Opinion for the court filed by Circuit Judge MOORE, in 

which Circuit Judge REYNA joins.

Concurring opinion filed by Circuit Judge REYNA. 

Dissenting opinion filed by Chief Judge PROST. 

MOORE, Circuit Judge. 

Apple Inc. appeals from an order of the district court 

denying Apple’s request for a permanent injunction 

against Samsung Electronics Company, Ltd.; Samsung 

Electronics America, Inc.; and Samsung Telecommunications America, LLC (collectively, “Samsung”). We vacate

and remand for further proceedings. 

BACKGROUND

In 2007, Apple introduced the iPhone, revolutionizing 

the cell phone market. To develop the iPhone, Apple 

invested billions of dollars over several years—investment 

that came with significant risk. J.A. 10424–26, 10585–98. 

Indeed, Apple executives referred to the iPhone as a “you 

bet your company” product because of the uncertainty 

associated with launching an untested product line in a 

new market. J.A. 10425–26, 10451–52.

To protect the inventions developed as a result of this 

investment, Apple applied for and received patents covering much of the innovative technology incorporated into 

the iPhone. Apple’s patents are numerous and include

U.S. Patent Nos. 5,946,647; 8,046,721; and 8,074,172, the 

patents at issue in this appeal. Claim 8 of the ’721 patent 

claims a touchscreen device that unlocks when the user 

makes contact with an “unlock image” and moves that 

image to a second, predefined location. ’721 patent col. 19 

l. 51 – col. 20 l. 12. Although seemingly straightforward, 

Apple considered this feature so core to the Apple iPhone 

user experience that it opened the first iPhone ad with 

imagery illustrating the operation of this “slide to unlock” 

feature. J.A. 10433–34, 21014. Claim 9 of the ’647 patent 
4 APPLE INC. v. SAMSUNG ELECTRONICS CO., LTD. 

claims a system that detects “data structures” within text 

and generates links to specific actions that can be performed for each type of detected structure—for example, 

detecting a phone number in a text message and creating 

a link that would allow the user to dial the phone number 

or store it in an address book. ’647 patent col. 7 ll. 52–54, 

fig.7. And claim 18 of the ’172 patent claims a method for 

automatically correcting spelling errors on touchscreen 

devices. ’172 patent col. 12 l. 49 – col. 13 l. 4. 

The iPhone was undisputedly successful. After its release, reviewers praised a number of features on the 

iPhone, including its multitouch screen, software, ease of 

use, and overall user experience. Trial Transcript Day 2 

at 436–40, Apple, Inc. v. Samsung Elecs. Co., No. 12-CV00630-LHK (N.D. Cal. 2014) (No. 1622). Other companies 

followed. Samsung, in particular, developed competing 

smartphones. Internal Samsung documents show that 

Samsung “paid close attention to, and tried to incorporate” some of Apple’s patented technology, which was 

“indicative of copying by Samsung.” Apple, Inc. v. Samsung Elecs. Co., No. 12-CV-00630-LHK, 2014 WL 

7496140, at *14 (N.D. Cal. Aug. 27, 2014) (“Injunction 

Order”). Today, Apple and Samsung are fierce competitors in the smartphone and tablet market. Id. at *8.

The instant appeal springs from a suit filed by Apple 

against Samsung in February 2012 alleging infringement 

of five patents directed to smartphone and tablet interfaces, including the ’721 patent, the ’647 patent, and the ’172 

patent. The district court held on summary judgment 

that Samsung infringed the ’172 patent. The case proceeded to trial, and a jury found that nine Samsung 

products infringed one or both of Apple’s ’647 and ’721 

patents. The jury awarded Apple a total of $119,625,000 

for Samsung’s infringement of the three patents.
APPLE INC. v. SAMSUNG ELECTRONICS CO., LTD. 5

Following the verdict, Apple filed a motion seeking a 

permanent injunction that would bar Samsung from, inter 

alia, making, using, selling, developing, advertising, or 

importing into the United States software or code capable 

of implementing the infringing features in its products. 

That is, Apple did not seek to enjoin Samsung’s infringing 

smartphones and tablets, but only the infringing features. 

Moreover, Apple’s proposed injunction included a 30-day 

“sunset period” that would stay enforcement of the injunction until 30 days after it was entered by the district 

court, during which Samsung could design around the 

infringing features. This “sunset period” coincided with 

Samsung’s representations at trial that it could remove 

the infringing features from its products quickly and 

easily. Injunction Order at *20–22.

Despite the narrowness of Apple’s proposed injunction, 

the district court denied Apple’s motion, finding that 

Apple had not shown that it would suffer irreparable 

harm without an injunction. Id. at *23. Predicated 

entirely on this finding, the district court reasoned that 

Apple could not establish that monetary damages were 

inadequate. Id. at *19. Although the district court found 

that the public interest favored Apple’s request and that 

the narrowness of Apple’s proposed injunction tilted the 

balance of hardships in Apple’s favor, it determined that 

these factors did not overcome Apple’s lack of irreparable 

harm. Id. at *23. Apple appealed. We have jurisdiction 

under 28 U.S.C. § 1295(a)(1).

DISCUSSION

The Patent Act provides a patentee with the “right to 

exclude others from making, using, offering for sale, or 

selling the [patented] invention.” 35 U.S.C. § 154(a)(1). 

This right has its roots in the U.S. Constitution’s Intellectual Property Clause, which refers to inventors’ “exclusive 

Right to their respective . . . Discoveries.” U.S. Const. art. 
6 APPLE INC. v. SAMSUNG ELECTRONICS CO., LTD. 

I, § 8, cl. 8. In furtherance of this right to exclude, district 

courts “may grant injunctions in accordance with the 

principles of equity to prevent the violation of any right 

secured by patent, on such terms as the court deems 

reasonable.” 35 U.S.C. § 283. “[N]ot surprising[ly], given 

the difficulty of protecting a right to exclude through 

monetary remedies that allow an infringer to use an

invention against the patentee’s wishes,” historically 

courts have “granted injunctive relief upon a finding of 

infringement in the vast majority of patent cases.” eBay 

Inc. v. MercExchange, L.L.C., 547 U.S. 388, 395 (2006)

(Roberts, C.J., concurring) (emphasis in original). 

A party seeking a permanent injunction must demonstrate: 

(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.

Id. at 391 (majority opinion). The decision to award or 

deny permanent injunctive relief lies within the equitable 

discretion of the district court; these traditional equitable 

principles do not permit the adoption of “certain expansive principles suggesting that injunctive relief could not 

issue in a broad swath of cases.” Id. at 391, 393. The 

district court’s decision is reviewable for abuse of discretion. Id. at 391. A court abuses its discretion when it 

“ma[kes] a clear error of judgment in weighing relevant 

factors or exercise[s] its discretion based upon an error of 

law or clearly erroneous factual findings.” Innogenetics, 

N.V. v. Abbott Labs., 512 F.3d 1363, 1379 (Fed. Cir. 2008). 

We review the district court’s conclusion as to each eBay 

factor for abuse of discretion and its underlying factual 
APPLE INC. v. SAMSUNG ELECTRONICS CO., LTD. 7

findings for clear error. i4i Ltd. P’ship v. Microsoft Corp., 

598 F.3d 831, 861 (Fed. Cir. 2010).

A. Irreparable Harm

To satisfy the first eBay factor, the patentee must 

show that it is irreparably harmed by the infringement. 

This requires proof that a “causal nexus relates the alleged harm to the alleged infringement.” Apple Inc. v. 

Samsung Elecs. Co., 695 F.3d 1370, 1374 (Fed. Cir. 2012) 

(“Apple II”). This just means that there must be proof 

that the infringement causes the harm. 

Apple argued to the district court that it was irreparably harmed by Samsung’s infringement due to damage 

to its reputation as an innovator, lost market share, and 

lost downstream sales. Injunction Order at *6, *11. The 

district court rejected Apple’s arguments regarding irreparable harm and found that Apple had not shown that a 

causal nexus connected Samsung’s infringement to these 

alleged injuries. Id. at *8–9, *11–16. On appeal, Apple 

argues that the district court erred in a number of ways

with respect to this eBay factor. First, Apple argues that 

the court should not have required Apple to prove that a 

causal nexus linked Samsung’s infringement to Apple’s 

harms because Apple’s proposed injunction was limited to

the infringing features alone, not the products as a whole. 

Apple also argues that the court erred when it found that 

Apple did not suffer irreparable harm stemming from its 

sales-based losses and from harm to its reputation as an 

innovator due to Samsung’s infringement. We address 

each of Apple’s arguments in turn. 

1. Causal Nexus Requirement

Apple claims that “[t]he purpose and substance of the 

causal nexus requirement are necessarily satisfied in this 

circumstance because there is no risk that Apple might be 

‘leveraging its patent for competitive gain beyond that 

which the inventive contribution and value of the patent 
8 APPLE INC. v. SAMSUNG ELECTRONICS CO., LTD. 

warrant.’” Appellant’s Br. 33 (quoting Apple, Inc. v. 

Samsung Elecs. Co., 735 F.3d 1352, 1361 (Fed. Cir. 2013)

(“Apple III”) (alterations omitted)). Apple argues that our 

discussion of causal nexus to date has been limited to 

cases where the patentee sought a product-based injunction. See Apple III, 735 F.3d at 1352; Apple II, 695 F.3d at 

1375–76; Apple, Inc. v. Samsung Elecs. Co., 678 F.3d 

1314, 1324 (Fed. Cir. 2012) (“Apple I”). Apple asserts that

there is no causal nexus requirement when the patentee 

is seeking, as in this case, a narrow injunction, limited to 

the infringing features. 

Apple misunderstands the purpose of the causal nexus requirement. Although we stated in Apple II that the 

causal nexus requirement “informs whether the patentee’s allegations of irreparable harm are pertinent to the 

injunctive relief analysis, or whether the patentee seeks 

to leverage its patent for competitive gain beyond that 

which the inventive contribution and value of the patent 

warrant,” this statement was incomplete. Apple II, 695 

F.3d at 1375. The causal nexus requirement ensures that 

an injunction is only entered against a defendant on 

account of a harm resulting from the defendant’s wrongful 

conduct, not some other reason. For example, it ensures 

that an injunction is not entered on account of “irreparable harm caused by otherwise lawful competition.” Apple 

III, 735 F.3d at 1361. Whether a patentee’s irreparable 

harm stems from infringement of its patents is entirely 

independent of the scope of the proposed injunction. 

And while, in the past, we have only had occasion to 

require proof of causal nexus for product-based injunctions, we have also rejected Apple’s argument that narrowing the proposed injunction can eliminate the causal 

nexus requirement. In Apple III, we explained that, while

narrowing a proposed injunction by delaying it so that the 

infringer could design around the infringing features 

would make it “more likely to prevent only infringing 
APPLE INC. v. SAMSUNG ELECTRONICS CO., LTD. 9

features rather than the sale of entire products,” it did not 

“show that the patentee is irreparably harmed by the 

infringement.” Id. at 1363 (emphasis in original). The 

same is true here. That Apple’s proposed injunction 

applies only to infringing features says nothing about 

whether Apple is irreparably harmed by Samsung’s 

infringement. The purpose of the causal nexus requirement is to establish the link between the infringement 

and the harm, to ensure that there is “some connection” 

between the harm alleged and the infringing acts. Id. at 

1364. Thus, a causal nexus linking the harm and the 

infringing acts must be established regardless of whether 

the injunction is sought for an entire product or is narrowly limited to particular features.

To be sure, the scope of an injunction plays a role in 

determining whether that injunction is awarded. For 

example, it is crucial when considering the final two 

factors of the eBay test. Here, the district court did not

err by requiring Apple to satisfy the causal nexus requirement to show irreparable harm. 

2. Sales-Based Harm

Apple argues that the district court erred in finding 

that Apple did not suffer irreparable harm due to lost 

market share and lost downstream sales stemming from

Samsung’s infringement. The district court noted that it 

was undisputed that Apple lost market share and downstream sales to Samsung. Injunction Order at *11. It 

was also undisputed that “Apple and Samsung compete 

directly in the market for smartphones and tablets” and 

that “this competition affects [Apple’s] downstream sales 

because of so-called ‘ecosystem’ effects, where one company’s customers will continue to buy that company’s products and recommend them to others.” Id. Moreover, the 

court wrote that the record established that “the competition between Apple and Samsung was ‘fierce’” and that 

“Apple was Samsung’s ‘largest smartphone competitor’ in 
10 APPLE INC. v. SAMSUNG ELECTRONICS CO., LTD. 

the U.S. market.” Id. Because “[w]here two companies 

are in competition against one another, the patentee 

suffers the harm—often irreparable—of being forced to 

compete against products that incorporate and infringe its 

own patented inventions,” id. (quoting Douglas Dynamics, 

LLC v. Buyers Prods. Co., 717 F.3d 1336, 1345 (Fed. Cir. 

2013)), the court found that “[t]he presence of direct 

competition between Apple and Samsung in the 

smartphone market weighs in favor of finding irreparable 

harm,” id. 

Despite these findings, the district court found that 

Apple failed to demonstrate irreparable harm due to lost 

sales because it failed to show a causal nexus between the 

infringement and the lost sales. That is, according to the 

district court, Apple did not show that the infringing 

features “drive consumer demand for Samsung’s infringing products.” Id. at *13. Here, the district court erred. 

When a patentee alleges it suffered irreparable harm 

stemming from lost sales solely due to a competitor’s 

infringement, a finding that the competitor’s infringing 

features drive consumer demand for its products satisfies 

the causal nexus inquiry. In that case, the entirety of the 

patentee’s alleged harm weighs in favor of injunctive 

relief. Such a showing may, however, be nearly impossible from an evidentiary standpoint when the accused 

devices have thousands of features, and thus thousands of 

other potential causes that must be ruled out. Nor does 

the causal nexus requirement demand such a showing. 

Instead, it is a flexible analysis, as befits the discretionary 

nature of the four-factor test for injunctive relief. We 

have explained that proving a causal nexus requires the 

patentee to show “some connection” between the patented 

features and the demand for the infringing products. 
APPLE INC. v. SAMSUNG ELECTRONICS CO., LTD. 11

Apple III, 735 F.3d at 1364.1 Thus, in a case involving

phones with hundreds of thousands of available features, 

it was legal error for the district court to effectively require Apple to prove that the infringement was the sole 

cause of the lost downstream sales. The district court 

should have determined whether the record established

that a smartphone feature impacts customers’ purchasing 

decisions. Apple III, 735 F.3d at 1364. Though the fact 

that the infringing features are not the only cause of the 

lost sales may well lessen the weight of any alleged irreparable harm, it does not eliminate it entirely. To say 

1 As we explained in Apple III, “some connection” 

between the patented feature and consumer demand for 

the products may be shown in “a variety of ways,” including, for example, “evidence that a patented feature is one 

of several features that cause consumers to make their 

purchasing decisions,” “evidence that the inclusion of a 

patented feature makes a product significantly more 

desirable,” and “evidence that the absence of a patented 

feature would make a product significantly less desirable.” Id. These examples do not delineate or set a floor on 

the strength of the connection that must be shown to 

establish a causal nexus; rather, they are examples of 

connections that surpass the minimal connection necessary to establish a causal nexus. Apple III included a

fourth example to demonstrate a connection that does not 

establish a causal nexus—where consumers are only 

willing “to pay a nominal amount for an infringing feature.” Id. at 1368 (using example of $10 cup holder in 

$20,000 car). There is a lot of ground between the examples that satisfy the causal nexus requirement and the 

example that does not satisfy this requirement. The 

required minimum showing lies somewhere in the middle, 

as reflected by the “some connection” language. 

 
12 APPLE INC. v. SAMSUNG ELECTRONICS CO., LTD. 

otherwise would import a categorical rule into this analysis. 

The right to exclude competitors from using one’s 

property rights is important. And the right to maintain 

exclusivity—a hallmark and crucial guarantee of patent 

rights deriving from the Constitution itself—is likewise 

important. “Exclusivity is closely related to the fundamental nature of patents as property rights.” Douglas 

Dynamics, 717 F.3d at 1345. And the need to protect this 

exclusivity would certainly be at its highest when the 

infringer is one’s fiercest competitor. Essentially barring 

entire industries of patentees—like Apple and other 

innovators of many-featured products—from taking 

advantage of these fundamental rights is in direct contravention of the Supreme Court’s approach in eBay. 547 

U.S. at 393 (“[E]xpansive principles suggesting that 

injunctive relief could not issue in a broad swath of cases . . . cannot be squared with the principles of equity 

adopted by Congress.”). 

The district court thus erred when it required Apple 

to prove that the infringing features were the exclusive or 

predominant reason why consumers bought Samsung’s 

products to find irreparable harm. See Apple III, 735 F.3d 

at 1364 (explaining that “[c]onsumer preferences are too 

complex—and the principles of equity are too flexible” for 

a patentee to have to show that patented features are the 

“one and only reason for consumer demand”). Instead, the 

district court should have considered whether there is 

“some connection” between the patented features and the 

demand for Samsung’s products. Id. That is, the district 

court should have required Apple to show that the patented features impact consumers’ decisions to purchase 

the accused devices. Id. (explaining that causal nexus can 

be shown with evidence that “a patented feature is one of 

several features that cause consumers to make their 

purchasing decisions”). 
APPLE INC. v. SAMSUNG ELECTRONICS CO., LTD. 13

The record here establishes that these features do influence consumers’ perceptions of and desire for these 

products. The district court wrote that there was evidence that Samsung valued the infringing features, 

including evidence that Samsung “paid close attention to, 

and tried to incorporate, certain iPhone features,” which

was “indicative of copying.” Injunction Order at *14. This 

included evidence that Samsung had copied the “slide to 

unlock” feature claimed in the ’721 patent, such as “internal Samsung documents showing that Samsung tried to 

create unlocking designs based on the iPhone,” id. (citing 

PX119 (J.A. 20197), PX121 (J.A. 20274, 20347)); testimony from a Samsung engineer about “the value of designs 

for unlocking,” id. (citing Tr. at 1729:3–11 (J.A. 11735:3–

11)); and “Samsung e-mails noting that certain carriers 

disapproved of the noninfringing ‘circle lock’ alternative,” 

id. (citing PX181 at 5 (J.A. 21019)). The district court also 

noted that the jury found that Samsung willfully infringed the ’721 patent. Id. For the ’647 patent, evidence 

of copying included “an internal Samsung report that 

shows iPhone screens and notes the ‘[n]eed to improve 

usability by providing Links for memo contents,’” id. 

(citing PX146 at 37 (J.A. 20584)), and “an internal Samsung document that copied a figure from the publication 

of one of the ’647 patent’s inventors,” id. (citing PX107 at 

52 (J.A. 20063)); see also J.A. 20003 (inventor’s publication). And for the ’172 patent, Apple presented evidence 

that users criticized Samsung’s noninfringing keyboards 

and word-correction designs. Injunction Order at *14 

(citing PX168 at 4 (J.A. 20985), PX169 at 4 (J.A. 21006), 

PX219 at 104 (J.A. 21318)); see also J.A. 10700–02 (explaining that a Samsung carrier found Samsung’s noninfringing word-correction method “jarring,” which Samsung resolved by going to the word-correction method 

described in the ’172 patent). Finally, the district court 

held that Apple had shown that it too found the “slide to 

unlock” feature claimed in the ’721 patent valuable to 

consumers. Injunction Order at *15 (citing Tr. at 432:20–
14 APPLE INC. v. SAMSUNG ELECTRONICS CO., LTD. 

433:18 (J.A. 10433:20–10434:18); Tr. at 600:23–601:15 

(J.A. 10602:23–10603:15)); see also J.A. 21014 (Apple’s 

first iPhone ad, which opened with imagery of the “slide 

to unlock” feature). The district court rejected this evidence as insufficient to establish the requisite causal 

nexus. Injunction Order at *13–15 (citing Apple I, 678 

F.3d at 1327–28; Apple III, 735 F.3d at 1367). In doing so, 

the district court relied on our previous statements that 

copying is not sufficient to show causal nexus: 

While the evidence that Samsung’s employees believed it to be important to incorporate the patented feature into Samsung’s products is 

certainly relevant to the issue of nexus between 

the patent and market harm, it is not dispositive. 

That is because the relevant inquiry focuses on 

the objective reasons as to why the patentee lost 

sales, not on the infringer’s subjective beliefs as to 

why it gained them (or would be likely to gain 

them). 

Apple I, 678 F.3d at 1327–28. 

The district court was correct that evidence of copying 

does not, by itself, establish a causal nexus. But that does 

not make the evidence wholly irrelevant. Here, too, we 

must avoid categorical rules. Where the precise question 

is about consumer preferences and buying choices, the 

strength and weight to be given to such evidence is to be 

determined on a case-by-case basis based on what the 

evidence indicates. Sometimes this evidence will have 

little or no probative value, for example, if the record 

contains evidence that the infringer’s belief may be at 

odds with consumer preferences. But here, Apple’s evidence of copying established a further link between Apple’s and Samsung’s subjective beliefs and consumers’ 

perceptions, thereby strengthening a causal nexus and 

irreparable harm to Apple. The dissent criticizes Apple’s 

evidence of copying as “lack[ing] any connection to the 
APPLE INC. v. SAMSUNG ELECTRONICS CO., LTD. 15

critical details that define the patented features.” Dissent 

10. The district court made no such findings. Injunction 

Order at *14. The district court acknowledged that Apple 

presented evidence that carriers (’721 patent) and users

(’172 patent), not just Samsung, preferred and valued the 

infringing features and wanted them in Samsung phones. 

Id. It also acknowledged that Apple presented evidence 

that carriers or users disapproved of Samsung’s alternative to the infringing features. The court failed to appreciate, however, that this evidence did not just 

demonstrate that Samsung valued the patented features, 

but also that its carriers or users valued the features. 

The district court further correctly concluded that the ’721 

patent’s features are valuable to Apple’s consumers. Id. 

at *15. It was legal error for the district court to reject 

such strong evidence in this case because Apple presented 

evidence showing that Samsung’s subjective beliefs are 

indicative of consumers’ perceptions of the infringing 

features. Given the strength of the evidence of copying 

and Samsung’s professed belief in the importance of the 

patented features as a driver of sales, and the evidence 

that carriers or users also valued and preferred phones 

with these features, the district court erred by disregarding this evidence, which further establishes a causal 

nexus and Apple’s irreparable harm. 

Furthermore, this record contained Dr. John Hauser’s 

conjoint study, which established that consumers would 

not have purchased a Samsung phone if it lacked the 

patented features, that they valued these features, and 

that they were willing to pay considerably more for a 

phone that contained these features. Injunction Order at 

*12; see also J.A. 20491–98 (survey results showing that 

many respondents would not purchase a Samsung phone 

without the infringing features); J.A. 20539 (results 

showing that respondents were willing to pay more for 

devices that included the infringing features). Based on 

the results, Dr. Hauser concluded that “[t]he features that 
16 APPLE INC. v. SAMSUNG ELECTRONICS CO., LTD. 

were enabled by the patents at issue in this case have a 

measurable impact on consumer demand for Samsung 

telephones, smartphones, and tablets.” J.A. 11130. The 

district court appeared to disregard the Hauser study, 

writing that “[t]he weight of the evidence shows that [the 

Hauser study] fails to demonstrate that the features 

claimed in the ’647, ’721, and ’172 patents drive consumer 

demand for Samsung’s infringing products.” Injunction

Order at *13. The district court’s decision seems to be 

predicated on an incorrect understanding of the nature of 

the causal nexus requirement, as discussed above. 

In short, the record establishes that the features 

claimed in the ’721, ’647, and ’172 patents were important 

to product sales and that customers sought these features 

in the phones they purchased. While this evidence of 

irreparable harm is not as strong as proof that customers 

buy the infringing products only because of these particular features, it is still evidence of causal nexus for lost 

sales and thus irreparable harm. Apple loses sales because Samsung products contain Apple’s patented features. The district court therefore erred as a matter of 

law when it required Apple to show that the infringing 

features were the reason why consumers purchased the 

accused products. Apple does not need to establish that 

these features are the reason customers bought Samsung 

phones instead of Apple phones—it is enough that Apple 

has shown that these features were related to infringement and were important to customers when they were 

examining their phone choices. On this record, applying 

the correct legal standard for irreparable harm, Apple has 

established irreparable harm. The strength of its evidence of irreparable harm goes to this factor’s weight 

when assessing the propriety of the injunction. Apple 

established that customers wanted, preferred, and would 

pay extra for these features. Apple established that 

Samsung believed these features were important and 

copied them. The evidence establishes that Samsung’s 
APPLE INC. v. SAMSUNG ELECTRONICS CO., LTD. 17

carriers and users wanted these features on phones. The 

evidence establishes that Apple believed these features 

were important to customer demand. The evidence establishes that Samsung was Apple’s biggest rival, its fiercest 

competitor. It was clear error in the face of this evidence 

for the district court to conclude that Apple failed to 

establish “some connection” between the patented features and demand for the infringing products. Apple did 

not establish that that these features were the exclusive 

or significant driver of customer demand, which certainly 

would have weighed more heavily in its favor. We conclude that this factor weighs in favor of granting Apple’s 

injunction. 

B. Inadequate Remedy at Law

The second eBay factor is whether “remedies available 

at law, such as monetary damages, are inadequate to 

compensate” for the irreparable harm suffered by the 

patentee. 547 U.S. at 391. 

The district court found that Apple’s sales-based losses were difficult to quantify. Injunction Order at *18. In 

support, the district court cited testimony by Mr. Phil 

Schiller, an Apple marketing executive; testimony by 

Apple’s damages expert; and its own past findings on the 

subject in the context of the Apple-Samsung litigation. 

Id. at *17. We agree with the district court’s analysis. 

Sales lost by Apple to Samsung are difficult to quantify 

due to the “ecosystem effect”—that is, the effect the sale of 

a single product can have on downstream sales of accessories, computers, software applications, and future 

smartphones and tablets. Id.; see also J.A. 10449–50. In 

addition to the downstream sales to the individual customer, Mr. Schiller testified that individual customers 

have a “network effect,” by which they advertise Apple’s 

product to their friends, family, and colleagues. J.A. 

10449–50. Thus, the loss by Apple of a single smartphone 

or tablet customer may have a far-reaching impact on 
18 APPLE INC. v. SAMSUNG ELECTRONICS CO., LTD. 

Apple’s future revenues. Because of its variable and 

uncertain nature, this loss is very difficult to calculate. 

Despite its finding that Apple’s sales-based losses 

were difficult to quantify, the district court nonetheless 

found that this factor weighed against injunctive relief 

based on its determination that Apple had failed to establish any irreparable harm. Injunction Order at *19. 

Apple argues that if we reverse the court on that point, 

this factor will also tip in its favor. We agree. Because 

we find the district court’s finding that Apple did not 

suffer any irreparable harm stemming from its losses of 

sales was predicated on a legal error, it also erred when it 

found that this factor weighs against an injunction. This 

factor strongly weighs in favor of Apple because, as the 

district court found, the extent of Apple’s downstream and 

network effect losses are very difficult to quantify. 

C. Balance of Hardships

To satisfy the third eBay factor, the patentee must

show that the balance of hardships weighs in its favor. 

547 U.S. at 391. This factor “assesses the relative effect of 

granting or denying an injunction on the parties.” i4i, 598 

F.3d at 862. Because “Apple’s proposed injunction targets 

only specific features, not entire products” and contains a 

30-day “sunset provision,” Injunction Order at *20–21, 

and because “Samsung repeatedly told the jury that 

designing around the asserted claims of the three patents 

at issue would be easy and fast,” id. at *22, the district 

court found that Samsung would “not face any hardship” 

from Apple’s proposed injunction, id. at *19. The court, 

reasoning that “requiring a patentee to ‘compete against 

its own patented invention . . . places a substantial hardship’ on the patentee,” found that Apple would suffer

hardship without an injunction. Id. at *22 (quoting 

Robert Bosch LLC v. Pylon Mfg. Corp., 659 F.3d 1142, 

1156 (Fed. Cir. 2011)). The court therefore found that 
APPLE INC. v. SAMSUNG ELECTRONICS CO., LTD. 19

this factor weighed in Apple’s favor. We agree. This 

factor strongly favors granting Apple the relief requested. 

Samsung argues that the district court erred in finding the balance of hardships favors the entry of an injunction. It argues that Apple will not suffer any hardship in 

the absence of an injunction because the patented features are minor components in a complex device. Samsung argues that it and its carriers, retailers, and 

customers would suffer substantial hardship if an injunction issued, particularly because the proposed injunction 

would extend to unadjudicated products with software 

that is “capable of implementing” the infringing features

or other features “not colorably different.” Appellees’ Br. 

55 & n.14 (quoting J.A. 2698).

The district court did not abuse its discretion in finding the balance of hardships favors an injunction; to the 

contrary, this factor strongly weighs in favor of an injunction. Samsung’s infringement harmed Apple by causing 

lost market share and lost downstream sales and by 

forcing Apple to compete against its own patented invention, which “places a substantial hardship” on a patentee, 

especially here where it is undisputed that it is essentially a two-horse race. Bosch, 659 F.3d at 1156. Furthermore, as the district court found, Apple’s proposed 

injunction was narrowly tailored to cause no harm to 

Samsung other than to deprive it of the ability to continue 

to use Apple’s patented features. Injunction Order at 

*21–22. The court has overseen the Apple-Samsung 

litigation from the beginning and has worked extensively 

with parties and their counsel. Given the court’s familiarity with the infringing products, the parties, and their 

history of litigation, it is best-positioned to determine the 

impact of the scope of the injunction on the parties. 

Furthermore, the district court presided over a trial in 

which Samsung’s witnesses and counsel assured the jury 

that design-arounds to the infringing features would be 

“simple or already exist.” Id. at *20. And Samsung 
20 APPLE INC. v. SAMSUNG ELECTRONICS CO., LTD. 

asserted at oral argument that none of the products it 

currently sells practice the ’721 patent or the ’172 patent, 

and that only a single product practices the ’647 patent. 

Oral Argument at 31:10–31:48, available at

http://oralarguments.cafc.uscourts.gov/default.aspx?fl=20

14-1802.mp3. As we wrote in Douglas Dynamics, when 

the infringer “ha[s] a non-infringing alternative which it 

could easily deliver to the market, then the balance of 

hardships would suggest that [it] should halt infringement and pursue a lawful course of market conduct.” 717 

F.3d at 1345. On this record, it is clear—Samsung will 

suffer relatively little harm from Apple’s injunction, while 

Apple is deprived of its exclusivity and forced to compete 

against its own innovation usurped by its largest and 

fiercest competitor. Given the narrow feature-based 

nature of the injunction, this factor strongly weighs in 

favor of granting Apple this injunction. 

D. Public Interest

The fourth eBay factor requires the patentee to show 

that “the public interest would not be disserved by a 

permanent injunction.” 547 U.S. at 391. The district 

court found that the public interest “favor[s] the enforcement of patent rights to promote the encouragement of 

investment-based risk,” particularly where, as here, the 

patentee’s proposed injunction is narrow in scope and 

includes a sunset provision limiting the impact of the 

injunction on consumers. Injunction Order at *22–23

(quotation marks omitted). The court also noted that “an 

injunction may prompt introduction of new alternatives to 

the patented features.” Id. at *23. It therefore concluded 

that the public interest factor favors Apple.

Samsung argues that the district court erred in finding the public interest weighs in favor of an injunction. 

Samsung also argues that the proposed injunction, while 

styled as narrow, is actually quite broad and would lead 

to the removal of products from store shelves, which it 
APPLE INC. v. SAMSUNG ELECTRONICS CO., LTD. 21

argues would harm the public interest. Samsung also 

argues that the public has a strong interest in competition 

and the resulting variety of product choices, and that the 

cost of administering this injunction would be great. 

The district court did not abuse its discretion in finding that the public interest favors an injunction. Indeed, 

the public interest strongly favors an injunction. Samsung is correct—the public often benefits from healthy 

competition. However, the public generally does not 

benefit when that competition comes at the expense of a 

patentee’s investment-backed property right. To conclude 

otherwise would suggest that this factor weighs against 

an injunction in every case, when the opposite is generally 

true. We base this conclusion not only on the Patent Act’s 

statutory right to exclude, which derives from the Constitution, but also on the importance of the patent system in 

encouraging innovation. Injunctions are vital to this

system. As a result, the public interest nearly always 

weighs in favor of protecting property rights in the absence of countervailing factors, especially when the patentee practices his inventions. “[T]he encouragement of 

investment-based risk is the fundamental purpose of the 

patent grant, and is based directly on the right to exclude.” Sanofi-Synthelabo v. Apotex, Inc., 470 F.3d 1368, 

1383 (Fed. Cir. 2006) (quotation marks omitted). 

This is not a case where the public would be deprived 

of Samsung’s products. Apple does not seek to enjoin the 

sale of lifesaving drugs, but to prevent Samsung from 

profiting from the unauthorized use of infringing features 

in its cellphones and tablets. Again, Apple seeks only a 

narrow feature-based injunction commensurate in scope 

with its monopoly rights. And the evidence of record is 

that Samsung can effect the removal of the patented 

features without recalling any products or disrupting 

customer use of its products. Apple has not attempted to 

expand the scope of its monopoly. Given the important 

public interest in protecting patent rights, the nature of 
22 APPLE INC. v. SAMSUNG ELECTRONICS CO., LTD. 

the technology at issue, and the limited nature of the 

injunction, this factor strongly favors an injunction. 

CONCLUSION

The district court erred when it found the first two 

eBay factors weighed against an injunction. Although the 

evidence may not make a strong case of irreparable harm, 

Apple has satisfied the causal nexus requirement and 

therefore established irreparable harm.2 Apple has also 

established that the harm it will suffer is not easily 

compensable at law. Moreover, as the district court 

found, the balance of hardships and public interest weigh 

strongly in favor of an injunction. Given this, the district 

court abused its discretion when it did not enjoin Samsung’s infringement. If an injunction were not to issue in 

this case, such a decision would virtually foreclose the 

possibility of injunctive relief in any multifaceted, multifunction technology. We vacate the district court’s order 

denying Apple’s proposed injunction and remand for 

further proceedings consistent with this opinion. 

VACATED AND REMANDED

COSTS

Each party shall bear its own costs.

2 Because we hold that the district court erred 

when it found that Apple did not suffer irreparable harm 

stemming from its sales-based losses, see supra at 9–17, 

and that on this record and consistent with the other 

holdings of the district court, this harm is sufficient to 

justify an injunction, see infra at 22, we do not reach the 

issue of whether Apple also suffered irreparable reputational harm. 

 
United States Court of Appeals 

for the Federal Circuit ______________________ 

APPLE INC., A CALIFORNIA CORPORATION,

Plaintiff-Appellant

v.

SAMSUNG ELECTRONICS CO., LTD., A KOREAN 

CORPORATION, SAMSUNG ELECTRONICS 

AMERICA, INC., A NEW YORK CORPORATION, 

SAMSUNG TELECOMMUNICATIONS AMERICA, 

LLC, A DELAWARE LIMITED LIABILITY 

COMPANY,

Defendants-Appellees

______________________ 

2014-1802

______________________ 

Appeals from the United States District Court for the 

Northern District of California in No. 5:12-cv-00630-LHK, 

Judge Lucy H. Koh.

______________________ 

REYNA, Circuit Judge, concurring.

The Constitution bestows on Congress the power to 

secure inventors’ “exclusive Right[s]” to their inventions. 

U.S. Const. Art. I, § 8. The utility of this power would, 

according to James Madison, “scarcely be questioned” as 

the rights to inventions “belong to the inventors.” The 

Federalist No. 43, p. 214 (L. Goldman ed. 2008) (J. Madison). In the years since Congress first exercised this 

power and enacted the first Patent Act in 1790, courts 
2 APPLE INC. v. SAMSUNG ELECTRONICS CO., LTD. 

have varied in how they have protected the right to exclude, first preferring damages, then granting injunctions 

routinely, and recently rigorously applying the irreparable injury factor of the four-part eBay test. The court

today correctly concludes that Apple, Inc. is entitled to a

narrow, feature-based injunction against Samsung1

because Samsung’s infringement will likely cause Apple 

to lose downstream sales. I agree with this decision and 

note that it leaves open the door for obtaining an injunction in a case involving infringement of a multi-patented 

device, a door that appears near shut under current law.

I write to add that I believe Apple satisfied the irreparable injury factor based on Samsung’s infringement on 

Apple’s right to exclude and based on the injury that the 

infringement causes Apple’s reputation as an innovator. 

There is no dispute that Samsung has infringed Apple’s 

right to exclude and, absent an injunction, it will likely 

continue to do so. I believe that such a finding satisfies 

the irreparable harm requirement because the infringement is, in this case, “irreparable.” On reputational 

injury, the roles are reversed: it is undisputed that such 

an injury is irreparable; the question is whether this

injury will likely occur. As I explain below, I believe that 

the record here—particularly the toe-to-toe competition

between Apple and Samsung, Apple’s reputation as an 

innovator, and the importance of the patents-in-suit to 

that reputation—establishes that Apple will likely suffer 

irreparable harm to its reputation.

1 I refer to Samsung Electronics Company, Ltd.; 

Samsung Electronics America, Inc.; and Samsung Telecommunications America, LLC collectively as “Samsung.” 

 
APPLE INC. v. SAMSUNG ELECTRONICS CO., LTD. 3

I. Injury to The Right to Exclude is an “Injury” 

That is, in this Case, “Irreparable.” 

A patentee’s rights spring forth from the Constitution, 

which gives Congress the power to “secur[e] for limited 

Times to . . . Inventors the exclusive Right to their respective . . . Discoveries.” U.S. Const. Art. I, § 8. Under this 

grant of authority, Congress has given patentees “monopoly rights.” F.T.C. v. Actavis, Inc., 133 S. Ct. 2223, 2240 

(2013) (Roberts, C.J., dissenting). That is, the patentee 

obtains the right to invoke the “State’s power” to prevent 

others from engaging in certain activities. Zenith Radio 

Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 135 

(1969). Those activities include “making, using, offering 

for sale, or selling the invention throughout the United 

States or importing the invention into the United States,” 

and if the invention is a process, “using, offering for sale 

or selling throughout the United States, or importing into 

the United States, products made by that process.” 35 

U.S.C. § 154(a)(1).

These monopoly rights do not necessarily entitle a patentee to injunctive relief. At least as far back as the 17th 

century, courts have required a showing of “irreparable” 

injury before granting injunctive relief. See Laycock, 

Douglas, Death of the Irreparable Injury Rule, 103 Harv. 

L. Rev. 687, 699 (1990) (“Laycock”). After Congress 

passed the first Patent Act in 1790 up until 1819, American courts generally found that the patent statutes provided damages as the remedy for patent infringement, 

meaning that infringement of patent rights did not constitute an irreparable injury. See Root v. Lake Shore & M.S. 

Ry. Co., 105 U.S. 189, 192 (1881); Frankfurter, Felix, The 

Business of the Supreme Court of the United States — A 

Study in the Federal Judicial System, 39 Harv. L. Rev. 

587, 616–17 (1926). In 1819, Congress specifically granted courts the authority to grant injunctions in cases 

involving patent infringement. Root, 105 U.S. at 192. 

From this point until the 20th century, courts granted 
4 APPLE INC. v. SAMSUNG ELECTRONICS CO., LTD. 

injunctions in patent cases where the defendant was 

shown to be likely to continue to infringe. Robinson, 

William C., The Law of Patents for Useful Inventions, § 

1088 (1890); Lipscomb, Ernest Bainbridge, III, Walker on 

Patents, § 25:33 (1988). In the early 20th century, courts 

went further, holding that the default rule was that 

monetary damages were insufficient to compensate for 

infringement on the right to exclude. E.g., Am. Code Co. 

v. Bensinger, 282 F. 829, 834 (2d Cir. 1922) (“In cases of 

infringement of copyright, an injunction has always been 

recognized as a proper remedy, because of the inadequacy 

of the legal remedy.”) Our court followed suit, holding 

that where “validity and continuing infringement have 

been clearly established,” irreparable injury is presumed. 

Smith Intern., Inc. v Hughes Tool Co., 718 F.2d 1573, 

1581 (Fed. Cir. 1983). We eventually created a default 

rule that an injunction would issue when infringement 

has been established, absent a “sound” reason for denying 

it. Richardson v. Suzuki Motor Co., 868 F.2d 1226, 1246–

47 (Fed. Cir. 1989), cert. denied, 493 U.S. 853 (1989). 

In eBay Inc. v. MercExchange, L.L.C., the Supreme 

Court rejected that default rule, holding that a plaintiff 

seeking a permanent injunction must satisfy the fourfactor test historically employed by courts of equity, 

including establishing irreparable injury. 547 U.S. 388, 

391, 393 (2008). Though we read eBay to overrule our 

presumption of irreparable injury, we cautioned that 

courts should not necessarily “ignore the fundamental 

nature of patents as property rights granting the owner 

the right to exclude.” Robert Bosch LLC v. Pylon Mfg. 

Corp., 659 F.3d 1142, 1149 (Fed Cir. 2011). Yet our 

recent cases have done precisely that, ignoring the right 

to exclude in determining whether to issue an injunction. 

Indeed, our opinions in the most recent cases between 
APPLE INC. v. SAMSUNG ELECTRONICS CO., LTD. 5

Apple and Samsung do not even mention the right to 

exclude as a possible basis for injunctive relief.2 

I believe that this recent trend extends eBay too far. 

Infringement on the right to exclude is, in my view, an 

“injury” that is sometimes irreparable. An “injury” is not 

limited to tangible violations but rather encompasses

“violation[s] of another's legal right, for which the law 

provides a remedy; a wrong or injustice.” Injury, Black's 

Law Dictionary (10th ed. 2014) (emphasis added). Courts 

have routinely granted injunctions when constitutional 

rights are at issue. 11A Charles Alan Wright et al. Federal Practice & Procedure § 3942 (3d ed.). Nor is this

approach limited to rights derived from the Constitution—courts have granted injunctions against private 

parties based on various statutorily-granted rights. See, 

e.g., E.E.O.C. v. Cosmair, Inc., L'Oreal Hair Care Div., 

821 F.2d 1085, 1090 (5th Cir. 1987) (employment discrimination); Park Vill. Apartment Tenants Ass’n v. Mortimer 

Howard Trust, 636 F.3d 1150, 1152 (9th Cir. 2011) (statutory housing rights); Armstrong v. Schwarzenegger, 622 

F.3d 1058 (9th Cir. 2010) (ADA rights). 

There is no reason to treat patent rights differently. 

As the majority aptly puts it, the right to exclude is 

“important.” Maj. Op. at 12. The patentee earned this 

right by disclosing a useful invention to the public. See 35 

U.S.C. §§ 101, 112. Madison recognized the balance 

between the right to exclude and the benefit extended to 

society by the disclosure included in a patent as a “public 

good.” The Federalist No. 43, p. 214 (L. Goldman ed. 

2008) (J. Madison). When courts do not force the public to 

2 See Apple Inc. v. Samsung Elecs. Co., 678 F.3d 

1314 (Fed. Cir. 2012) (“Apple I”); Apple Inc. v. Samsung

Elecs. Co., 695 F.3d 1370 (Fed. Cir. 2012) (“Apple II”); 

Apple Inc. v. Samsung Elecs. Co., 735 F.3d 1352 (Fed. Cir. 

2013) (“Apple III”).

 
6 APPLE INC. v. SAMSUNG ELECTRONICS CO., LTD. 

hold up its end of the bargain they inhibit rather than 

“promote” the “progress of the useful arts.” U.S. Const. 

Art. I, § 8. Indeed, Chief Justice Roberts’s concurrence in 

eBay, discussed in more detail below, implicitly acknowledges that infringement on the right to exclude is an 

injury for which an injunction can be granted. eBay, 547 

U.S. at 395. 

Such an injury can be irreparable. In this context, 

“irreparable” does not mean that the injury cannot be 

remedied at all. If that were the case, the plaintiff would 

not have standing to sue. Lujan v. Defenders of Wildlife, 

504 U.S. 555, 561 (1992). What makes an injury “irreparable” is that legal damages, i.e., monetary relief, cannot 

remedy the harm. See Laycock at 694. Courts have 

provided several reasons why this may be the case, including instances in which injury is repeated or threatened, substitutes are difficult to obtain, or damages are 

difficult to measure. See, e.g., Mark P. Gergen et al., The 

Supreme Court’s Accidental Revolution? The Test for 

Permanent Injunctions, 112 Colum. L. Rev. 203, 237

(2012) (“Gergen”). 

The last of these concerns was the reason courts traditionally found infringement of intellectual property 

rights to be irreparable. As Chief Justice Roberts explained in his eBay concurrence: 

From at least the early 19th century, courts have

granted injunctive relief upon a finding of infringement in the vast majority of patent cases. 

This “long tradition of equity practice” is not surprising, given the difficulty of protecting a right to 

exclude through monetary remedies that allow an 

infringer to use an invention against the patentee’s wishes—a difficulty that often implicates the 

first two factors of the traditional four-factor test. 
APPLE INC. v. SAMSUNG ELECTRONICS CO., LTD. 7

eBay, 547 U.S. at 395. As Justice Kennedy explained, 

however, this traditional model does not always apply, 

particularly when the patentee is a non-practicing entity: 

An industry has developed in which firms use patents not as a basis for producing and selling 

goods but, instead, primarily for obtaining licensing fees. For these firms, an injunction, and the 

potentially serious sanctions arising from its violation, can be employed as a bargaining tool to 

charge exorbitant fees to companies that seek to 

buy licenses to practice the patent. When the patented invention is but a small component of the 

product the companies seek to produce and the 

threat of an injunction is employed simply for undue leverage in negotiations, legal damages may 

well be sufficient to compensate for the infringement and an injunction may not serve the public 

interest. 

Id. at 396–97. Where the patentee is an entity that uses 

patents primarily to obtain licensing fees, its business 

objectives are premised on monetary relief being sufficient 

to compensate for infringement. The relationship between the patentee and the infringer is also relatively 

simple, making damages relatively straightforward to 

calculate. 

That is not the case here. Apple’s business objectives 

encompass far more than obtaining licensing fees. And 

the relationship between Apple and Samsung is complex. 

Apple and Samsung “fiercely” compete in the mobile

device hardware and software markets. The device 

hardware market includes multiple competitors, but 

Apple and Samsung stand alone as the market leaders. 

They also compete in the device operating system market, 

where Apple’s “iOS” operating system competes with 

Google, Inc.’s “Android” operating system. 
8 APPLE INC. v. SAMSUNG ELECTRONICS CO., LTD. 

Apple effectively created the smartphone market 

when it launched its iPhone in June 2007. According to 

Phil Schiller, the head of Apple’s Worldwide Marketing 

Group, Apple sold 300,000 units during its first quarter. 

J.A. 10447. This figure rose to over 10 million at the start 

of 2009. Id. According to Mr. Schiller, what distinguished Apple’s phones was that they were controlled 

completely by software (as opposed to buttons on the 

phone), which allowed users to access media and the 

Internet. J.A. 10449. Apple released its tablet, the iPad, 

in 2010, and it too enjoyed great success. J.A. 10451. 

When Samsung entered the smartphone market, releasing its own line of “Galaxy” smartphones, Apple took 

notice. To Mr. Schiller, Samsung’s smartphones seemed 

like an “attempt to copy the iPhone.” J.A. 10470. By 

August of 2011, when Apple was releasing version 5 of 

iOS, the relationship between Apple and Samsung, in Mr. 

Schiller’s words, “wasn’t a good relationship.” J.A. 10473. 

Apple and Samsung had created an “extremely competitive environment.” J.A. 10473. Apple and Samsung were 

at the time of trial, according to Mr. Schiller, “head-tohead” competitors in a variety of retail markets for 

smartphones and tablets. J.A. 10469.

From Samsung’s perspective, the competition was 

equally vigorous. In its internal marketing documents, 

Samsung listed one of its 2010 objectives in market reputation terms to “overcome fast follower status and establish Samsung as a challenger to Apple.” J.A. 11703. In 

Samsung’s view, the marketplace mainly involved competition between devices that run Apple’s iOS and devices 

that run Google’s Android. J.A. 11708. Indeed, Samsung’s counsel asserted in its opening statement that 

“Apple has sued . . . the biggest user of Google’s Android 

software and the most successful manufacturer of Android 

phones, Samsung, to try to prevent it from selling phones

with that leading Android software . . . .” J.A. 10361. 

Samsung, however, also attempted to distinguish its 
APPLE INC. v. SAMSUNG ELECTRONICS CO., LTD. 9

devices from Apple’s through hardware advancements, 

including, for example, larger screen sizes, near field 

communications, and allowing for the use of a stylus. J.A. 

11710. Despite this fierce, toe-to-toe competition, Apple 

and Samsung are also business partners. Samsung 

supplies about 25 percent of the components in the iPhone. J.A. 11712. 

This evidence demonstrates that the relationship between Apple and Samsung is dramatically different from 

a non-practicing entity and an infringer. Apple’s business 

objective is not merely to obtain licensing fees from Samsung. Rather, it seeks to firmly establish and grow its 

market share in the rapidly evolving smartphone and 

tablet market. In a marketplace this complex, it is difficult, if not impossible, for a court to accurately value 

Apple’s right to exclude. How, for example, does Apple 

value its rights to exclude relative to other means for 

competing against Samsung? What effect does the infringement have on how consumers view subsequently

released products? How would Apple’s existing business 

relationship with Samsung factor into this valuation? 

Courts are not equipped to answer these questions.

In sum, a jury found that Samsung infringed Apple’s 

right to exclude. Apple has been injured and, absent an 

injunction, that injury will likely continue. eBay and its 

progeny explain that such a finding is not necessarily 

sufficient to meet the irreparable harm requirement. But 

that does not mean we should ignore this injury. In view 

of Apple’s and Samsung’s unique competition, I would 

conclude a court cannot accurately determine the extent 

of Apple’s injury, and thus, I would find that Samsung’s 

infringement of Apple’s patent rights irreparably injures 

Apple. 
10 APPLE INC. v. SAMSUNG ELECTRONICS CO., LTD. 

II. Apple has shown that Samsung’s Infringement 

will Likely Injure Apple’s Reputation as an Innovator. 

Having determined that Apple established irreparable 

injury via lost downstream sales, the majority opinion 

does not reach the issue of reputational injury. Maj. Op. 

at 22, n.2. I would reach this issue and hold, in the alternative, that Samsung’s continued infringement would 

irreparably injure Apple’s reputation as an innovator. 

To establish any irreparable injury, this court has 

generally required the plaintiff to establish a “causal 

nexus”: “[t]o show irreparable harm, it is necessary to 

show that the infringement caused harm in the first 

place.” Apple I, 678 F.3d at 1324 (emphasis added). The 

problem with this formulation is that it necessarily focuses on the past, and in doing so effectively requires the 

plaintiff to show a near certainty of irreparable harm and 

not a “likelihood” of harm. As the Supreme Court explained more than sixty years ago, injunctive relief addresses future harms and the past is only relevant as an 

indicator of the future: 

The sole function of an action for injunction is to 

forestall future violations. . . . All it takes to make 

the cause of action for relief by injunction is a real 

threat of future violation or a contemporary violation of a nature likely to continue or recur. . . . In 

a forward-looking action such as this, an examination of ‘a great amount of archeology' is justified 

only when it illuminates or explains the present 

and predicts the shape of things to come.

United States v. Or. State Med. Soc., 343 U.S. 326, 333 

(1952) (Jackson, J.). In Winter v. Natural Resources 

Defense Council, Inc., the Court further explained that a 

plaintiff must show that irreparable injury is “likely” in 
APPLE INC. v. SAMSUNG ELECTRONICS CO., LTD. 11

the absence of an injunction. 555 U.S. 7, 22 (2008).3 

While “likely” is more demanding than “possible,” it does 

not require a showing that the injury is certain or nearly 

certain. Small v. Avanti Health Sys., LLC, 661 F.3d 1180, 

1191 (9th Cir. 2011). Rather, the plaintiff must show that 

irreparable injury is more likely than not to occur absent 

an injunction. Cf. Trebro Mfg., Inc. v. Firefly Equip., LLC, 

748 F.3d 1159, 1166 (Fed. Cir. 2014) (explaining that 

“likely” success on the merits means “more likely than 

not”). 

A plaintiff can meet this burden by showing that it 

will likely suffer an injury and, separately, satisfy the 

nexus requirement by showing that this injury is causally 

linked to the infringement. The plaintiff’s evidence often 

comes in the form of empirical data showing both a past 

injury and a causal link between that injury and the past 

infringement.4 The district court faults Apple for not 

following this methodology here, finding significant that 

Apple’s data do not empirically show that its reputation 

had been harmed. Apple Inc. v. Samsung Elecs. Co. Ltd., 

No. 12-CV00630, 2014 WL 7496140, at *15–17 (N.D. Cal. 

Aug. 27, 2014). But our case law does not require a 

plaintiff to follow this methodology. A plaintiff can instead rely on a theory of causation to show that it will be 

irreparably harmed. In other words, the plaintiff can 

show both the presence of irreparable injury and the 

causal nexus by establishing circumstances under which 

3 Though Winter addressed the test in the context of 

a preliminary injunction, the substantive analysis for 

irreparable harm factor is the same for a permanent 

injunction. Amoco Prod. Co. v. Village of Gambell, AK, 

480 U.S. 531, 546 n.12 (1987). 4 As noted, an injunction is a form of forwardlooking relief. Thus, arguments based on past harm 

implicitly assume that circumstances will not change. 

 
12 APPLE INC. v. SAMSUNG ELECTRONICS CO., LTD. 

infringement would more likely than not cause the 

claimed injury. This was how the patentee proved irreparable injury in Douglas Dynamics, LLC v. Buyer Products 

Co., 717 F.3d 1336 (Fed. Cir. 2013). 

In that case, the patentee, Douglas Dynamics, and infringer, Buyer Products, were competitors in the market 

for snowplow assemblies often mounted on the front of a 

truck. Id. at 1339. Douglas Dynamics had about sixty 

percent of the market share and was recognized as being 

an innovator. Id. The patented features were recognizable by consumers, thus influencing how consumers viewed 

Douglas Dynamics. The patented features included a 

mounting frame that did not extend beyond the vehicle’s 

bumper, reducing the likelihood of inadvertent damage 

and allowing drivers to “remove heavy portions of the 

snowplow assembly from the vehicle when the plow is not 

in use, thus reducing stress on the vehicle’s suspension.” 

Id. 

We held that the district court abused its discretion in 

finding that Douglas did not meet the irreparable injury 

factor. Id. In particular, we held—without any empirical 

evidence of injury or causal nexus—that the district 

court’s finding that Douglas Dynamics’s reputation would 

not be injured by the infringement was clearly erroneous. 

Id. at 1344. Infringement, we explained, can harm a 

company’s reputation, “particularly its perception in the 

marketplace by customers, dealers, and distributors.” Id. 

Douglas Dynamics’s reputation would “certainly be damaged” if customers found the patented features appearing 

in a competitor’s product. Id. at 1344–45. Douglas Dynamics would be perceived as less of an innovator because 

its competitors could incorporate the patented features 

without noting that they belonged to Douglas Dynamics. 

Id. at 1344. Exclusivity, we further explained, is “an 

intangible asset that is part of a company’s reputation.” 

Id. at 1345. “Where two companies are in competition 

against one another, the patentee suffers the harm—often 
APPLE INC. v. SAMSUNG ELECTRONICS CO., LTD. 13

irreparable—of being forced to compete against products 

that incorporate and infringe its own patented inventions.” Id. Where the patentee and the infringer are toeto-toe competitors in a two-competitor marketplace, the 

loss of reputation caused by infringement marks a gain of 

reputation of the infringer as an innovator. 

On the record before us, I would hold that Apple has 

shown that it will likely suffer irreparable injury. First, 

Apple and Samsung are direct competitors in the 

smartphone and tablet market. We have repeatedly held 

after eBay that competition between the patentee and the 

infringer, particularly direct competition, strongly militates toward a finding of irreparable harm. As noted 

above, in Douglas Dynamics, we focused on the competition between the patentee and the infringer. Id. In 

Presidio Components, we explained that direct competition is “one factor suggesting strongly the potential for 

irreparable harm.” Presidio Components Inc. v. Am. Tech. 

Ceramics Corp., 702 F.3d 1351, 1363 (Fed. Cir. 2012) 

(internal citation omitted). And in Trebo Manufacturing, 

we explained that because the record showed that the 

patentee and the infringer were direct competitors, it 

“strongly show[ed] a probability for irreparable harm.” 

Trebo Mfg. v. Firefly Equipment, 748 F.3d 1159, 1171 

(Fed. Cir. 2014). This factor is especially strong here 

because Apple and Samsung are toe-to-toe competitors in 

a unique marketplace.

Second, like Douglas Dynamics, Apple’s reputation as 

an innovator is critical to its ability to compete against 

Samsung. As the district court explained, Apple has a 

strong reputation as being an innovator in the 

smartphone and tablet market. See 2014 WL 7496140 at 

*15. Samsung appears to concede this point, going so far 

as to refer to Apple as an “amazing innovative company”

in its opening statement at trial. J.A. 10361. Mr. Schiller

testified that Apple prizes this reputation, explaining that

the “very DNA” of Apple is that it is an innovator that 
14 APPLE INC. v. SAMSUNG ELECTRONICS CO., LTD. 

“creates unique differentiations in [its] products that 

customers value.” J.A. 10453. He further explained that 

Apple’s marketing strategy was “The Product as Hero.” 

J.A. 10466. That is, the features of the product are the 

emphasis of the marketing, not, e.g., price, customer 

service, etc. See id. 

The patents at issue here cover the types of features 

that made Apple’s products the “hero.” These patents 

cover features that consumers regularly interact with, 

thereby influencing how consumers perceive Apple, not 

latent features which consumers may not be aware of. 

Douglas Dynamics, 717 F.3d at 1339. For example, U.S. 

Patent No. 5,946,647 discloses software that allows a user 

to take action with respect to a detected phone number by 

dialing a phone number without exiting one program and 

entering another. ’647 patent col. 5 ll. 38–50. These 

features were so important that Apple included it across 

all of its products, including iPhones and iPads. J.A. 

10794. U.S. Patent No. 8,046,721 discloses a device that a 

user unlocks with gestures. ’721 patent col. 8 ll. 49–55. 

This feature was one of the features that Apple marketed 

in its first ads. It represented a “great beginning” that 

customers often utilize. J.A. 10433–34, 21014, 10602–04. 

Similarly, U.S. Patent No. 8,074,172 discloses a method 

for automatically correcting spelling errors as a user types 

words using a touchscreen device, a boon for those who 

would accept a misspelled word in favor of looking up its 

correct spelling. ’172 patent col. 9 ll. 11–27. 

In Douglas Dynamics, we explained that when customers find the patentee’s innovations appearing in a 

competitor’s products, the patentee’s reputation as an 

innovator will “certainly” be damaged. Douglas Dynamics, 717 F.3d at 1344–45. That reasoning applies with 

great force here. Though the parties dispute whether 

Apple practices every aspect of the claimed inventions, it 

is essentially undisputed that Apple’s products include 

similar features that compete with the patented features, 
APPLE INC. v. SAMSUNG ELECTRONICS CO., LTD. 15

as practiced in Samsung’s products. The presence of the 

patented features in the products of Apple’s chief competitor communicates a message that Apple’s corresponding 

features are commonplace, not innovative. Samsung’s 

infringement thus neutralizes the beneficial impact that 

Apple’s corresponding features have in the mind of the 

consumer. This injury is amplified here because of the 

toe-to-toe competition between Apple and Samsung. In 

such a market, even otherwise minor differences between 

competitors are magnified as each competitor attempts to 

gain some advantage over the other, such as the perception that one is a greater innovator than the other. 

Apple’s reputational injury is all the more important 

here because of the nature of Apple’s reputation, i.e., one 

of an innovator (as opposed to, e.g., a producer of low-cost 

goods). Consumers in the smartphone and tablet market 

seek out innovative features and are willing to pay a 

premium for them. Sometimes consumers in this market 

will even prioritize innovation over utility. A reputation 

as an innovator creates excitement for product launches 

and engenders brand loyalty. Samsung recognized the 

importance of such a reputation and set its sights not on 

developing more useful products, but rather to overcome 

the perception that it was a “fast follower.” Apple, 2014 

WL 7496140, at *8. 

Samsung argues that some or all of the patented features not being exclusive to Apple “defeats any claim of 

reputational harm.” Appellee Br. 38. Apple appears to

concede that it has license agreements with Nokia and 

HTC.5 Appellant Br. 46. Apple also appears to have 

license agreements with Microsoft and IBM, but Samsung 

did not rely on these licenses before the district court. 

5 All license agreements are described in general 

terms because aspects of these agreements are confidential.

 
16 APPLE INC. v. SAMSUNG ELECTRONICS CO., LTD. 

2014 WL 7496140 at *33, n.7. A patentee’s willingness to 

license can militate against a finding of irreparable harm, 

but it does not foreclose such a finding. Acumed LLC v. 

Stryker Corp., 551 F.3d 1323, 1328 (Fed. Cir. 2008) (“A 

plaintiff’s past willingness to license its patent is not 

sufficient per se to establish a lack of irreparable harm if 

a new infringer were added.”) (citing eBay, 547 U.S. at 

393). In the context of reputational injury, if patented 

features appear in products other than the infringer’s

products, the marginal impact of the infringer’s use of 

those features may be minimized. The licensed use of 

patented features is sufficient to make those features 

appear commonplace, and thus the infringer’s use of those 

features has little or no impact. This reasoning does not 

apply here because there is no evidence that any of the 

licensees practiced any of the patented features. Samsung counters that it is Apple’s burden to produce evidence tending to prove the negative, i.e., to produce 

“evidence that Microsoft and HTC cannot and do not use 

the patented features.” Appellee Br. 38. Samsung’s 

argument misunderstands the burden applicable in this 

case. In requesting a permanent injunction, Apple of 

course bears the burden of production. Robert Bosch, 659 

F.3d at 1154. Apple met this burden with the evidence 

cited above—particularly, the unique, direct, and fierce 

competition between the parties, Apple’s reputation as an 

innovator, and the importance of the patented features to 

that reputation. If Samsung seeks to rebut this evidence 

with instances of the use of the patented features by other 

parties, it was Samsung’s burden to show that this occurred. To hold otherwise would mean that proof of a lack 

of licensing activity is a prerequisite to injunctive relief, a 

position the Supreme Court rejected in eBay. 547 U.S. at 

393.6

6 The Dissent incorrectly asserts that requiring 

 
APPLE INC. v. SAMSUNG ELECTRONICS CO., LTD. 17

Nor does the presence of the licensing agreements indicate that Apple considered monetary remedies sufficient 

to compensate it for Samsung’s infringement. As the 

district court found, the Nokia and HTC licenses are 

litigation settlements. 2014 WL 7496140 at *33. Though 

these agreements may allow for some form of monetary 

compensation, they have a fundamentally non-monetary 

undergirding—the end of a litigation between the parties. 

In addition, the licenses themselves indicate a strong 

desire on the part of Apple to carefully guard its own user 

experience. The HTC license excluded products that were 

“clones” of Apple’s products, and the license to Nokia only 

applied for a “standstill” period. Id. Most notably, the 

licensed companies are not Apple’s chief competitor. 

Thus, even if the licenses indicate a willingness to accept 

monetary compensation from Nokia and HTC, they would 

not show that monetary compensation is sufficient in this 

case. As we explained in Acumed, the “identity of the past 

licensees, the experience in the market since the licenses 

were granted, and the identity of the new infringer” all 

affect whether monetary damages are sufficient to compensate for infringement. 551 F.3d at 1328.

Samsung also argues that a reliance on the factors 

described in Douglas Dynamics would create a “per se” 

rule of the sort that the Supreme Court rejected in eBay. 

Appellee Br. 30. Indeed, a theme that runs through both 

parties’ briefing is that the other side’s reasoning would 

impermissibly create a per se rule. Both sides are of 

course correct that eBay rejected this court’s “categorical 

Samsung to provide evidence of instances of the use of the 

patented features by parties other than Samsung “arbitrarily shift[s] the burden of proof to Samsung.” Dissent 

at 3–4 n.1. The burden of proof, of course, remains on 

Apple. But Apple does not have to prove a negative to 

carry that burden. 

 
18 APPLE INC. v. SAMSUNG ELECTRONICS CO., LTD. 

grant” of injunctions absent exceptional circumstances. 

546 U.S. at 394. But relying on factors from past cases to 

determine whether a patentee will likely suffer irreparable harm is not the creation of a per se rule; it is the 

application of stare decisis. As Justice Holmes famously 

stated, “a page of history is worth a volume of logic.” N.Y.

Trust Co. v. Eisner, 256 U.S. 345, 349 (1921) (quoted in 

eBay, 547 U.S. at 395 (Roberts, C.J., concurring)). 

III. CONCLUSION

I would hold that Samsung’s infringement amounted 

to an irreparable injury to Apple’s right to exclude. That 

injury is sufficient, based on the facts of this case, to grant 

an injunction. Apple also has shown that Samsung’s 

infringement will likely injure its reputation as an innovator in the fiercely competitive smartphone and tablet 

market. 
United States Court of Appeals 

for the Federal Circuit ______________________ 

APPLE INC., A CALIFORNIA CORPORATION,

Plaintiff-Appellant

v.

SAMSUNG ELECTRONICS CO., LTD., A KOREAN 

CORPORATION, SAMSUNG ELECTRONICS 

AMERICA, INC., A NEW YORK CORPORATION, 

SAMSUNG TELECOMMUNICATIONS AMERICA, 

LLC, A DELAWARE LIMITED LIABILITY 

COMPANY,

Defendants-Appellees

______________________ 

2014-1802

______________________ 

Appeals from the United States District Court for the 

Northern District of California in No. 5:12-cv-00630-LHK, 

Judge Lucy H. Koh.

______________________ 

PROST, Chief Judge, dissenting.

This is not a close case. One of the Apple patents at 

issue covers a spelling correction feature not used by 

Apple. Two other patents relate to minor features (two 

out of many thousands) in Apple’s iPhone—linking a 

phone number in a document to a dialer, and unlocking 

the screen. Apple alleged that it would suffer irreparable 

harm from lost sales because of Samsung’s patent infringement. For support, Apple relied on a consumer 

survey as direct evidence, and its allegations of “copying” 
2 APPLE INC. v. SAMSUNG ELECTRONICS CO., LTD. 

as circumstantial evidence. The district court rejected 

both evidentiary bases. On the record of this case, showing clear error in the district court’s factual findings is 

daunting, if not impossible. Not surprisingly, Apple

principally presses a novel legal theory in this appeal: 

that the narrowness of its injunction request eliminated 

its burden to show nexus between its alleged irreparable 

harm and Samsung’s patent infringement. The majority 

correctly rejects this theory and the case should have 

ended there.

So why doesn’t it? Because the majority finds legal 

error by the district court where none exists. Then, under 

the guise of the purported “legal error,” the majority 

reverses without deference the district court’s rejection of 

Apple’s survey evidence, never mentioning that the survey was rejected by the district court because Samsung’s 

serious challenges to its techniques and conclusions were 

unrebutted by Apple. The majority further relies on 

“evidence,” found nowhere in the record, that carriers or 

users preferred having the patented features on Samsung’s phones. It also concludes—contrary to our case 

law—that Apple’s alleged evidence of “copying” is sufficient to show nexus to Apple’s alleged lost-sales. Because 

the majority here reaches a result that comports with 

neither existing law nor the record in this case, I must 

respectfully dissent.

A 

Injunctions in patent cases, as in other areas of law, 

require evaluating the traditional four factors, including 

irreparable harm. Following eBay Inc. v. MercExchange, 

L.L.C., 547 U.S. 388 (2006), when the infringing feature is 

but one of several components of the accused product, our 

precedent has clearly and consistently required patentees 

requesting injunctions to establish a nexus between the 

alleged irreparable harm and the patent infringement. 

This nexus showing is, of course, an indispensable pre-
APPLE INC. v. SAMSUNG ELECTRONICS CO., LTD. 3

requisite in a case such as this, where, we are told, the 

infringed features are merely three of potentially hundreds of thousands of patented features in a single product. Requiring a showing of nexus is necessary to prevent 

undue leverage wielded by patents on minor features. 

B 

Turning to the case, the majority’s first error is its determination that the district court’s analysis was legally 

erroneous. Specifically, the majority states that, regarding Apple’s alleged irreparable harm from lost sales, “it 

was legal error for the district court to effectively require 

Apple to prove that the infringement was the sole cause of 

the lost downstream sales.” Majority Op. at 11; see also 

id. at 12, 16. But the majority quotes nothing from the 

district court’s opinion to show there is such an error. 

And for good reason: there is nothing. Hence, there is no 

error.

The words “sole” and “predominant” are not even present in the district court’s opinion.1 There is simply 

1 The district court used the words “exclusivity” and 

“exclusively,” but only in the context of rejecting Apple’s 

contention of irreparable reputational harm. See, e.g., 

Apple Inc. v. Samsung Elecs. Co., No. 12-CV-00630-LHK, 

2014 WL 7496140, at *11 (N.D. Cal. Aug. 27, 2014) (“Injunction Order”). And while the majority declines to 

reach the reputational harm issue, the concurrence does 

not. Here, the district court found that Apple’s licenses to 

other competitors were fatal to its claim that it had a 

“reputation for exclusivity” over the patented features. 

Id. The concurrence simply disregards this finding. 

Instead, the concurrence faults Samsung for failing to 

show evidence “that any of the licensees practiced any of 

the patented features” and states that Apple only “bears 

the burden of production,” after which the burden shifts to 

 
4 APPLE INC. v. SAMSUNG ELECTRONICS CO., LTD. 

nothing in the district court’s opinion that explicitly or 

implicitly required Apple to show that the patented 

features were the “sole,” “predominant,” or “exclusive” 

reasons for purchasing Samsung’s products. Nevertheless, the majority concludes that the district court’s rejection of Apple’s direct evidence—the consumer survey and 

testimony by its expert, Dr. Hauser—“seems to be predicated on an incorrect understanding of the nature of the 

causal nexus requirement, as discussed above,” i.e., the 

so-called “legal error” by the district court. Id. at 14. 

In reality, however, the district court simply weighed

the evidence and found it lacking: “[t]he weight of the 

evidence shows that Apple’s conjoint study fails to demonstrate that the features claimed in the ’647, ’721, and ’172 

patents drive consumer demand for Samsung’s infringing 

products.” Injunction Order at *13. The district court 

reasoned that Apple made “only cursory arguments” 

about Dr. Hauser’s survey, while in contrast, Samsung 

challenged its myriad deficiencies including that the 

survey “omitted the major factors and major drivers of 

sales,” “overstated the scope of the claimed features and 

improperly included noninfringing alternatives,” and 

“produced nonsensical results, such as the conclusion that 

the patented word correction feature (corresponding to the 

’172 patent) was worth about $102 on a phone that cost 

$149.” Id. at *12–13. The district court therefore found 

that Apple “d[id] not rebut Samsung’s critiques of Dr. 

Samsung. Concurrence at 16. But the party requesting 

injunction bears more than the “burden of production;” it 

bears the “burden of proving irreparable harm,” a burden 

which Apple failed to meet. See Robert Bosch LLC v. 

Pylon Mfg. Corp., 659 F.3d 1142, 1154 (Fed. Cir. 2011). 

Apple’s failure of proof cannot be excused by disregarding 

the district court’s factual findings and arbitrarily shifting 

the burden of proof to Samsung.

 
APPLE INC. v. SAMSUNG ELECTRONICS CO., LTD. 5

Hauser’s techniques or show that Apple’s conjoint study 

in this case establishe[d] a causal nexus.” Id. at *13. 

In making these factual findings, the district court followed our case law faithfully. Nothing in the district 

court’s opinion suggests that it deviated from our precedent. Rather, the majority deviates from our precedent by 

repeating as a mantra the phrase “some connection” in 

Apple Inc. v. Samsung Electronics Co., 735 F.3d 1352 

(Fed. Cir. 2013) (“Apple III”) detached from the causal 

nexus standard explained in our prior cases. See Majority 

Op. at 9, 10, 11 n.1, 12, 17. For example, we have held 

that 

It is not enough for the patentee to establish some 

insubstantial connection between the alleged 

harm and the infringement and check the causal 

nexus requirement off the list. The patentee must 

rather show that the infringing feature drives 

consumer demand for the accused product.

Apple Inc. v. Samsung Elecs. Co., 695 F.3d 1370, 1375 

(Fed. Cir. 2012) (“Apple II”). We quoted the precise language from the latter sentence above and explicitly 

acknowledged the continuing force of this requirement in 

Apple III. Apple III at 1364 (quoting id.). The majority 

seems to ignore this consistent standard and concludes to 

the contrary that showing that a patented feature is a 

“significant driver of customer demand” is not necessary 

to prove causal nexus to the alleged lost sales. Majority 

Op. at 17. 

The majority reaches its conclusion through a peculiar 

extrapolation of four examples in Apple III, three of which 

immediately followed the “some connection” remark to 

show how the causal nexus may be met. Perhaps conceding that the facts of this case do not meet these three 

examples, the majority simply dismisses the examples as 

failing to “delineate or set a floor” for the necessary connection and that something far less is sufficient. Id. at 
6 APPLE INC. v. SAMSUNG ELECTRONICS CO., LTD. 

11 n.1. The majority is wrong: these three examples show 

what would be necessary under different factual scenarios 

and a weaker showing in each of those scenarios would 

fall short of the required nexus. See Apple III at 1364 

(“There might be a variety of ways to make this required 

showing, for example . . . .”) (emphasis added).

The majority further relies on the fourth example 

elsewhere in Apple III, one in which the nexus would be 

insufficient, where consumers are willing to pay only a 

nominal premium of $10 for an infringing cup holder in a 

$20,000 car. Id. at 1368. According to the majority, there 

must be at least a stronger connection than a willingness 

to pay a nominal premium to satisfy its “some connection” 

standard.2 Majority Op. at 11 n.1. The irony, of course, is 

that Apple’s evidence still fell short of even this meager 

and insufficient cup holder example because Apple failed 

to offer any defensible evidence on consumers’ willingness 

to pay even a nominal premium for the patented features 

over non-infringing alternatives. See Injunction Order at 

*13 (finding that Apple “d[id] not rebut Samsung’s critiques of Dr. Hauser’s techniques or show that Apple’s 

conjoint study in this case establishes a causal nexus.”).

The bottom line is that the district court’s rejection of 

Apple’s direct survey evidence was not clearly erroneous. 

This simple fact is in stark contrast to the majority’s 

contortions in an attempt to avoid it. The majority has no 

legitimate basis to reverse the district court.

2 The majority juxtaposes the examples of what 

“some connection” means and the one example elsewhere 

of what it does not cover, and then concludes that anything between the two sets of examples is sufficient. I 

don’t understand the logic and I certainly cannot embrace 

it.

 
APPLE INC. v. SAMSUNG ELECTRONICS CO., LTD. 7

C 

Hamstrung by the deficiencies in Apple’s direct survey evidence, the majority trumpets instead Apple’s 

“copying” evidence and even creates new evidence: 

Given the strength of the evidence of copying and 

Samsung’s professed belief in the importance of 

the patented features as a driver of sales, and the 

evidence that carriers or users also valued and 

preferred phones with these features, the district 

court erred by disregarding this evidence, which 

further establishes a causal nexus and Apple’s irreparable harm. 

Majority Op. at 15. All three parts of this statement are 

wrong: there was no evidence at all of such “carriers’ or 

users’ preference;” there was no “strong” evidence of 

“copying;” and “copying” alone is not dispositive to establish a causal nexus to Apple’s alleged irreparable harm 

from lost sales.

First, the majority’s “carriers’ or users’ preference” 

theory was not mentioned at all by the district court. The 

majority asserts that “[t]he district court acknowledged 

that Apple presented evidence that carriers (’721 patent) 

and users (’172 patent), not just Samsung, preferred and 

valued the infringing features and wanted them in Samsung phones.” Id. at 15. The majority again quotes 

nothing from the district court’s opinion to show there is 

such an acknowledgement. Again for good reason: there 

is nothing. As the majority notes just two sentences later, 

the district court “failed to appreciate” that the evidence 

cited by Apple “did not just demonstrate that Samsung 

valued the patented features, but also that its carriers or 

users valued the features.” Id. The district court could 

not have “acknowledged” what it “failed to appreciate.” 

The majority reaches its creative interpretation of the 

evidence to find “carriers’ or users’ preference” all on its 

own.
8 APPLE INC. v. SAMSUNG ELECTRONICS CO., LTD. 

The majority also cites nothing from the record to 

support its “carriers’ or users’ preference” theory. I can 

only guess that the majority’s “users (’172 patent) preference” theory is relying on its earlier statement that “users 

criticized Samsung’s noninfringing keyboards and wordcorrection designs,” for that is the only reference by the 

majority to anything in the record in connection with 

users and the ’172 patent. See id. at 13 (citing J.A. 

20985). The document in the Joint Appendix on page

20985, however, is merely an internal Samsung e-mail 

message that mentioned “carrier issues” with Samsung’s 

keyboard user interface and referred to a table of information immediately following. Apple’s expert, Mr. Cockburn, concluded from the table that Samsung was 

proposing to use the feature defined in the ’172 patent. 

J.A. 10700–02 (“And the next column across says ‘shows 

word in suggestion bar but does not change in the text 

field until user accepts or hits space.’ So this is the infringing method.”). Immediately below the text interpreted by Apple’s Mr. Cockburn as proposing the infringing 

feature, Samsung’s employees noted “[Carrier requests 

additional information] It is not clear exactly what the 

issue is.” J.A. 20988 (brackets in original). The carrier 

was concerned about and had some “issue” with Samsung’s proposal to change to the purported infringing 

feature; the “carrier issues” were not about Samsung’s 

previous non-infringing method.

This e-mail message mentioned no users’ or carriers’

criticisms of Samsung’s non-infringing alterative to the 

’172 patent’s method. See J.A. 20983–88, J.A. 10700–02. 

Moreover, even if this e-mail were to show such criticisms, 

a negative view towards a non-infringing feature does not 

prove a positive preference towards the patented feature. 

Consumers could have preferred many other noninfringing word correction alternatives to the ’172 patent, 

including Apple’s implementation in its “undisputedly 
APPLE INC. v. SAMSUNG ELECTRONICS CO., LTD. 9

successful” products that do not practice the ’172 patent. 

See Majority Op. at 4. 

Likewise, I can only guess that the majority’s “carriers (’721 patent) preference” theory is relying on its earlier statement that “Samsung e-mails not[ed] that certain 

carriers disapproved of the noninfringing ‘circle lock’ 

alternative,” for that is the only statement by the majority 

tying the ’721 patent to carriers. See id. at 12 (citing J.A. 

21019). The document in the Joint Appendix on page 

21019, however, is merely an internal Samsung e-mail 

message referring to a single carrier’s “negative response 

towards our company’s circle lock playing the role of the 

unlock visual cue.” The majority’s characterization of the 

negative response as a “disapproval” is much too strong 

because the response was only preliminary; the carrier 

had not reviewed an actual working sample and was 

“request[ing] to review actual working sample . . . .” See 

id. Moreover, as discussed above, a negative view towards a non-infringing feature does not prove a positive 

preference for the patented feature. The evidence cited by 

the majority of a “negative response” does not show that 

any carrier preferred the feature defined by the ’721 

patent. The majority’s “carriers’ or users’ preference” 

arguments and the factual record it builds for support 

dissolve upon review of the evidence. 

What we are therefore left with is the majority’s reliance on the so-called “copying” by Samsung to justify its 

reversal of the district court’s finding of no irreparable 

harm from lost sales. And the factual support is weak. 

The majority concedes as much in concluding that “the 

evidence may not make a strong case of irreparable harm 

. . . .” Id. at 22. 

Nevertheless, the majority states that “[t]he district 

court wrote that there was evidence . . . ‘indicative of 

copying.’” Id. at 13. The quotations upon which the 

majority relies, however, are not the district court’s find-
10 APPLE INC. v. SAMSUNG ELECTRONICS CO., LTD. 

ings. Rather, they are the district court’s recitation of 

Apple’s contentions, with which the district court disagreed. As the district court noted, “[w]hile indicative of 

copying by Samsung, this evidence alone does not establish that the infringing features drove customer demand 

for Samsung’s smartphones and tablets.” See Injunction 

Order at *14 (emphasis added). The district court, of 

course, did not mean that Apple proved copying for all 

three patents-in-suit. As the district court noted, Apple 

did not practice or allege copying of the ’172 patent. Id. 

The district court also rejected Apple’s only support for its 

contention that it practiced the ’647 patent. Id. at *15 

(finding Apple’s only evidence of its own use “did not 

directly equate asserted claim 9 of the ’647 patent with 

‘data detectors’”). Without Apple practicing these patents, 

Samsung obviously could not have copied the patented 

features from Apple’s products.

The district court also discounted Apple’s evidence of 

“copying,” because “[s]ome of the cited Samsung documents show that Samsung valued numerous other noninfringing features.” See id. In fact, Apple’s evidence of 

“copying” lacked any connection to the critical details that 

define the patented features. The handful of internal 

Samsung documents cited by Apple merely addressed 

generic or un-patented aspects of Apple’s linking and 

screen-unlocking features. For example, one internal 

Samsung analysis recommended that Samsung provide 

“Links for memo contents such as Web, Call and E-mail, 

that can be linked.” J.A. 20584. But the asserted ’647 

patent claim does not monopolize the general concept of 

linking from documents; it is limited instead by specific 

elements such as “display[ing] a pop-up menu of the 

linked actions” and more. See Injunction Order at *1 

(detailing asserted ’647 patent claim 9). None of these 

critical elements were addressed in Apple’s “copying” 

evidence. 
APPLE INC. v. SAMSUNG ELECTRONICS CO., LTD. 11

Similarly, another internal Samsung analysis compared Apple’s “unlocking standard by sliding” with Samsung’s “unlock[ing] with only a slight flick motion.” J.A. 

20347. But the ’721 patent does not deal with an innovation based on the strength and speed of the touch input, 

i.e., “sliding” versus “slight flick motion;” it requires 

instead details such as “display[ing] visual cues to communicate a direction of movement of the unlock image 

required to unlock the device” and more. See Injunction 

Order at *2 (detailing asserted ’721 patent claim 8). 

Again, none of these critical elements were addressed in 

Apple’s “copying” evidence. Merely mentioning generic or 

un-patented aspects of Apple’s linking and screenunlocking features is clearly insufficient to show copying 

of the relevant patented features.

Finally, the majority concludes that the evidence in 

this case, which boils down to Apple’s allegations of 

“copying,” is enough to show nexus to Apple’s alleged 

irreparable harm from lost sales. This conclusion is 

contrary to our precedent. As the district court stated, 

“the parties’ subjective beliefs about what drives consumer demand are relevant to causal nexus, but do not independently satisfy the inquiry.” Id. at *14. Once again, 

the district court was doing nothing more than faithfully 

following our case law. We have repeatedly affirmed the 

district court’s previous rejections of the same allegations 

of “copying” as insufficient to show irreparable salesbased harm. Apple I at 1327; Apple III at 1367. As we 

have explained, to prove nexus to the alleged lost-sales, 

“the relevant inquiry focuses on the objective reasons as 

to why the patentee lost sales, not on the infringer’s 

subjective beliefs as to why it gained them (or would be 

likely to gain them).” Apple I at 1327–28.

The district court was well within its discretion to reject Apple’s contentions of “copying.” There is simply no 

basis for this court, on an abuse of discretion review, to 
12 APPLE INC. v. SAMSUNG ELECTRONICS CO., LTD. 

reverse the district court’s denial of Apple’s injunction 

request.

D 

In sum, the majority states that “the evidence [of consumer preferences and buying choices] is to be determined 

on a case-by-case basis based on what the evidence indicates.” Majority Op. at 14. The district court did exactly 

that in this case. Given the unassailable factual findings 

by the district court, the majority faces a tough mountain

to climb to reach a reversal. 

Thus, in order to reach its result, as described above, 

the majority rests on findings of non-existent legal error, 

of “carriers’ preference” created without record support, 

and of “copying” as dispositive to show causal nexus to 

lost sales that is contrary to our case law. I must disagree 

with the majority’s approach and its conclusion that 

Apple would suffer irreparable harm from Samsung’s 

patent infringement.3

3 I also disagree with the majority’s reversal of the 

district court’s findings that remedy at law would be 

adequate. This reversal is premised on the majority’s 

disagreement with the district court’s findings of no 

irreparable harm and the majority’s acceptance of Apple’s 

contention that any lost downstream sales would be 

“difficult to quantify.” Majority Op. at 17. We noted 

previously that if “Apple cannot demonstrate that demand 

for Samsung’s products is driven by the infringing features, then Apple’s reliance on lost market share and 

downstream sales to demonstrate the inadequacy of 

damages will be substantially undermined.” Apple III at 

1371. Because I agree with the district court that Apple 

failed to show irreparable harm, I would also affirm the 

district court’s finding that Apple failed to show inadequacy of legal remedy.

 
APPLE INC. v. SAMSUNG ELECTRONICS CO., LTD. 13

E 

Finally, I also note the majority’s discussion on the 

public interest factor. I agree with the majority that the 

public’s interest in competition, without more, does not 

necessarily decide this factor against granting an injunction. But it does not follow that the public interest “nearly always” favors granting an injunction as the majority 

states. According to the majority, “[i]njunctions are vital 

to this system. As a result, the public interest nearly 

always weighs in favor of protecting property rights, 

especially when the patentee practices his inventions.” 

Id. at 21. 

The majority repeatedly relies on the statutory right 

to exclude others from practicing a patent and the public 

policy embodied in the statute. See id. at 5–6, 12, 21. But 

I am confident that we all remain mindful that pre-eBay, 

“[a]ccording to the Court of Appeals, this statutory right 

to exclude alone justifie[d] its general rule in favor of 

permanent injunctive relief.” eBay, 547 U.S. at 392. The 

Supreme Court, however, unanimously rejected that 

approach, reasoning that “the creation of a right is distinct from the provision of remedies for violations of that 

right.” Id. For the same reason, the statutory right to 

exclude should not categorically bias the public interest 

factor “strongly” in the determination of the injunctive 

remedies as the majority asserts. See Weinberger v. 

Romero-Barcelo, 456 U.S. 305, 312 (1982) (“The Court has 

repeatedly held that the basis for injunctive relief in the 

federal courts has always been irreparable injury and the 

inadequacy of legal remedies.”). The particular facts of a 

given case matter. As Justice Kennedy explained, 

“[w]hen the patented invention is but a small component 

of the product the companies seek to produce and the 

threat of an injunction is employed simply for undue 

leverage in negotiations, legal damages may well be 

sufficient to compensate for the infringement and an 
14 APPLE INC. v. SAMSUNG ELECTRONICS CO., LTD. 

injunction may not serve the public interest.” eBay, 547 

U.S. at 396–97 (Kennedy, J., concurring). 

Based on this record, I cannot agree with the majority’s broad warning that “[i]f an injunction were not to 

issue in this case, such a decision would virtually foreclose 

the possibility of injunctive relief in any multifaceted, 

multifunction technology.” See Majority Op. at 22. Rather, injunctive relief will be appropriate when and if, 

consistent with our case law, the causal nexus requirement is met. This is not such a case.