Sure. If you naively assume that lost sales/revenue is just for the iPhone device itself.
But every lost sale of an iPhone is also one less person within the ecosystem. An ecosystem that plays off each of its elements to drive revenue e.g. iPhone user buys movies which they can only watch if they buy an AppleTV etc. It's borderline impossible to quantify all of the indirect revenue Apple would lose not just now but in the future.
There's a technique pretty much every company that knows what's it doing applies to figure out exactly what you mentioned and it's called downstream impact analysis.
I'm absolutely 100% certain if you're an executive at Apple and you ask your finance department what the downstream impact is of an iPhone sale the finance department will come back with numbers for the profit variance when the customer wasn't already a customer, when they already were and a bunch of other scenarios.
In the words of the court, "The Court finds that the full extent of these losses would likely be unascertainable, difficult to calculate, and irreparable."
And I fully agree that the finance department would be able to calculate the expected profit per customer for today's products. But what about tomorrow's ? And the next year ?
Apple locks in the user at multiple points: apps, movies, TV shows, books, accessories etc.
You're using circular logic. "The court finds theory of irreparable harm to be plausible because the court finds that the full extent of these losses would be irreparable."
OP's entire argument is that the court's finding is incorrect and that's why its a victory for Apple's lawyers -- I think you're severely underestimating the forecasting techniques used, especially in a company as competent as Apple.
The OP did not address this argument, but merely asserted that no irreparable harm would be done because you could simply pay damages. The court has said that calculating damages is impossible.
It doesn't seem to me that incalculable implies irreparable but it's certainly a defensible position.
If the RIAA can sue Limewire for more than the GDP of this entire planet[1] for damages from file sharing, surely Apple can sue Samsung for downstream damages within their ecosystem.
Following from that logic, what about the harm that Apple is doing to the Android ecosystem by preventing the sale of these phones when they are supposed to be sold? If Apple can't prove what it claims, then what of the phones that are not sold in the meantime? Is that equivalent to the value of the bond? Where does that money go?
Disclaimer: I am in no way a lawyer, but I think my familiarity with law is about the same as the familiarity of the judge with technology.
I think it's unfortunate that taligent has been downvoted into the negatives, because he (or she) is correct.
How much is market leadership worth? How big of a check would Apple have to write RIM to restore their market advantage? How big of a check would Apple have to write Nokia to put them back where they were in the marketplace 4 years ago?
I'd argue that there is no check large enough to restore a lost market advantage. If Apple won their current market position through innovation, and Samsung is eroding it by taking advantage of that innovation counter to patent law, there's no reasonable amount Samsung could pay to set things to right.
Shouldn't the plaintiff though be the one to take on that risk?
If the damage of losing market share is truly irreparable, then the court would be doing irreparable harm to Samsung on the basis of Apple's unproven allegations.
As I understand it, a court ruling like this is based on an initial assessment by the Judge that Apple is likely to win, as the patent(s) are currently valid and it appears (to the Judge) that Samsung is violating them.
"If Apple won their current market position through innovation, and Samsung is eroding it by taking advantage of that innovation counter to patent law, there's no reasonable amount Samsung could pay to set things to right."
Let us say that first "If" is held by the judge as a given and that allows for him to deny the same rights to the other party. How does that work at all ?
When one of these gets overturned "there's no reasonable amount" Apple "could pay to set things"..."right.". How is that loss calculated ? Is it calculated at all ?
This automatic assumption after the cry wolf turns to nothing in the end and the plaintiff abused the law and the courts to retain commercial position while trying to cement its stand through jurisprudence.
This is a sad state of things and points to a needed overhaul, if not, it will just go on and on until it breaks in the end. Billions of dollars later, the "leaders" will have chocked everyone else not because of innovation but because of bad legislation that assumes too much at the preliminary stages based on incompetent assertions that cannot be equated like other parts of the law. Yet, here we are.
> I'd argue that there is no check large enough to restore a lost market advantage.
I think you're considering the status or intangible satisfaction of being the market leader. That is not what Apple's shareholders are interested in. They are interested in money. If Apple had the choice between getting a check for all the money they would ever earn for all their products and liquidating the company, vs. remaining in business, they would close their doors, cash the check and pop the champagne. And that check would be worth much more than a "lost market advantage."
Now they're probably not going to get such a check. But if not that's because the court will deem they don't deserve it. But the real reason they want this is that it will clearly do much more harm to Samsung than it will diminish their case against Samsung, better yet, they still get to bloody Samsung's nose even if the court eventually rules against them!
Apple hasn't innovated into market leadership for status or intangible satisfaction. They've done it because that's what you have to do to keep those "big checks" rolling in.
If Samsung gobbles up market share, a big check won't bring that back, and a check big enough to account for it would probably bankrupt Samsung (assuming you could ever calculate what that numer would be).
Let's pretend that Samsung drove Apple out of business by rapidly copying Apple's R&D and competing directly on price. Just how big of a check would be required to set things to right?
We can use an analogy instead of hypotheticals. Imagine I've stockpiled grain for the winter. Winter has arrived, and suddenly, so does the army. They commandeer my grain and promise to write a check for its market value. The next spring, I get the check in the mail. Unfortunately for me, my family already starved.
> If Samsung gobbles up market share, a big check won't bring that back...
This is just the point I'm trying to make. Apple doesn't want market share, so they don't care if it goes away for its own, sake, they care if it goes away if they lose money. That market share has a cash value to Apple that the jury could award them if they win their case.
> my family already starved.
Yes, exactly, that is irreperable harm. Whereas in this case, nobody is starving. Apple is losing some finite amount of money, and some finite potential for future earnings, which they are suing Samsung for and could be awarded in damages if the jury sides with them.
In the limit, imagine Samsung stole the whole market from Apple. The jury could award Apple the total market value of Samsung. That would literally be the value of whatever market share Samsung had "stolen" from them.
Unlike life, market share has a finite cash value.
Why are you bringing up such a hypothetical, when clearly Apple isn't anywhere near starvation at all from the impact of the Nexus? If they aren't near starvation, why should they recover the maximum "lost market advantage", if that would only increase the likelihood of them becoming a monopoly?
If there is real infringement, why not offer Samsung the option of licensing the patent at a court-determined price? And shouldn't economic/market-health considerations be taken into play? Current law might not allow for these two points, but maybe they should be considered.
> Why are you bringing up such a hypothetical, when clearly Apple isn't anywhere near starvation at all from the impact of the Nexus?
The analogy was intended to demonstrate that when you purloin (or commandeer) someone else's property, it's sometimes impossible to restore their previous hypothetical future, no matter how much money you throw at them.
Apple may not starve, but they may very well be irreparably harmed.
> If there is real infringement, why not offer Samsung the option of licensing the patent at a court-determined price?
See my grain commandeering analogy for why. Apple doesn't want to license these patents to Samsung, because Apple clearly thinks the temporary government-granted monopoly is worth far more than any reasonable licensing fee.
> And shouldn't economic/market-health considerations be taken into play?
> it's sometimes impossible to restore their previous hypothetical future, no matter how much money you throw at them.
And my point is, why should it be necessary under the law to restore their hypothetical future?
The law doesn't presume to restitute the full losses of people whose property is destroyed by others' acts. I don't have the impression the law generally aims to completely undo big violations of others' rights or contractual terms, only to punish or provide partial restitution after the fact; otherwise we'd be seeing big reversals and small startup Davids suddenly overpowering Goliaths who had unfairly crushed them out of existence.
Not that this even applies in this case; Apple is no small scrappy David, and it's relying on imo broken patents.
> Apple doesn't want to license these patents to Samsung, because Apple clearly thinks the temporary government-granted monopoly is worth far more than any reasonable licensing fee.
I meant that the court should compel Apple to offer the licensing option, not that it would benefit Apple to do this. Ideally, though, the court should simply overturn the patents (which I hope is done in the subsequent hearings). Patents on metasearch, linkification and slide-to-unlock simply threaten the rest of the industry.
Apple can't get back lost sales and revenue as a result of patent infringement by their direct competitor.