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Comment by kemayo | Hacker News Reader

Pausing the ban during appeals seems generally reasonable. After all, the point of there being an appeal is that the case isn't actually settled yet, so leaving the status quo in place until it is seems less-harmful overall. Possibly with some kind of clawback requirement for if the appeal fails.

Apple's argument was that it was being irreparably harmed by having to take the Watch off the market. Not for lost sales, which are reparable by handing money to Apple, but for the reputation / goodwill cost of consumers being exposed to the turmoil. (There's established case law that this does count as irreparable, so the main question would be whether they're really being harmed in that way.)

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> After all, the point of there being an appeal is that the case isn't actually settled yet

Appeals aren't retrials, though.

To get to a retrial you'd need the case (or a part of it) thrown out, in which case the ban should definitely be invalidated until the new trial happens.

Generally an appeal like this is just a short pause while they work out whether there's more that needs to be done in the case, and so it hurts less to stop the ban for a few days while that's happening. Then if it actually goes up to an appeals court for more expensive lawyer-work the issue would indeed still be undecided and the pause should continue. For a company that's not a behemoth like Apple you could certainly imagine a poorly-decided import ban causing them to run out of money to fight it, after all.

> Then if it actually goes up to an appeals court for more expensive lawyer-work the issue would indeed still be undecided and the pause should continue.

Not sure I understand this logic. There are basically two outcomes- either customs decides it is okay to be imported and the ban is lifted or it decides it should be upheld and the ban remains. If it were to be appealed to a higher court and then have the ban reinstated as you say, why would it make sense to pause the ban and then reinstate it when it goes to appeals since it’s already in place? Seems it should be upheld until a higher authority says it no longer needs to be upheld. I’m not sure I understand why third parties are still allowed to violate a ruling, either.

Apple's saying that the import ban will hurt them in ways that can't be fixed, and so it makes sense to stay it until their appeal decides what's going to happen. It's why this stay is only for ~2 weeks, because that's all they think is needed to get to a more-permanent decision from the appeals court.

The idea is that harms that can't be fixed (by e.g. ordering someone to pay money) should be avoided until the system has settled on a definite answer.

> I’m not sure I understand why third parties are still allowed to violate a ruling, either.

The ruling is just blocking imports, not sales. I don't think that Apple is actually required to freeze its own sales, per se, but they're very just-in-time for stock so it was an effective ban for them unless they wanted to stockpile.

Third parties are thus able to sell through whatever stock they have.

The court can decide it should be upheld but also simultaneously decide the ban was an overreach and order some different type of remediation.

i.e. There's more then 2 possible scenarios.

It's not paused during appeal, it's only paused until motions close on Jan 16th (or around then)

This was an ex parte stay, so is only in place until everyone finished briefing.

The bond requirement is still in place but the ITC set the bond at $0 so the appeal bond is also $0 anyway ;)

> Pausing the ban during appeals seems generally reasonable. After all, the point of there being an appeal is that the case isn't actually settled yet, so leaving the status quo in place until it is seems less-harmful overall. Possibly with some kind of clawback requirement for if the appeal fails.

How many levels of appeal should this apply to?

Recall that Apple is appealing the decision of an agency, not a court. Staying an agency's decision until an actual court can review the agency's decision makes sense. An analogy: migrants seeking asylum in the USA should be permitted to remain in the USA until their appeals process is completed even after an immigration judge decides not to grant the asylum-seeker asylum.

That's a terrible example. It onky holds true for actions that are irrevensible or interfere with the legal process.

Capital punsihment is also not administered untill appeals are finished.

Obviously you can't attend a court hearing if you have already been killed or deported.

> Obviously you can't attend a court hearing if you have already been killed or deported.

I wouldn't be surprised if there were a reversion to the "remain in Mexico" policy in the coming months. This flipped the presumption on whether the applicant was going to prevail on the merits, presumably because such a small percentage do ultimately qualify. There is a growing sentiment, including in bright blue cities, that the current system, which presumes applicants will qualify for asylum, is not tenable.

Interesting example. There are plenty of other examples that go the other way, for example if someone is found guilty of a crime but is appealing it. The default rule is that you are imprisoned during appeal. This is of concern to Trump supporters right now, since the precedent is so strong that it's not clear that being a top candidate for POTUS may not be enough to warrant an exception.

Guilty of a crime implies an actual judicial proceeding, not an administrative proceeding. Administrative proceedings occur under the powers of the executive branch alone.

As many as you are entitled to (which is not infinite)

There are only two levels of appeal in normal federal court, and the second (SCOTUS) doesn't take many cases.

I'm aware of the levels of review (IAAL), but the point is that these two levels of appeal could completely moot the situation because of the time delay involved.

Howso? If the plaintif wins they can be compensated by their back royalties for all the watches Apple already sold.

Because it drastically shifts the bargaining power of the parties. The whole point of injunctions (which is what the ITC is able to order) is that they are prospective, not retrospective. If injunctions can be put on hold until all appeals are exhausted, as suggested above, that has a huge effect on the timeline on which this all plays out. Appeals take significant time, and Apple's refresh cycle is annual.

Also, some plaintiff's might have a hard time paying for all of the appeals — if a large defendant can simply wait them out, without regard to wins in courts of first impression, that is a boon for deep-pocketed companies.

Why can't they simply pay to license the patent to put their product back on shelves while litigation continues?

They absolutely could, but they don't want to.

If there is a ban for consumer safety reasons, say in food, health, agriculture, transport, is it reasonable to pause a ban?

We're not talking about consumer safety reasons here, and I was talking about a default posture not an absolute rule. The reason a judge has to approve pausing the ban is to work out whether it should happen in that particular case.

This isn’t that

But this is a ban due to alleged patent infringement (or alleged abuse of the patent system, depending on one's opinion of Apple) - comparing this to a public harm/public-benefit scenario is a distraction.

And to add to that - there's no harm in allowing the sale of these devices to continue, because if the court upholds the ruling then Apple could always be sued for damages during that time(and there is no risk that Apple would not be able to pay it).

The risk is that consumers will be shafted by buying a product today that apple refuses to support later because they weren't actually allowed to sell it.

> that apple refuses to support later because they weren't actually allowed to sell it

This is a separate—and reparable—set of harms.

That's not a risk, because there's zero chance that Apple just abandons their latest Watches.

The worst possible outcome for customers is that Apple pushes a software update to disable the feature, but it's a fairly useless feature for most people.

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