"Apple is correct that it is entitled to file a response to a 'final' rejection within the period allowed for response, and that the response may still result in the Examiner's withdrawal of the rejection or allowance/certification of the claims under reexamination." the Judge wrote.
Apple will also be affected by a stay as already one year and three months after the jury verdict, the company still has received no damages award as compensation because of the retrial, Judge Koh wrote. A stay of the entire case, pending a final decision on the '915 patent, "would thus substantially prejudice Apple," she added.
Rather than wait for a review after a USPTO decision and a PTAB review, it would be more efficient to move forward with post-trial motions concerning the damages retrial and enter a final judgment in the case so that the Federal Circuit may as soon as possible review the entire case on appeal including the validity of all of Apple's patents, the Judge wrote.
"If Samsung is truly concerned about efficiency, the Court encourages Samsung to discuss with Apple an agreement to forgo post-trial motions so that the parties can expeditiously appeal this entire case to the Federal Circuit," she added.
If the Federal Circuit finds other errors with either the 2012 trial or the limited damages retrial, this case will have to be retried again anyway, the Judge noted.