Apple and Samsung went to court on 6th December to argued their case in-front of Judege Lucy Koh. Apple is seeking to have the jury verdict in August upheld with additional damages awarded. On the other hand Samsung is seeking to have a retrial.
Judge Lucy Koh has carefully listened to both parties argument and has promised to give her ruling in the coming weeks.
According to Reuters:
[quote] Koh began by questioning the basis for some of the damages awarded by the jury, putting Apple’s lawyers on the defensive.
“I don’t see how you can evaluate the aggregate verdict without looking at the pieces,” Koh said.
Samsung’s lawyers argued the ruling against it should be “reverse engineered” to be sure the $1.05 billion was legally arrived at by the jury and said that on that basis, the amount should be slashed. Apple countered that the ruling was reasonable.
“Assuming I disagree with you, what do I do about Captivate, Continuum, Droid Charge, Epic 4G, and Gem?” Koh asked Apple’s lawyers, referring to the jury’s calculation of damages regarding some of Samsung’s devices.[/quote]
Arstechnica has a more indept take on the Hearing. “Judge Koh seemed skeptical about both Apple’s desire to kick Samsung products off the market with an injunction, as well as the company’s efforts to grab more than $500 million in additional damages,” Joe Mullin writes for Arstechnica. “She also indicated she’s inclined to invalidate at least one of the patents that led Apple to victory, saying that its claims might be too indefinite.”
Here are some snippets from the Arstechnica report:
[quote] There aren’t many infringing phones left, though. During the hearing, Samsung lawyer Kathleen Sullivan said that out of the more than 20 Samsung phones accused at trial, only three of them—all different versions of the Galaxy S II—continue to be sold. Retailers have a stock of about 70,000 of those phones, said Sullivan.
The jury had found that Samsung phones infringed the trade dress for the iPhone 3G and iPhone 3GS, but Apple doesn’t even make those phones anymore. That led Koh to an obvious question: “If you are not using the trade dress yourself, then how would Samsung’s use harm Apple?” she asked.
“We have a strong sense of residual goodwill,” said Apple lawyer Michael Jacobs. “The 3G and 3GS design is going to be linked to Apple for as far as the eye can see. When someone uses the 3G or 3GS in a movie or product placement, it’s going to be recognized as an Apple phone—unless Samsung is allowed to dilute [our trade dress].”
Jacobs continued: “That velocity that Samsung gained in the market? That’s happening today, tomorrow, and the next day. That’s an onslaught. They got that leg up through the Galaxy line in 2010 and 2011, the diluting products. And that leg up? That 30 percent plus of the market they have, unless they somehow stumble badly? That continues.”
Koh was still skeptical. “If it’s off the market, where is the irreparable harm? It’s gone.”[/quote]
[quote] Koh started off the hearing by suggesting that she may find the ‘163 patent, Apple’s patent on the iPhone “tap to zoom” feature, invalid because it’s “indefinite”—in other words, too vague. It was the first issue to come up, and it immediately put Apple on the defensive.
“I find Samsung’s argument on this patent persuasive,” she said. “I want to know why the ‘163 patent is not indefinite.”
Jacobs stepped up to the podium. “The legal standard is very high” to prove indefiniteness, he said. Samsung would have to show that the language of the ‘163 patent is “insolubly ambiguous.”
Koh pressed ahead. “If I don’t agree with you, what do I do with the 4G, the Replenish, and the Prevail, which were found to infringe the ‘163 patent as well as one or two [others]… Do we need another trial on damages?”
“I think the answer is, you don’t even reach that unless you decide the verdict can’t be sustained,” said Jacobs.
Apple lawyer Harold McElhinny urged Koh to consider the jury’s verdict as a whole, not piece by piece. Every phone that infringed the ‘163 patent was also found to infringe at least one other patent, he pointed out. “We were awarded less than half of what we asked for,” said McElhinny. “We don’t think this verdict number turns on any one patent or IP right.”
“Wouldn’t that be a windfall to Apple?” asked Koh. “If the jury found two or three patents were infringed, but it turns out only one or two are?”
No surprise, two Samsung lawyers, Kathleen Sullivan and Charles Verhoeven, practically jumped up to endorse the idea of a new damages trial. But Koh made clear that if there was to be a damages re-trial, it would only be for a few products. “Why do I need to re-try everything, if there aren’t errors in awards for those prodcuts?” she asked.[/quote]
[quote] “When is this case going to resolve?” asked Koh near the end of the hearing. “Is there an endpoint here? Are there some additional data points you’re waiting on?
“I’ve said this all along, I think it’s time for global peace,” said Koh in one last plea for settlement. “I’m more than prepared to issue orders, you’ll pick this up on appeal. But if there’s any way this court can facilitate some type of resolution, I’d like to do that. It would be good for consumers, good for the industry, and I think it would be good for the parties.”
The two companies still seem worlds apart, though. First, Apple’s McElhinny stepped up to respond to Koh’s plea.
For Samsung, these are dollars and cents decisions. They make the decision every day of how close they’re going to get to the line. When the courts can catch up to them, and what happens when they do, is a mathematical calculation. They have placed their bet—successfully, so far. Look at market share. Eventually it will come to this court, and the power of this court, to establish a line. If the answer is, congratulations, you got a billion-dollar judgment—out of the 7 billion in revenues we got [from these phones]—that is the slap on the wrist.
If there’s a new trial on damages, or no injunction—if you didn’t see the same case that the jury saw—then I’m not sure. I’m not sure how we get a resolution.
Samsung’s Verhoeven took the podium next.
As you know, our view is dramatically different. We see what Apple is doing. It’s an intentional engagement of “thermonuclear war,” throughout the world. It’s an attempt to compete in the courthouse rather than the marketplace. [After the preliminary injunction] Apple went to our customers and misused the “colorably different” langauge, and told them they couldn’t sell any of our phones. They’re using any results they get through the courts to clobber our name and prevent us from competing in the marketplace fairly, on the merits.
We don’t think they’re trying to establish boundaries. They’re trying to cloud things and use the courthouse to compete with us. From our perspective, Your Honor, we’re willing to talk. The ball is in their court.[/quote]
[quote] It seemed like the issue of lead juror Velvin Hogan wouldn’t even come up. And indeed, Koh never brought it up. But Samsung lawyer John Quinn did.
Quinn, who sparred with Koh more than any other attorney during the summer trial, loped up to the podium and looked down at his papers as he made his arguments. He argued for close to 10 minutes; Koh didn’t make eye contact with him.
What do we know about the foreman in this case? Foreman Velvin Hogan. We know that he was dishonest when the court questioned him during jury selection. And we know from interviews that he very much wanted to be on this jury. He told reporters it was the high point of his career, the high point of his life except for the birth of his children. When he got on, he was very grateful.
He failed to give the key information about the suit he had had with Samsung’s partner, Seagate.
He was dishonest. He was deliberately dishonest. We know that. It was an important issue. It was one year ago that this partnership between Samsung and Seagate was very widely publicized, picked up as headline news in newspapers around the world. Samsung became Seagate’s largest shareholder, owning 12.5 percent.
He told the reporters what he did not tell this court. We have a case here that he should have been excused. We didn’t have a chance to develop that. This was not a juror who was indifferent to jury service. He wanted to be on the jury.
Initially the jury was deadlocked, perhaps favoring Samsung. But overnight, he [Hogan] thought about it and had an “a-ha” moment.
Koh then asked her only question about Hogan. “He disclosed he worked for Seagate. Why didn’t you ask a question during voir dire [jury selection] about his relationship with Seagate?”
“He led us to believe he had no litigation with Seagate,” answered Quinn. “That would have been very important for us to know. We would have followed up on it, and likely made a case [to dismiss him] for cause. We were left with the impression there weren’t any issues between him and Seagate, certainly no legal issues.”
Hogan should be questioned about those issues in court, said Quinn, and the other jurors should be asked about Hogan’s influence on the process. “We submit it would be an abuse of the court’s discretion, at this point, not to hold a hearing.”
Bill Lee, representing Apple, responded on the jury issue.
What Samsung has told you is that the jury foreman lied. Not true. They said that he was dishonest. Not true. They say he harbored a grudge for 19 years. That he knew that 11 months ago, Samsung had acquired 10 percent of Seagate. They say that it was his goal in life to get on this jury, and injure this shareholder, for something Seagate did 19 years ago. That doesn’t make any sense.
We believe in the integrity of jury verdicts. The difference between now and July is that Samsung has been found by eight folks, who sat here for four weeks, to be an adjudicated infringer. They don’t get the benefit of the doubt any longer, when they call Mr. Hogan a liar. He’s not.
Apple’s McElhinny stood up and added one last point.
“This was a hard fought case,” he said. “Velvin Hogan was not involved in this case. When I read in the press that we had a juror—in a patent case—who said it was a high point for him—I thought that was terrific. I thought the court should have done an outreach film featuring him.
He urged Koh to issue a ruling on the jury issue that would make clear to the public that going after a juror post-trial wasn’t right.
“This motion was just an unprofessional motion, in a case in which no stone was left unturned,” said McElhinny.
Koh didn’t give a hint of how she might rule on that one. “I want to thank all of you for your patience today,” she concluded. “I will try to get these orders out as fast as I can.”[/quote]