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Apple vs Samsung: Koh denies retrial request over 'racist' remarks

updated 05:18 pm EST, Sat February 8, 2014

Dings Apple attorneys for appealing to patriotism, denies Samsung's motions

The difficult maze that is the US patent battle between Apple and Samsung is sometimes hard to fathom, with a second patent trial (involving different patents) coming up at the end of March while matters left over from the first trial -- and its subsequent retrial on a portion of the damages -- is still being decided. Late on Friday, US District Court Judge Lucy Koh -- who has presided over the battles -- made further rulings with respect to the first trial, which Apple won.

Judge Koh denied both Apple's and Samsung's requests for judgements as a matter of law (JMOL), which would have altered the result of the retrial on a portion of the damages Apple won from Samsung for infringing on its patents. Originally, a jury awarded Apple just over a billion dollars in damages, but Judge Koh questioned the calculation methods used by the jury on some of the affected products, and ordered a retrial on roughly 40 percent of the total damages award, so that the amount could be recalculated.

Last November, the retrial for the disputed damages was held, and Apple won again -- though it was rewarded a reduced amount, the reduction was not substantial compared to the overall award and finding of guilt on the part of Samsung. The disputed amount fell from $410 million to $290 million -- meaning the total, final amount of damages Samsung owes Apple was reduced from $1.03 billion to $929 million. In Friday's hearing, Apple asked for the full amount to be restored, while Samsung asked both for the disputed damages to be dismissed as well as requesting a retrial of the damages retrial, essentially a "do-over" on the disputed amount. All these requests were denied.

One of the theories Samsung floated in requesting a retrial was an allegation that Apple's attorneys, including Chinese-American attorney Bill Lee, made "racist" remarks that appealed to the jury's racial and national makeup during the damages trial. Lee had mentioned that it was possible that some information discussed during the trial, taken from non-English-speaking Samsung executives (who did not appear at either trial), may have been lost or distorted in translation. Harold McElhinny, Apple's lead attorney on the case, took time in his closing remarks to jurors to remind them that Silicon Valley and other American industries "depend on fair competition. [They depend] on a patent system that encourages inventors to invent ... it encourages investors to invest, and it encourages employers to hire," and cited the formerly US-dominated television industry as an example of what happens when US companies "couldn't protect their ideas" and "didn't protect their intellectual property."

Samsung's attorney, Bill Price, immediately asked the judge for a mistrial based on what he saw as McElhinny's "rascist" remarks. Both Lee and McElhinny pointed out that the comments had nothing to do with race, and were intended only to emphasize the importance of countries protecting their intellectual property. Koh denied the motion for mistrial at the time, and denied it again at Friday's hearing -- but did express concern over McElhinny's appeal to patriotism and nationalism, as he implied to the locally-based jury that the region's affluence could be threatened if foreign companies were allowed to continue infringing US patents without serious consequence.

Patent case analyst Florian Mueller reports that Judge Koh found the remarks "troubling." The ruling added that "the Court expresses its disapproval and disappointment in the comments that led to the instant motion [for a retrial of the retrial]," and said that with regards to the second patent trial coming next month that counsel "are encouraged to be mindful of the important role that lawyers play in the actual and perceived fairness of [the US] legal system as they prepare for and litigate the next round of this patent dispute."

Mueller believes that the judge determined that the remarks were an "isolated statement" as opposed to a tactic used throughout the trial, and that the court's instruction to the jury (made shortly after the motion for mistrial) to disregard any feelings of national or racial bias and final (reduced) damages to Apple were evidence that the jury did not base its decision on nationalism. Judge Koh, who is herself of Korean heritage, did note a study in her ruling by another Federal Circuit judge that pointed to an existing bias in patent cases, where foreign patent holders charging infringement by domestic companies were far less likely to win than in cases where the reverse was the case (38 percent to 82 percent, respectively), which along with other factors suggests the existence of a xenophobic bias in the US patent legal process.

The reverse, however, is also true. To date, Samsung's only win over Apple in the case of patents not deemed standards-essential was a split decision in Samsung's home country of South Korea. There, the judge found both Apple and Samsung guilty of violating each other's design patents (the decision was later reversed on appeal). In other courts worldwide,Samsung has yet to achieve a win of any kind over genuine Apple infringement of non-SEPs, though it did gain a Netherlands judgement against Apple over a standards-essential patent. Samsung also won a widely-criticized ITC decision on a standard-essential patent, but the ruling was reversed by the Obama administration. Both Apple and the US government have repeatedly pushed courts and the International Trade Commission to stop allowing disputes over SEPs to be litigated, or for SEP holders to pursue product bans -- arguing that the tactic is used as leverage to strong-arm better deals on non-SEP licensing.

Mueller notes that Judge Koh has tried on repeated occasions to avoid any show of favoritism to either Apple or Samsung in this case, and that he believes the dropping of the Department of Justice investigation into Samsung's SEP bullying tactics was motivated in large part by an effort by the government not to appear biased in favor of Apple, after the iPhone make won a Presidential reversal of an ITC ban on some of its products in a dispute with Samsung over SEPs.

Samsung has allegedly vowed to bring the matter up again in post-trial filings, but with Friday's rulings the first Apple-Samsung trial inches closer to final judgement, setting the stage for its appeal.

by MacNN Staff



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