View this article at: //
Thursday, Dec 06, 2012 10:25pm
Apple versus Samsung hearing completed; no rulings made
The first post-trial motion hearing in front of the judge for the landmark Apple versus Samsung smartphone patent trial has concluded. As expected, Samsung's arguments about juror misconduct were heard, as well as Apple's insistence that the jury verdict stand. Judge Lucy Koh declined to rule on anything today, and is expected to dole the orders out "in installments" over the next few weeks, possibly into 2013.

From the beginning of the hearing, even as the judge took the bench, she noted that she had "quite a number of questions" for both parties. Judge Koh focused her initial discussion on products that the jury found did not infringe Apple's design patents, just utility-type patents, such as tap and zoom.

One device focused on, the Samsung Prevail smartphone, was originally found to be an infringing product, and the jury awarded $151 million on just the one model. Ex-Dean of Stanford, Samsung attorney, and patent law expert Kathleen Sullivan claimed that the jury's award was "legally unsustainable" and based on flawed law and bad math by the jury. Reiterating a failed argument from the trial, Sullivan also claimed that the judge should excise $600 million of the verdict, because she believes that Apple failed to put formally notify Samsung on notice of patent violations prior to the lawsuit.

Apple sought sales embargoes on 25 Samsung products, but the judge seemed skeptical. Sullivan pointed out that of the more than 20 phones accused directly at the trial, only three of them are still available at retail. The jury found the majority of the 20 phones infringing on design patents on the iPhone 3G and 3GS, which are also no longer found at retail. The judge wondered that if Apple was no longer using that particular trade dress, then "how would Samsung's use harm Apple?"

"We have a strong sense of residual goodwill," replied 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 it. 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."

Judge Koh declined to order more settlement talks because they haven't been successful, even with face-to-face CEO meetings that took place before the trial started. Seeking "global peace," Koh believes that a settlement between the two "would be good for consumers, it would be good for the industry, I think it would be good for the parties." Samsung claimed that they were willing to talk settlement, and declared that the ball was in Apple's court.

Despite what is widely regarded as having a slim chance of success, senior partner and Samsung attorney John Quinn finished the hearing with accusations of Velvin Hogan's misconduct as the jury foreman, and his failure to disclose his lawsuit with Samsung partner Seagate during jury selection. Quinn argued that the foreman lied to get on the jury, and if he had revealed the suit he wouldn't have been seated. The Judge seemingly dismissed this argument, and noted that he did declare he worked for Seagate, and wondered why the Samsung attorneys hadn't asked any more questions of the then-potential selectee.

Apple attorney Harold McElhinny addressed Quinn's press release during the first day of the trial, "leaking" information that was prohibited from being addressed during the trial. McElhinny said that Hogan was "dragged into this case" and that he "can't defend himself" during this hearing. He added that "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."

Judge Koh did not comment on the misconduct allegations specifically, but cast doubt on the possibility of it being a factor by pointing out that Apple had been duly diligent of informing Samsung about Hogan's lawsuit as soon as it knew about it, saying "I think that topic has been fully briefed." A second Apple vs. Samsung patent trial, this time covering different patents and products, is set to begin at the end of March.