Saturday, May 19, 2012

Samsung tries to mitigate impact of court sanctions for belated source code delivery

Two weeks ago, Magistrate Judge Paul S. Grewal imposed relatively tough sanctions on Samsung for its non-compliance with a court order to provide to Apple's lawyers the source code of workarounds for certain patents by December 31, 2011. Those sanctions limit Samsung's ability to present certain kinds of evidence at the trial that is scheduled to start on July 30. As a result, Samsung might be held liable for violations beyond the period during which they actually occurred, and some or all of its efforts to avoid continued infringement might not be taken into consideration, which could increase the likelihood of triple damages and, even worse for Samsung, an injunction.

Samsung's lawyers have meanwhile taken two closely-related initiatives that can be described as damage control. On Tuesday (May 15), they filed a motion for "clarification", which will be discussed at a June 19 court hearing; and late on Friday (May 18), they also brought a "conditional motion for relief from nondispositive pretrial order", which is basically an appeal of (parts of) Magistrate Judge Grewal's sanctions to Judge Koh. The motion is conditional in the sense that Samsung files it "solely as a precautionary measure to avoid waiver of Samsung's objections to the order": the motion is only filed for the event that the motion for clarification is decided "in whole or in part against Samsung".

Samsung is clearly trying hard to avoid confrontation with the court. It tries to achieve its objective -- to receive permission to present certain kinds of evidence relating to its workarounds -- with a motion for clarification and seeks to avoid an appeal; and in both motions, Samsung limits its requests to a subset of the issues (though the effect of any one of those motions being granted would greatly reduce the impact of the sanctions imposed).

This the evidence Samsung hopes to be allowed to present:

  1. "Source code for the blue glow function as evidence of Samsung‘s efforts to design around the '381 patent; and

  2. Evidence of design-arounds and non-infringing alternatives [to the '381 and '163 patents] other than source code produced after December 31, 2011."

The '381 patent is the "rubber-banding" patent. Samsung claims that it produced some source code for it s "blue glow" workaround on December 30, 2011 (one day before the deadline). "According to Samsung's source code inspection logs, Apple's experts inspected the blue glow source code on January 6, 2012, and received printouts of the code on January 9, 2012."

Apart from this, Samsung wants to be able to present evidence of workarounds other than source code, even if such evidence was produced after the December 31, 2011 deadline for source code production. With respect to the '381 "rubber-banding" patent, source code isn't necessary to identify a non-infringing implementation: one can actually see it without having to understand the inner workings of the code. Source code is usually necessary to demonstrate infringements of patents that cover operating system functionality such as memory or event management -- but user interface features are usually visible, which benefits plaintiffs if there is an infringement and defendants if a workaround is in place.

Apple will now get to respond to Samsung's motions. Apple has a vested interest in ensuring that these sanctions still have a serious punitive effect. But I wouldn't be surprised if the court provided some kind of clarification that enables Samsung to present at least some kind of evidence relating to its workarounds.

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