Friday, April 19, 2013

Apple and Samsung submit proposals for narrowing their second California case for trial

At midnight by local time, Apple and Samsung submitted a joint case management statement in connection with their second California lawsuit (scheduled to go to trial in about a year). I's a "joint" statement in the sense that both parties put their positions into the same document; it's not "joint" in terms of much consensus.

The case management statement, which says that no further progress toward a settlement has been made since the last report in early December, is a follow-up on Judge Koh's early-March decision to let the case go ahead but to require substantial narrowing. Both parties originally asserted eight patents (Apple in its complaint, Samsung in the form of counterclaims). For now, all 16 patents are still in play, but this number will be reduced.

Apple proposes to limit the number of patents per side to five, and the number of patent claims to 12. Samsung, which is again on the defensive (it almost completely lost the claim construction battle), would like to limit the number of asserted claims to five per side, but it wants eight invalidity theories to be allowed per claim, while Apple would set a per-patent limit of five invalidity contentions. Also, a key difference is that Samsung's proposed course of action would envision most of the narrowing to occur toward the end. Apple would like a large part of the narrowing effort to occur before summary judgment. Aparently Apple is confident that it will do better than Samsung at the summary judgment stage, in which case Apple's proposal could easily create a situation in which Samsung gets to assert fewer patents at trial, while Samsung would like to have less narrowing pressure if patents are dismissed on summary judgment. Last year all of Samsung's summary judgment motions against Apple's patents failed, while Apple defeated one Samsung patent at the summary judgment stage and won a judgment as a matter of law (after trial) agaist another one.

While the number of asserted patents and claims and the related selection process are the key issues here, another area of disagreement is the number of accused products. Last fall the parties were allowed to add various accused products to the case (examples: 1, 2). But every product means additional work for the jury and more complexity for the verdict form. There is obviously an asymmetry: Samsung produces many more different smartphones and tablet computers than Apple. If the same limit applied to either party, Apple would get to accuse only a limited subset of Samsung's product offering even if Samsung got to attack all relevant Apple products. Apple notes that even if there are many Samsng products at issue, it all comes down to only a few different Android versions that power those devices.

With the parties unable to agree it will now be up to the court to provide guidance as to how much narrowing, and in what sequence of events, is required. There will be a fight over each and every claim, and each and every product, but the post-trial mess in the first Apple v. Samsung case before the same judge (District Judge Lucy Koh) is a lot worse than the pre-trial issues in the second one.

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