Two weeks ago Samsung filed a motion for a new trial concerning its liability for infringement of the '381 rubber-banding patent or, in the alternative, a partial final judgment with respect to that patent in order to appeal the decision right away to the Federal Circuit. Either way, the limited damages retrial scheduled for November would have to be postponed, which is what Samsung is also pursuing through another motion it brought earlier this month, alleging a failure by Apple to comply with court orders, which Apple calls an attempt to "delay and derail" the limited damages retrial.
Yesterday Apple responded to Samsung's motion relating to the rubber-banding patent, which Samsung argued was narrowed in scope due to Apple's statements during the reexamination process, suggesting a different outcome of the infringement analysis. Here's the public redacted version of Apple's opposition brief (this post continues below the document):
Apple has multiple attack vectors in place against Samsung's motion. Some are procedural (among other things, Apple argues that Samsung's motion is "time barred") while others are substantive:
According to Apple, Samsung's motion can be denied simply on the basis that "[t]he evidence to which Samsung points--Apple's statements during reexamination of the '381 patent--did not exist until May 2013, some nine months after trial", while new trials based on "newly discovered evidence" can be grnated only if they "have been in exist[e]nce at the time of trial" (July/August 2012).
Another requirement is that such newly-discovered evidence must not have been "discoverable through the exercise of reasonable diligence", but Apple says it has taken consistent positions with respect to the relevant piece of prior art ("Lira") throughout the case. So Apple believes Samsung can't claim now that this is new in any way.
Apple also says Samsung's non-infringement arguments are wrong. This is a context in which the aforementioned declaration adds a lot of detail. However, Apple makes a distinction between implementations of rubber-banding that "benefit the most from that invention" (by avoiding a situation in which the end user instinctively believes the touch screen is not responsive) and others. I agree, but Samsung may have more of a case (apart from procedural arguments) with respect to some aspects of the implementations that provide lesser benefits. And in a very strict sense that could also have implications for the determination of damages.
Apple also denies that the statements it made during reexamination can be characterized the way Samsung characterized them. In my post on Samsung's motion I had also expressed some doubts in this regard.
Apple says "[t]his case is within striking distance of a true final judgment" and wants to "proceed with the trial".
While Apple has multiple lines of defense and reasonably proposes to go forward with the limited retrial and then take everything to the appeals court, there's certainly a risk here for Apple that Judge Koh might seize this opportunity to delay the damages retrial, hoping that it may never have to happen if the parties settle before the rubber-banding issues is adjudged by the appeals court. I doubt that Judge Koh would hold a new rubber-banding liability trial, but it wouldn't require much effort on the court's part to issue a final judgment on that patent. But Apple's opposition brief argues that such a partial ruling would not be appealable, at least not under the case law Samsung cites to. (And I generally don't believe that a mere delay brings these two parties closer to a settlement -- they need real guidance).
I still think Samsung's motion was absolutely legit, but it will be hard for Samsung to overcome Apple's various lines of defense against it.
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