Friday, August 23, 2013

Judge Koh denies Samsung motions to delay Apple's November retrial on damages

On Thursday evening local time, Judge Lucy Koh, the federal judge presiding over two Apple v. Samsung lawsuits in the Northern District of California, entered a case management order that summarizes her rulings at a case management conference held on Wednesday and confirms that the limited damages retrial scheduled for November will go ahead as planned. The order, which refers to the reasons stated on the record (but does not elaborate on them in any way), denies two Samsung motions designed to throw a monkey wrench or two into the works of Apple's pursuit of actual, enforceable remedies for infringement:

  • In early July, Samsung complained that Apple was seeking "vastly greater damages" with respect to the 13 products at issue in the retrial (compared to what a federal jury awarded last year with respect to the same products). Instead of raising objections to Apple's new damages report (authored by a new damages expert due to the death of last year's expert) in the form and at the point in time envisioned by the court, Samsung asked for relief from the case management order governing the preparation of the retrial. Samsung attempted to persuade Judge Koh that Apple's damages claims were a blatant violation of court orders and that, as a result, Samsung could not properly defend its rights under the relatively tight schedule set by the court. Apple responded that Samsung was "simply seek[ing] to delay and derail the damages retrial".

    While Samsung's motion to vacate the whole retrial schedule was denied, the order indicates that the parties were obligated by the court to serve clean and redline versions of their expert reports without some "alternative [damages] theories foreclosed by this ruling" (the alternative theories are not stated in the written order). It's possible that Samsung has made headway with respect to the amount of damages Apple will be allowed to claim, but its long-shot attempt to have the entire schedule vacated did not work.

  • A week after the motion discussed in the previous bullet point, Samsung requested a new trial on liability (infringement, validity, etc.) concerning the '381 rubber-banding patent, arguing that Apple had narrowed the scope of this patent through its argument during reexamination, which resulted in confirmation of three claims including the one at issue in this California lawsuit. Back in March Samsung wanted a whole new trial on the merits (as opposed to a limited retrial to determine only damages with respect to 13 products), and in July it was hoping that it could get a new liability trial at least on the rubber-banding patent. In the alternative, Samsung asked for a partial final judgment on the '381 patent and the opportunity to appeal the ruling to the Federal Circuit, obviously seeking a stay of the California proceedings for the duration of the appeal.

    Apple naturally opposed this motion as well, and at the end of my post on Apple's opposition brief I said that it would be "hard for Samsung to overcome Apple's various lines of defense", which has now turned out to be true.

The ruling does not make any reference to an issue Samsung wanted to raise at the hearing (but over which it has not filed a motion) relating to the '915 pinch-to-zoom API patent. Reexamination of that one is still ongoing (a "final" rejection by the patent office wasn't truly final), and Samsung argues that Apple has also narrowed the scope of that patent through representations made to the (re-)examiner. I don't know whether Samsung still plans to bring a motion over this one. But it appears to me that Judge Koh agrees with Apple that "[t]his case is within striking distance of a true final judgment", which will come down after the retrial.

Also yesterday, Samsung notified the court of the USPTO's decision to reexamine two iPhone design patents, including one the first jury in this case found Samsung to infringe. Samsung points the court to the USPTO's finding that a "substantial new question of patentability" was raised, but as I explained in a couple of recent posts, SNQ is a very low hurdle and doesn't mean much. No tentative rejection was issued.

At the end, Judge Koh's case management order sets three key dates for the retrial. The jury trial will begin on November 12, 2013. The pretrial conference will be held on October 17, 2013. And a week earlier the court will hear a potentially-upcoming Samsung motion challenging the qualifications of Apple's new expert as well as any motions to strike the parties may bring (no more than one per party). Theoretically the October 10 hearing on such motions could still derail the retrial, but I doubt it. It also appears that for practical/procedural reasons Samsung won't be able to (again)request a stay based on developments in ongoing reexaminations.

Judge Koh said the court and the parties would have a "Groundhog Day" in November, and that's where things are heading now.

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