We're one week away from the limited damages retrial in the first Apple v. Samsung litigation in the Northern District of California. Yesterday Judge Lucy Koh, the federal judge presiding over this case (and another lawsuit between these parties in the same district), entered orders involving the verdict form that the jury will have to fill out and the instructions the jury will receive before the parties present their arguments and evidence.
While the judge agreed with Samsung on certain questions (such as a general instruction what a patent is), she adopted Apple's clear and simple proposals for a summary of the case and for the retrial verdict form. Samsung has been unsuccessful so far with its attempts to muddy the water for the new jury.
This is going to be the verdict form (this post continues below the document):
That's the structure Apple proposed: a total amount, and a breakdown per product. Samsung wanted a matrix specifying different types of damages (reasonable royalty, Apple's lost profits, Samsung's profits) for each product. It also wanted the court to accordingly instruct the jury to determine not only an amount but also the "type" of damages. That proposal was rejected, too. The jury will learn about different types of patent damages and the parties will present different theories. But the verdict form won't reveal the methodology behind a given per-product award.
Samsung also couldn't inject certain concepts into the preliminary (pre-argument, pre-evidence) jury instructions. For example, it wanted the court to tell the jury that Samsung's infringement was "not willful". But the jury won't decide on the question of willfulness enhancements (treble damages), so this won't be mentioned at all.
Another psychological item on which Apple prevailed is what the court will tell the second jury about the first jury's infringement findings. Samsung merely wanted the new jury to "assume" that there was an infringement. Apple argued that the finding from the first trial was now "law of the case". Judge Koh will tell the new jury that the "[d]uring a prior proceeding, a jury found the '381, '915, '163, D'677, and D'305 patents valid and that each of these patents is infringed by a product marked below with an x".
Samsung also failed to persuade the court to include the following sentence in the instructions:
"While Apple is not required to prove its damages with mathematical precision, it must prove them with reasonable certainty."
Instead, the jury will simply learn that the standard is preponderance of the evidence (and that this means "more likely true than not").
The preliminary jury instructions are "tentative". The parties can object. Sometimes courts make modifications to jury instructions even at this stage. Most of the time, however, parties object only to preserve their record for an appeal.
In closing I'd like to mention that Samsung made a couple more filings in recent weeks relating to the alleged narrowing of the scope of the '915 (pinch-to-zoom API) patent. It indicated in September that it wanted to derail the damages retrial over this issue. It formally raised a similar issue with respect to the rubber-banding patent, but didn't succeed. With respect to the '915 patent it made some filings -- but never brought a formal motion. At this point it appears rather unlikely that next week's retrial could still be derailed. Anything can happen, and sometimes trials get canceled on the morning they're scheduled to begin. In this case, it looks like Judge Koh just wants to reach the point soon at which she can enter a final judgment, which can then be appealed.
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