This morning I updated my Q&A on the ongoing Apple v. Samsung limited damages retrial in the Northern District of California to reflect the long-awaited information on what damages figure Judge Lucy Koh allowed Apple to present to the jury. The answer is $380 million, slightly below the $410 million portion of last year's jury verdict that was vacated and is now being redetermined.
Shortly before the trial began, Judge Koh also barred Apple from presenting additional damages theories to the jury. Apple had argued that any restrictions would apply only to its damages expert Julie Davis's testimony, not to whatever Apple's lawyers may say. Samsung had previously succeeded on some pretrial motions. It's clear now that Samsung's efforts to limit Apple's damages claim have been very successful.
Theoretically, the new jury could still award a greater damages figure than last year's jury did with respect to the same 13 products. But it's not likely that the jury will go beyond Apple's claim.
The jury is also very unlikely to award Apple less than the $52 million even Samsung concedes it owes Apple. Samsung's lead counsel, Quinn Emanuel's Bill Price, reportedly also praised Steve Jobs and indicated to the jury that Samsung is kind of sorry.
There's also some of the usual trial rhetoric, with Samsung arguing that "you can't patent sexy" and Apple telling jurors the story of how the developers of the original iPhone knew they were "betting the company" on that project. Still, under the unique circumstances of this limited damages retrial this is not the kind of all-out, high-profile war of words and numbers that one would usually expect when the two largest mobile device makers in the world clash in a courtroom.
From the angle of litigation tactics, Samsung's strategy of pretending contrition -- also seen to a lesser degree in the Patentgate context -- makes sense. It might persuade the jury to be lenient. But Samsung's tactical and conditional confessions of infringing Apple's rights won't stay in the courtroom: they have been reported widely and could be quoted out of context.
While the retrial is technically only about a subset of the accused products, another win by Apple (and I would consider anything amounting to about $200 million or higher a win for Apple) would also make it harder for Samsung to argue on appeal that the first jury's award was unreasonable. You can have one unreasonable jury (such as the Oracle v. Google jury last year, except for its foreman, who may have been smarter than the rest of the jury combined), but it's not easy to argue that two juries in a row were unreasonable. It's possible, but the likelihood is much lower than in the case of only one jury.
Practically, this retrial is now about whether Apple will get a total damages award (affirmed plus redetermined amounts) of slightly more or somewhat less than $1 billion. If the jury agrees with Apple 100%, the award stays above the billion-dollar mark. But if the total award was, for example, $900 million, it would still be roughly a billion dollars. Even if the retrial jury agreed with Samsung, the total award would be close to $700 million.
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