Late on Wednesday, Judge Lucy Koh published her tentative verdict form for the ongoing Apple v. Samsung II jury trial, in which the final jury instructions will be given on Monday. The parties have been asked to comment by noon California time today. While it's possible that either party will still defend its original proposal (or key parts thereof), I think Judge Koh has struck, with her 12-page form, a Solomonic balance between Apple's slightly too simplistic nine pages and Samsung's way too complicated 34-page proposal.
Basically, just like in the previous trial, Samsung submitted an excruciatingly granular form that would make things very complicated for the jury and entail a significant risk of a mistrial, while Apple wants this complex patent case to be reduced to a much simpler set of questions the jury needs to answer, which would simplify things now but require a retrial of Apple's claims if any single liability finding in Apple's favor was reversed by judgment as a matter of law (JMOL), be it by Judge Koh in the post-trial proceedings or by the appeals court. In the first Apple v. Samsung case, a limited damages retrial was necessary because Judge Koh made the mistake last time to adopt Apple's proposal (over Samsung's objections) to have the jury determine damages only on a per-product, but not on a per-product-per-patent basis. And I see a fairly high likelihood of another retrial being necessary in that case after Samsung's appeal, especially with the '915 pinch-to-zoom API patent being of very doubtful validity.
Judge Koh has decided not to make the same mistake twice (unless Apple persuades her to do so, which it presumably can't). While her proposal is in length and structure much closer to Apple's submission than Samsung's, the most important respect in which she has decided to go with Samsung's suggestion is that the damages determination will now be on a per-product-per-patent basis. Such a two-dimensional matrix means that damages retrials can in most cases be avoided and in other cases be limited to narrow questions.
I never liked Samsung's ultragranular proposed verdict forms and never will. But I also think Apple was led too much by a desire to maximize the chances of a quick and simple verdict (presumably knowing that the more the jury needs to think about the details of the case, the less likely it is to do what the jury in the first trial did, which decided that case based on a pretty binary perspective on who was right and who was wrong), regardless of how useful that verdict would prove after JMOL and after the customary appeal. The tactic didn't work out for Apple last time because it didn't result in a settlement on Apple's proposed terms. I don't think it would have worked for Apple this time. There must be a reasonable balance between keeping it simple and making it useful even in a scenario in which liability findings are overturned.
Here's the tentative verdict form:
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