Friday, September 11, 2015

Apple and Samsung will try to avoid fourth California patent trial: court-moderated settlement talks

A little over a year ago, Apple and Samsung withdrew their pending claims against each other everywhere but in the United States. Now there is more hope than ever that even the U.S. part of their dispute may come to an amicable end. In a joint case management statement filed in the Northern District of California late on Friday by local time, both parties have responded favorably to Judge Koh's recent inquiry about their willingness to engage in yet another mediation effort.

Here's the document, from which I'll then quote the relevant statements on alternative dispute resolution:

15-09-11 Apple-Samsung Joint Case Management Statement by Florian Mueller

"Apple's Statement: The remaining issues to be tried to a jury are limited to the amount of damages that Samsung owes for its sales of five infringing products. Thus, as an alternative to a fourth trial, Apple would be willing to participate in binding, final, and non-appealable arbitration to calculate the final amounts owed to Apple for those five products, provided that such arbitration take place on a schedule that would conclude no later than December 31, 2015 and the Court's prior 'Groundhog Rules' apply to the arbitration. To the extent supplemental damages are not resolved by motion, Apple would be prepared to include those issues in the arbitration. Multiple prior efforts at private mediation have been unsuccessful. However in advance of and in addition to arbitration, Apple would also be willing to mediate again with Magistrate Judge Spero as ordered earlier in the case. If Samsung is unwilling to agree to this procedure, Apple requests that the Court schedule a trial for March pursuant to Apple's proposal above.

Samsung's Statement: Samsung is willing to engage in a mediation with the private mediator previously used by the parties or another mutually agreed upon private mediator. While Samsung suggests a mediation before a private mediator to avoid burdening the Court, Samsung is also willing to mediate with Magistrate Judge Spero. Samsung proposes that the mediation be completed by November 15, 2015."

The passages quoted above show different approaches. Apple talks about arbitration; Samsung doesn't. Samsung would have a preference for private mediation; Apple only mentions court-moderated mediation. But court-moderated mediation--in front of U.S. Magistrate Judge Joseph C. Spero, as in 2012--is the common ground between those two statements, and in that case, the court will set the rules, so Apple can't impose any conditio sine qua non of the kind it proposes for arbitration.

While arbitration would also have been just limited to a certain damages question, mediation can address anything that remains to be resolved between the parties. If mediation succeeds entirely, the whole dispute will go away. If it succeeds in part, it will at least be narrowed.

More than anything else, both parties need a face-saving exit strategy now. It would really be nice to avoid a situation in which Apple would behave like a sore loser (not a loser in legalistic terms, but in practical terms, given that its "thermonuclear war" on Android went nowhere) and kept trying to collect money over invalid patents, which could also set a terrible precedent (well, Apple's lawyers obviously argue this would just affirm the law as it stands) with a view to future cases in which patent trolls will do the same against operating companies including, but not limited to, Apple. It just wouldn't look good if Apple collected money on an ethically questionable basis, under circumstances that make it so needless and pointless given that Samsung had posted a billion-dollar bond anyway and Apple would get paid later with interest if it ultimately prevailed. Maybe this common ground in terms of court-moderated mediation will help avoid all of this. I'd be very, very happy for both parties if it worked out.

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