Apple's original U.S. lawsuit against Samsung is still scheduled to go trial this summer after the parties dropped a number of claims, which makes the presiding judge hopeful that the case will soon have a manageable scope. On Thursday (May 17), Apple and Samsung filed a variety of motions that aim to further streamline their California litigation at each other's expense. Those motions ask the court to dismiss certain claims on summary judgment, to strike certain theories, and to exclude the testimony of expert witnesses hired by the parties.
All of this is the normal course of business. The judge may very well agree that certain claims or (parts of) expert opinions should be thrown out ahead of trial, while other claims and positions may not be particularly strong but still strong enough that the opposing party has to make its counterarguments at trial.
One of Samsung's motions is reminiscent of the company's recent advertising campaigns that made fun of Apple fandom. Here's the introductory paragraph of that motion:
"Apple's damages expert, Terry L. Musika, writes in his report that 'Apple has built a considerable and at times a cult-like following to all things Apple.' That cult-like following apparently includes several experts who are appearing on Apple's behalf in this case, and may explain why they have cast aside established scientific methods and governing legal principles in favor of slavish adoration of their client and platitudes about its alleged magical and revolutionary products, issues that are of no relevance to the claims and defenses at issue."
That introductory paragraph attacks several Apple experts at the same time. The one with whom Samsung appears to have the most fundamental problem is Henry Urbach, who, according to Samsung's brief, "unquestionably is a loyal devotee of Apple, its designers, its products, and its retail stores" and explains Apple's cultural significance "[i]n flowery terms". Samsung notes that "[b]efore being retained by Apple in this matter, Mr. Urbach wrote an essay on the design of Apple's retail stores, entitled Gardens of Earthly Delights, describing them as “[q]uasi-religious in almost every respect, . . . chapels for the Information Age.'" and referring to the late Apple founder Steve Jobs as "St. Eve". Samsung also objects to Urbach's qualifications because he "has admitted he has no experience in product design, or marketing, and therefore any opinions he could offer would be beyond his area of expertise".
Samsung also seeks to exclude the testimony of two other Apple experts, and the opinions of five more Apple experts.
Apple attacks the positions and, in a couple of cases, qualifications of eight experts hired by Samsung for this litigation in connection with infringement, validity and damages issues. Apple furthermore moves to strike certain theories that it either considers inconsistent with Samsung's original invalidity and infringement contentions or that were allegedly not disclosed during discovery.
As far as summary judgment is concerned, Apple's motion is much more focused than Samsung's. Apple argues that it doesn't infringe Samsung's '867 patent as a matter of law, and that Samsung's '893 and '460 patents are invalid for indefiniteness. Samsung has presented a whole laundry list of items it would like to see adjudicated at the summary judgment stage:
Apple's trade dresses allegedly invalid because they are allegedly functional. Furthermore, Samsung says Apple's trade dress dilution claim should be tossed because it allegedly cannot prove that those trade dresses are famous. But if the iPhone and iPad aren't famous, which high-tech products are?
Samsung argues all six asserted design patents are invalid (five of them for obviousness over prior art, one of them due to the "on-sale bar" (the iPhone was on sale before a related design patent was applied for).
Samsung also wants all four Apple utility (technical invention) patents thrown out, arguing that the asserted claims of three of them are invalid and the asserted claim of another patent (the '915 patent) is not infringed.
Finally, Samsung wants Apple's FRAND-related antitrust claims dismissed on summary judgment because Apple allegedly cannot prove any damages (since no Apple products have been excluded from the market due to Samsung's standard-essential patents so far.
The parties will soon file their opposition briefs.
With the companies' CEOs and chief lawyers scheduled to meet tomorrow and the day after for court-moderated settlement talks that are highly unlikely to yield a result, there will be more attention to this Apple v. Samsung case than most of the time. Also, there has been a flurry of filings in recent days including a new preliminary injunction motion targeting the Galaxy Tab 10.1 and a couple of Samsung initiatives aiming to mitigate the impact of sanctions the court ordered because of Samsung's non-compliance with a discovery order concerning the source code of various workarounds.
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