This week, public versions of two key documents filed by Samsung last Friday in connection with two Apple cases became available:
Samsung's opening brief in its appeal of the earlier-filed California case (in which Apple was awarded total damages of $929 million after a 2012 trial and a 2013 limited damages retrial) to the Federal Circuit, and
Samsung's motion for judgment as a matter of law (JMOL) in the second California case, in which a jury awarded, at the beginning of this month of May 2014, $119 million (far short of the $2.2 billion Apple had sought).
The opening appellate brief in the first case has 83 pages, and the JMOL motion in the second case has 46 pages. Those documents are surely voluminous, but that's the nature of the beast: there's a number of issues (both in a nonjudgmental and a judgmental sense) in both cases.
In case you're interested in all or some of the detail, I will now show you both documents before I share my high-level observations on Samsung's strategies for reversal/adjustment.
Here's the opening appellate brief:
14-05-23 Samsung Opening Brief in Appeal of First Apple Case by Florian Mueller
And this is the JMOL motion:
14-05-28 Samsung Motion for JMOL in Second Apple Case by Florian Mueller
As I noted on Saturday in a blog post on Apple's request for a retrial in the second California case, the post-trial roles of these parties differ greatly between the two cases. Apple's approach to the original (pre-adjustment) 2012 billion-dollar jury verdict was "Please don't touch it", apart from limited adjustments in Apple's favor that would not require a retrial of previously-tried issues. Samsung, however, has been challenging that 2012 verdict for almost two years now, from all angles, and its opening brief on appeal raises a far greater number of issues than I've seen in any other smartphone IP case apart from the "Posner case".
In the second case, Apple is now so unhappy with the outcome (a mixed ruling since Apple was also found to infringe a Samsung patent, and in terms of damages, only 5-6% of what Apple sought) that it wants a complete retrial on damages (and on willfulness, without which it wouldn't even be able to seek damages enhancements for more than a tiny portion of the award). Samsung is still trying to bring even the $119 million figure down, but it has no appetite at all for another jury trial, presumably knowing that it would be rather difficult to obtain a more favorable outcome in front of a Silicon Valley jury. The next jury, if there was one (I think the dispute will be settled before any retrial even could happen), might be just as biased against Samsung as the 2012 jury was and U.S. juries frequently are, based on statistics that a now-Federal Circuit judge published (Xenophobia in American Courts).
Samsung has so many different attack vectors against those two California decisions that it's hard to see the forest amid all the trees. In the first case, if the appeals court agrees with Samsung on any liability or jury instructions issue, there will have to be another California trial (the third one just in the first case alone). Depending on what issue works out for Samsung on appeal, there could be a pretty complete damages retrial, possibly along with a new liability trial on design patent infringement. Apple still hasn't collected one cent of the 2012 award, and if another retrial was needed, it wouldn't get any for a few more years.
Samsung raises liability and damages issues in both cases, but the emphasis on bringing down the damages award is particularly strong and clear in the first case. When I read Samsung's opening appellate brief, I got the impression that Samsung doesn't take Apple's asserted patents seriously in a strategic sense. It's really just about money, and the damages award has also been used by Apple for PR purposes, so it's not just about money changing hands but also about the perception game. But there is no sign of Samsung being worried about Apple's software patents-in-suit in the first case:
- Samsung is not challenging liability for the '381 rubberbanding patent -- the only feature end users would define and describe as a feature that Apple has so far been able to sue out of Android devices -- neither with respect to validity (which would be hard after the USPTO upheld the asserted claim last summer, giving that claim the benefit of a strongly enhanced presumption of validity over the prior art the patent office evaluated in its reexamination) nor infringement. I don't think there would have been a good non-infringement argument anyway, but Samsung has worked around this patent (by throwing out the feature) and doesn't appear to be so desperate to bring the feature back that it would try a long shot to overturn the liability finding.
In fact, Samsung is not challenging any of Apple's three software patents-in-suit in the first case with respect to past infringement.
But Samsung has strong invalidity arguments with respect to the '915 pinch-to-zoom API patent and the '163 tap-to-zoom-and-navigate patent (in that order):
The USPTO has rejected all claims of the '915 patent as a result of an anonymous reexamination request; Apple has appealed that decision to the Patent Trial and Appeals Board (PTAB) and will have to file its opening appellate brief in July. This battle isn't over yet, but it's an uphill battle for Apple at this stage.
The '163 patent is so extremely narrow (it doesn't cover all tap-to-zoom functionality but is infringed only if after the original tap-to-zoom action there is a second operation that centers a different part of, for example, a website) that Samsung would probably have ignored it on appeal if it didn't have a pretty straightforward invalidity argument that will be very easy for the Federal Circuit to adjudicate: the claim term "substantially centered" is allegedly indefinite.
Since the '163 patent is strategically irrelevant, I never cared to study it in all detail. Without even looking at this issue in greater detail, I can certainly say that a term like "substantially" is quite problematic in a patent claim, especially in the U.S. where indefiniteness is frequently a basis for challenging claims. The conventional approach to patent claim drafting is that you want to be binary: these are the elements, and every one of them is there. You wouldn't even want to say "or" in a U.S. patent claim (outside the U.S. that's different) but instead refer to "at least one of [a list of options]". Quantitative attributes may make sense in certain sciences (for example, specifying a temperature range for a manufacturing process), but then you want to be numerical, not vague. If you have a binary claim and then argue in an infringement case that something is "substantially" the case, that's a different thing. But the claim itself should be binary.
Even if the '915 patent surprisingly survived, an invalidity finding (for indefiniteness) of the '163 patent would require a pretty complete damages retrial.
Due its focus on bringing down the damages amount, Samsung's appellate strategy in the first case is design patent-focused. Most of the damages related to design patents, with respect to whch Apple sought a disgorgement of infringer's profits. I'll take a closer look at the design patent-related arguments during later stages of the process (at least I want to see Apple's response). There are also some trade dress issues in this case and I can't promise I'll ever go into detail on them. There's just one thing relating to designs that I wish to highlight because it looks like a very key issue on appeal. Judge Koh didn't allow Samsung to present evidence of what it calls "pre-iPhone independent development" of similar designs, in particular, the "F700" design. According to Samsung's brief, "Apple itself saw the F700 as so similar to the iPhone that it accused the F700 of being a copy of the iPhone before learning the actual pre-iPhone chronology of the F700's development". This really would have been, and could be on remand, a silver bullet for Samsung in its efforts to counter Apple's "copying" allegations.
JMOL motion (in the second case)
Now on to the JMOL motion in the second case. At this procedural stage it's harder to see a party's priorities: requests for the judge to overrule the jury are usually much more comprehensive and less focused than appellate briefs. Still, it's easy to see here that the '647 "quick links" patent is a key issue. It's the first one Samsung raises in its JMOL motion; it devotes more pages to this one than to any other issue; and this will presumably also be the number one topic on appeal. In my post on Apple's injunction request I discussed the complex procedural situation here following the Apple-Google second-class settlement. Samsung is challenging the '647 patent mostly on the infringement but also on the validity side. The recent construction of the patent by the Federal Circuit creates opportunities for non-infringement and invalidity arguments at the same time.
Samsung argues that it was Apple's choice to base its '647-related arguments on a broader claim construction than the one the Federal Circuit ultimately affirmed (Samsung says "Apple 'shot for the moon'"), and "Apple's risk failed" when the appeals court handed down its opinion in what I always just call the "Posner case".
Samsung's JMOL motion refers to the history of this patent -- a fact I also mentioned a couple of times before:
"Apple filed this patent in 1996 when it was selling desktop Macintosh computers, well before any work on a mobile phone and over a decade before Apple would release the iPhone. Apple's attempts to force this old client-server patent onto mobile phone applications by avoiding the properly limiting claim construction has come to naught: on the last day of trial, in a case between Apple and Motorola involving the same patent, the Federal Circuit confirmed the constructions that Samsung believed correct--[the 'Posner construction']."
The heart of the '647 claim construction issue is indeed that this is not an iPhone patent but a 1990s Macintosh patent. If it's interpreted the way it should be in light of its history, then Apple can't get much mileage (if any) out of it against Android device makers.
Samsung is still trying to get all patents-in-suit invalidated, which is its only defense (after a summary judgment decision by Judge Koh) against the '172 "autocomplete" patent (which the USPTO decided to reexamine). I believe Samsung can shoot down at least a couple of Apple's patents-in-suit in the second case. Some of it will take time including appeals and reexaminations, but Judge Koh also declared a Samsung patent invalid after the first trial, and this time around she should think very hard about invalidating at least a couple of Apple patents since there are reasonably strong invalidity arguments that the jury apparently didn't consider (U.S. juries always overrate the validity of patents, especially when they have to make their decisions based on propaganda videos and an extremely selective presentation of information that is tantamount to misinformation).
If Judge Koh didn't invalidate any of Apple's patents on JMOL, I would be concerned. While the slide-to-unlock patent is strategically irrelevant, ten European judges (some of which have engineering degrees, unlike U.S. judges) have found the European member of that patent family invalid, and the same prior art (including the Neononde N1m) is also mentioned in Samsung's JMOL motion. Judge Koh would be the first judge in the world to believe that Apple deserved a patent on a slide-to-unlock image when the basic concept of slide-to-unlock already existed long before the iPhone.
In its JMOL motion, Samsung is also trying to prevail on the other one of its own patents-in-suit (the '239 patent), and in the event Apple's liability win is affirmed by Judge Koh, Samsung is seeking a reduction of the damages award by $32 million.
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