The mixed verdict Apple got at last year's trial in the second California case against Samsung was a disappointment especially with respect to damages: while $119 million would make a lot of companies extremely happy, Apple wanted roughly 20 times as much. It couldn't hide its dissatisfaction because it shortly thereafter requested a retrial. It was, practically speaking and especially when considering the circusmtances, a win for Samsung's lead counsel in that case, John Quinn, who nevertheless told the media that what Apple obtained was "unsupported by evidence". Mr. Quinn said, already back then, that Samsung's objective in the post-trial proceedings and, if necessary, on appeal would be to reduce Apple's damages award to zero.
Judge Koh denied, with minor exceptions, both parties' post-trial motions. Apple didn't get more money or a new trial, but its award wasn't reduced either. Roughly ten months later (the parties had to await a ruling on Apple's ongoing-royalties motion before they could bring an appeal on the merits), Samsung has now filed its opening brief with the Federal Circuit, and it's definitely pursuing the agenda its lead counsel outlined in the spring of 2014. Samsung is indeed challenging each and every part that worked out in Apple's favor last year (this post continues below the document):
15-03-06 Samsung Opening Brief (Fed. Cir.) by Florian Mueller
Samsung still doesn't want a new damages trial on Apple's patents. For a jury that reached a decision on Apple's home turf, despite statistics (by someone who is now a Federal Circuit judge) that U.S. juries tend to favor U.S. companies over foreign rivals to a far greater extent than U.S. judges do, this was a really good outcome for Samsung and a retrial would come with a risk of a greater damages award that seems considerably bigger than the opportunity for Samsung to reduce the amount on retrial. Apple will presumably keep pushing for a retrial, as it already tried in district court.
However, if a new trial was ordered, Samsung would want a key damages-related issue concerning the '647 "quick links" patent to be handled differently on retrial. And regardless of whether a new trial will or will not be held on Apple's offensive case, Samsung would like a new trial on one of its own patents (last year, it prevailed on one of two offensive patents).
Samsung is challenging all of Apple's patent infringement claims on the merits. The emphasis is clearly on the '647 "quick links" patent. At the end of the week before the one in which the trial was scheduled to start, the Federal Circuit affirmed Judge Posner's claim construction of the '647 patent in an Apple v. Motorola case. I still believe Judge Koh could have thrown out the '647 patent right before the trial, but instead she just allowed both parties to present more evidence, denied their related motions for judgment as a matter of law, and deferred to the jury. Now Samsung asks the Federal Circuit to hold that under its claim construction Samsung's accused products don't infringe because they lack a separate "analyzer server" (a key claim limitation Judge Posner had addressed) and because of differences between the claim construction and the accused technologies in terms of how actions are linked to data structures. If the appeals court agrees with Samsung on only one of the two claim limitations, there's no infringement, and the bulk of Apple's damages award is lost.
While it appears that Apple probably won't obtain an injunction, the '647 patent would (should Samsung's appeal on the merits not succeed) presumably give rise to a future dispute over ongoing (postjudgment) royalties, given that the parties disagree on the scope of that patent. It's easy to imagine a situation in which Samsung would argue that it has worked around the patent and Apple would say that it has not.
While the other patents are a lower priority, Samsung nevertheless tries to get the other four Apple patents-in-suit (slide-to-unlock, autocomplete, unified search, synchronization) invalidated, and it argues that it never infringed the autocomplete patent with devices that have a keyboard on a touchscreen as opposed to a physical keyboard separate from a screen.
Samsung still believes the district court didn't even have jurisdiction to award Apple postjudgment royalties since Apple's appeal of the denial of an injunction was pending at the time (that appeal was recently heard and a ruling should come down in a matter of months now).
With respect to the damages amount, Samsung finds that it was unfairly disadvantaged by, for example, not being allowed to use the terms of Apple's license agreement with HTC and Apple's '647 damages claim in the aforementioned Motorola case (on a per-unit basis, only about 5% of what it demanded from Samsung) as real-world evidence of the actual value of Apple's patents-in-suit. There is also a disagreement between Samsung and Apple concerning a "blackout" period (Samsung argues it makes no sense to assume in a hypothetical scenario for damages calculation purposes that Samsung would have released an infringing product a year after receiving notice of an infringement allegation only to immediately develop a designaround and re-release it a few months later -- I would agree that "hypothetical" behavior is different from "totally implausible" behavior). These evidentiary issues would only play a role if Apple's request for a new trial was granted. Otherwise Samsung is fine with focusing just on the merits at this stage.
While consistent with what its lead counsel said after last year's trial, Samsung's "carpet-bombing" of last year's ruling is different from what I see in a majority of the multi-patent cases I watch. Most appellants actually accept some unfavorable parts of the outcome in district court in order to focus on only one or two, or maybe three or four, key issues in the appeals court. That is especially the case when the commercial significance of one or two issues very clearly outweighs that of any smaller losses in district court. But there are scenarios in which companies will attack a ruling in its entirety:
if they think that their arguments are pretty strong on all of these issues (so they don't see why they shouldn't raise them all at the same time),
if they feel they can state their argument concisely (in writing and at the hearing) so they don't need to drop smaller issues in order to have more room and time for their biggest priorities,
if they believe it's the best approach with a view to ongoing settlement talks (because the other party then has to negotiate on the basis that in a worst-case scenario it might lose everything on appeal), or
if they believe this makes things harder for the other party when it responds (Apple will now have to counter a number of Samsung arguments but would actually like to focus on its own priority, which is to get a new damages determination from another jury; there's no doubt that Apple's lawyers will do a great job countering Samsung's points, but when I read Samsung's brief, I felt that effective counterarguments may need significantly more space).
I have no idea what Samsung's agenda is, and I don't mean to second-guess them and their lawyers. Any or all of the four potential reasons stated above would be plausible here. I can easily see why Apple would not be overly enthusiastic about pursuing this appeal, which is an uphill battle because last year's jury trial didn't work out too well even though it took place in Apple's backyard. In order to get a more significant win out of this second California case, Apple would need the appeals court to order a new trial, but not on a basis on which it agrees with Samsung on any of its key points (just a finding of non-infringement of the '647 patent would make the retrial much less interesting; additionally or alternatively, if Samsung was allowed to present some of its real-world evidence, Apple would have a hard time justifying its outsized damages claim). Even if that happened (and that combination is certainly not easy for Apple to get), that retrial would take place in 2016 at the earliest. "At the earliest" because there could be significant delay (for example, I could see Samsung appeal certain issues, possibly relating to the '647 claim construction but also the exclusion of real-world damages evidence, to the Supreme Court if necessary). Then there could be an appeal after the retrial. This would take forever and lead nowhere in the end. It should simply come to a negotiated end, and the best timing for Apple would be before its appeal of the denied injunction is adjudicated (because I believe the decision would more likely up the ante in future cases involving Apple's smartphone patents than it is to indicate how Apple could do better with future attempts).
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