While Apple is usually the net payer when it comes to patents (most recently vis-à-vis Ericsson), it has received $548 million from Samsung this month, though a reimbursement may be demanded later. Samsung might base a future reimbursement claim on its design patent-related appeal to the Supreme Court (if that one succeeds, which would not be a huge surprise) and/or on the fact that the United States Patent and Trademark Office has held the '915 pinch-to-zoom API-related patent invalid (a decision Apple is appealing to the Federal Circuit) and/or the increasingly likely invalidation of the D'677 iPhone design patent.
But not enough: yesterday, Apple brought a motion for supplemental damages and prejudgment interest. Most of the documents are hidden from the general public for now, but a declaration by Apple's damages expert Julie Davis was published (this post continues below the document):
15-12-23 Davis Declaration ISO Apple Motion by Florian Mueller
According to the Davis declaration, Apple wants supplemental damages (damages for infringements after the cutoff date of the jury trial) amounting to $178.7 million and prejudgment interest totalin $1.2 million, i.e., $180 million in total. Samsung is not going to fork that money over without a fight. The amount seems high to me given that the products at issue in this case (the first litigation between the two companies) were already somewhat outdated by the time of the 2012 trial.
While I strongly disagree with Apple's enforcement of patents held invalid (and also with its position that an unapportioned disgorgement of profits is the appropriate remedy for design patent infringement), yesterday's motion could not be accurately described as adding insult to injury: it's merely a logical step of the overall enforcement efforts Apple has started. It does make the underlying issues economically more significant, but it's just more of the same in terms of Apple's attitude. If Apple had decided not to bring this motion (for which it had sought permission), it would have had to backtrack. Again, I think it should have backtracked because no one in this industry, including Apple, would want invalid patents to be enforceable in any way, but a withdrawal is something unrealistic to hope or ask for at this stage.
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