Apple has asked Judge Lucy Koh to impose a significant sanction against Samsung as punishment for what Apple alleges was a deliberate effort to pollute the jury pool. Apple told the court that Samsung is using “litigation misconduct” as a strategy, and that declaring Apple’s patents valid and infringed would be a suitable remedy, even though it is a significant sanction.
Apple’s complaint is based in part on Samsung’s decision to release evidence to the public, evidence that Judge Koh had excluded from the trial. Apple characterized the move as an attempt to earn a mistrial and merely the latest in a pattern of discovery abuses by the South Korean electronics giant.
Samsung argued in court on Wednesday that it didn’t do anything wrong, and that releasing the evidence to the public was not only legal and appropriate, it was in keeping with Judge Koh’s commitment that this case would be open in keeping with the public’s great interest in the outcome.
Judge Koh was livid at Samsung for its actions, according to InformationWeek, especially after having to literally order Samsung attorney John Quinn to sit down after he kept asking her to allow the evidence after the issue was already decided.
The evidence that Samsung believes is so important involves a designer who was tasked by Sir Jonathan Ive—currently Apple’s Senior VP of Industrial Design—to show what an iPhone designed by Sony might look like. Samsung believes this is proof that Apple actually copied Sony, which would then absolve Samsung of any charges that it copied Apple for some of its own Android smartphones.
To emphasize, that is what Samsung is risking Judge Koh’s ire by releasing it to the public just before the jury was to get a two day break. Samsung attorney John Quinn has said that this is central to Samsung’s case.
According to AllThingsD, Apple will not request a mistrial, because to do so would reward Samsung for its misbehavior. Instead, Apple submitted a brief with the court that effectively requested the judge award victory to Apple for its patent infringement claims.
In its brief, Apple’s attorneys wrote:
Samsung already has been sanctioned four times in this case for discovery abuses (see image at right). Most recently, Samsung was sanctioned for destroying evidence. Litigation misconduct is apparently a part of Samsung’s litigation strategy — and limited sanctions have not deterred Samsung from such misconduct.
Now, with so much at stake, Samsung has taken the calculated risk that any sanctions arising from its attempt to influence the jury with its excluded arguments are a price it is willing to pay.
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The proper remedy for Samsung’s misconduct is judgment that Apple’s asserted phone design patents are valid and infringed. Through its extraordinary actions yesterday, Samsung sought to sway the jury on the design patent issues, and the proper remedy is to enter judgment against Samsung on those same patents.
It would be, to be sure, a significant sanction. But serious misconduct can only be cured through a serious sanction—and here, Samsung’s continuing and escalating misconduct merits a severe penalty that will establish that Samsung is not above the law.
It seems unlikely that Judge Koh would grant the request, but Apple argued that even if she didn’t, she should at least instruct the jury that Samsung has engaged in “serious misconduct,” information that could help sway the jury that Samsung is guilty of Apple’s charges of patent infringement.
If Judge Koh did elect to grant Apple’s request, it wouldn’t effect Samsung’s counter claims that Apple is violating the company’s standards-essential patents (SEPs). Apple has said that Samsung was not honoring its commitment to license it patents on a fair, reasonable, and non-discriminatory (FRAND) basis by asking Apple to pay far higher licensing fees than any other licensee. A likely outcome of this trial is that some kind of compromise licensing fee be imposed by the court for Samsung’s SEPs.
Image courtesy of Shutterstock.