Apple and Samsung are scheduled to square off in court this November to redetermine part of the damages the iPhone and iPad maker is owed in its big patent infringement win last August, but Samsung is crying foul and claiming Apple is using the new trial to push the damages even higher. A jury awarded Apple over US$1 billion in damages, but part of that was thrown out because the values assigned to some of Samsung's infringing devices was improperly calculated, and now Samsung is fighting to stall the new trial.
Samsung isn't excited about this fall's patent infringement damages retrial
13 devices will be included in the November damages retrial and Samsung is hoping to win a stay in the case. That doesn't, however, seem likely since the electronics maker hasn't been successful so far in its efforts to get key Apple patents invalidated. The company is also saying that Apple is acting outside of Judge Lucy Koh's orders by increasing the damages it is asking for.
"Samsung argues that Apple has violated the court's orders concerning its damages claim at the retrial by presenting a 'vastly greater' damages claim, and says a new case management conference must be held now," said Florian Mueller of FOSS Patents. "Apple told Samsung in no uncertain terms that it was going to oppose such a motion."
Samsung is also arguing that Julie Davis, the CPA Apple brought on board to replace Terry Musika who passed away after testifying during last year's trial, submitted a report that improperly inflates Apple's damages claim. The company's argument states,
By way of example, and without limitation, Ms. Davis's new report: (a) improperly changes the design around periods; (b) includes new per-product damages calculations, which Ms. Davis calls 'incremental profits'; (c) includes 42 alternative damages calculations hinging on different assumptions; and (d) includes extensive commentary on new evidence and trial testimony.
Mrs. Davis was required to file a new report with the court since she can't testify based on Mr. Musika's documents. She was ordered, however, by Judge Koh to keep her theories in line with what was allowed during the original trial.
Apple and Samsung have been fighting in courts around the world for more than a year over claims that they are infringing on each other's mobile device patents. Samsung has had limited success in the courtroom compared to Apple's string of wins like last August's landslide victory where a jury said it infringed on over 20 Apple patents.
This particular fight has Samsung digging in its heels in hopes of stopping, or at least stalling, the November's pending court date, which makes sense considering Judge Koh told both sides she wants them to present the same evidence to this new jury that they did during the original trial last year. That didn't work out so well for Samsung the first time around, so there's no reason to expect a different outcome this time.
Samsung also created another reason to try to stall the case: Its own damages expert came up with values that exceeded what the jury actually awarded Apple. That's a point Apple was happy to bring up and one that most likely doesn't sit well with Samsung. It's a tidbit Samsung most certainly wants to keep away from this fall's jury since it could lead to an even higher damages award than Apple originally received.
The bottom line is that Samsung will have to play its cards very carefully if it hopes to get the damages it owes Apple reduced. Apple's strong position going into November's damages retrial means it has a good chance of getting what it wants -- or at least avoiding losing some of its damages award. Samsung's best hope may be in getting a wild card jury that sides with it no matter what evidence is presented, and that sounds like a down right scary strategy.