On Friday the parties representing Apple and Samsung met in downtown San Jose for another scheduled hearing. The hearing lasted about two hours and went over more issues before the rapidly approaching jury trial. The courtroom was only a quarter full because the judge already issued the preliminary injunction that the court was going to discuss on Friday, but the hearing gave new clarity to the fight between Apple and Samsung.
The story behind the preliminary injunction reaches back over a month. Originally Judge Koh denied the preliminary injunction barring the sale of the Samsung Galaxy Tab. Apple appealed the decision to the Court of Appeals for the Federal Circuit (CAFC), which handles the cases related to specific fields of federal law including patent law. The CAFC decision notes that Mr. Michael Jacobs of Morrison and Foerster argued the appeal on behalf of Apple. On May 14, the same day Mr. Jacobs was giving the closing statement for Oracle in the patent phase of the Oracle v. Google trial, the CAFC affirmed Koh’s decision in part regarding three of the four patents Apple used to justify the preliminary injunction. The CAFC reversed and remanded on the last patent because the CAFC believed that the District Court erred when it ruled that Samsung raised a substantial question regarding the validity of Apple’s tablet computer design patent, D504,889 patent, or D’889 patent for short.
During the last hearing, Judge Koh said that the next hearing would be about the Galaxy Tab preliminary injunction, but the hearing on the injunction was vacated. Last Tuesday, Koh issued the order granting the preliminary injunction barring the sale of the Samsung Galaxy Tab 10.1 tablet computer in the United States. Koh wrote that the CAFC instructed the District Court to conduct a balancing of the hardships and to consider the public interest in granting the preliminary injunction. Judge Koh decided that both factors weighed towards Apple’s request to grant the injunction, and “upon further review of the briefing and further consideration of the record on this matter, the Court concludes that another hearing on these issues is unnecessary.” The Court already concluded that denying the injunction would cause Apple irreparable harm, so the Court could not support any further delay of the injunction. Therefore, Friday’s hearing was much smaller in scope than originally expected.
First Judge Koh wanted to know what support existed for determining the trade dress profits. Samsung counsel said that with respect to apportionment of profits no authority exists. The lawyer continued that he did not think anyone can claim Samsung’s profits result from infringement of Apple’s design patents.
The judge also wanted to know why Samsung would rely on surveys for the apportionment of profits. Samsung explained that precedent suggest against using a formula for apportionment. Each of four surveys Samsung requested raided a question of attaching a number to design. Apple did not care about two of the four surveys as benchmarks. One of Samsung’s experts estimated the percentage of Samsung’s profits relying on an infringing design as five percent or less.
Koh had more questions for Apple’s decisions regarding expert testimony. She asked Apple if they were going to pick and choose from eight experts about testifying about the Apple brand. Apple responded that, with eight standards to cover, none of the experts take on all of the standards required. Apple assured the judge that the experts would not repeat testimony regarding the standards. Apple also wanted to mention the “irreparable harm” to Apple for the jury, but Koh responded that the court could talk about that after the jury trial. Apple stated that they wanted the jury to have context for the damages Apple is requesting from Samsung. Finally, the judge wanted to know why Apple’s expert should talk about what ordinary members perceive about a product if the jury is composed of ordinary members. Apple argued that the jury would not see themselves as ordinary members. The expert testimony is helpful and critical to the combination of obviousness. Additionally the question of secondary teaching requires an ordinary person skilled in the art to which the patent belongs.
After issuing a new injunction barring the sale of the Galaxy Nexus smartphone in the United States, the court moved to housekeeping. Koh asked both sides to narrow their cases by next Tuesday. Apple and Samsung would need to create two sets of jury instructions, what they agree on and what they disagree on, including why they think their instructions are better when different. Both sides would exchange the list of exhibits and actual exhibits by July 5. Koh agreed to select eleven jurors. Apple and Samsung would need to take pictures of the witnesses for the jury and give jury books for taking notes. Samsung mentioned that they will have people coming in from Korea, so they need three rows reserved for their company to use. Koh also confirmed the jury trial would use the courtroom currently used instead of her courtroom for the extra capacity.
The next Apple v. Samsung hearing is tomorrow morning. The court took a break to look at the new injunction, but Samsung counsel mentioned that they did not have anyone present that was working on the Galaxy Nexus injunction case. Tomorrow’s hearing should be on Samsung’s motion to stay the smartphone injunction, and a report on the hearing should follow soon thereafter, at least before the holiday.