On Wednesday afternoon attorneys representing Apple and Samsung convened in Judge Lucy Koh’s downtown San Jose courtroom to discuss the upcoming jury trial on patent and trademark infringement damages. Last year a jury ordered Samsung to pay Apple over one billion dollars in damages, but jury errors in calculating the damages meant that a new trial would be necessary to properly assess monetary rewards. Since winning the case Apple has not been able to block sales of Samsung devices deemed to infringe Apple’s intellectual property. Furthermore, the United States Patent Office has issued final rejections on two software patents Apple used in last year’s case, more recently invalidating Apple’s “rubber band” patent on mobile device displays. Samsung wanted a new trial due to the rubber band patent rejection, but Judge Koh denied the motion.
The majority of the hearing was dedicated to the logistics of holding a new trial before the end of the year. Samsung wishes to exclude evidence presented in last year’s trial that does not relate to damages calculations. The judge requested that both parties meet to provide more guidance on the evidence to be sealed, the list of witnesses, and the preliminary instructions the jury will use in the upcoming trial. As the new trial will only concern damages, Judge Koh expects jury selection to happen November 13 and the jury to begin deliberations on November 19. Taking into account breaks, Koh calculated the jury would be in session five and a half hours per trial day. Another hour could be too much, as Koh quipped, “I don’t think I will be able to stay conscious” for six and a half hours, and she does not expect the jury to stay awake that long either. Judge Koh also asked that each side be limited to nine hours for evidence presentation. After getting Apple and Samsung counsel to initially agree, Koh joked, “How about eight?” Lead Apple attorney Harold McElhinny is requesting more time as Apple will have the burden of explaining complicated accounting work to the jury for justifying the final damage reward.
Samsung will be challenging Apple’s damages as well as Apple’s expert for the damages. As the original Apple expert on damages died last December, Apple expert Julie Davis is tasked with explaining to a jury later this year the reasoning behind the reward Apple is seeking. Samsung has some objections to the substitution, but Judge Koh reiterated that Davis should be restricted to the same methods and analysis the previous expert used. Samsung is free to attack Davis’ credibility but cannot generally impeach the expert and her report. McElhinny complained that in contrast Samsung’s damages expert has interviewed new witnesses in Korea and analyzed material related to the patent rejections. Davis’ deposition is set for next week.
A new jury trial on damages Samsung owes Apple should start in three months. Since prevailing in last year’s trial, Apple has continued developing its product line but has not prevented Samsung from selling products infringing on Apple’s patents and trademarks. The two tech companies will continue the longstanding patent war with a trial set for next year on patents for newer products.