updated 07:16 pm EDT, Tue July 2, 2013
Samsung wishes November retrial to be pushed back further
In the shadow of the buildup for the 2014 Apple versus Samsung patent trial, the 2012 trial echoes are still being heard. Samsung is attempting to get the case schedule for the limited damages retrial vacated, claiming that Apple is breaking the court's rules by claiming "vastly greater damages" than it was awarded in end of the first landmark trial. Samsung believes that Apple's new damages expert, hired after the death of Terry Musika, is using faulty assumptions to stack the deck in Apple's favor.
During the first trial, Apple prevailed on all counts and was awarded a billion dollars in judgement, approximately 40 percent of what it claimed for damages. In a wide array of post-trial motions, Samsung challenged the verdict numerous times, with Apple challenging aspects that it did not like as well. Ultimately, there was no change in the list of infringed patents in the trial, or in Samsung's guilt. The only part of the trial found lacking were damages, based on incorrect dates of availability supplied by Apple, which were used in the jury's calculations for awards.
After a back-and-forth court process where initially 14 products had $450 million in damages set aside for re-examination, damages will need to be re-assessed for 13 products, totaling $400 million. Apple will still receive at least $600 million from Samsung for infringement, and Judge Lucy Koh has ordered the damages retrial be as similar to the last one as possible, with Apple and Samsung presenting the same claims to the second jury, with the exception of corrected dates of retail availability for the infringing Samsung products.
Complicating the judge's vision of an identical trial, as mentioned earlier Apple damages expert Terry Musika died not long after the trial from pancreatic cancer. Apple has appointed CPA Julie Davis to recalculate the damages and present a new report -- which is what Samsung is taking umbrage to.
Samsung claims that Ms. Davis report is egregiously violating the court's orders for as similar an assessment to the first as possible. In one of the few unredacted passages the motion for relief, Samsung claims that "Ms. Davis's new report: (a) improperly changes the designaround 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."
Apple has refused to retract the report, and believes that the trial schedule can be kept, despite Samsung's protestations to the contrary. Additionally, Apple points out that in several places, the Samsung damages expert proposed awards higher than that awarded by the jury, with Apple's lawyer Michael Jacobs saying that "if you look at the verdict here and you look at it in its aggregate, you look at it at least as to certain products, the number the jury awarded is smaller than Wagner's number."
Even before the current arguments, the very fact of a retrial on part of the damages awarded Apple meant that it was possible -- though it initially seemed unlikely -- that Apple could actually win additional damages. The amount set aside has not be removed from Apple's award, but will be recalculated by the new jury. Since they will see the same evidence that convinced the previous jury to award a billion-dollar judgement, the second jury may choose to take a similar path -- resulting in an adjustment that could slightly favor Samsung or Apple.