updated 03:49 pm EST, Wed November 20, 2013
Previously attempted Samsung tactic tried again as USPTO hearings continue
In a last-ditch effort to stop the jury deliberation of the now concluded Apple versus Samsung damages retrial, Samsung has made an emergency filing based on a comment from the US Patent and Trademark Office, which said that an Apple patent may not be valid. According to the filing, the USPTO questions if Apple's "pinch to zoom" patent, a key patent used in the retrial, is valid. Samsung believes that "this PTO decision calls into question the entire jury verdict in this trial."
The declaration by the USPTO requires Apple to file more documentation and argue for the validity of the patent - a process which it has done successfully several times in other cases. Despite Samsung's claim that this is a "decision" by the USPTO, it is in fact part of a long and often-reversed process - and neglected to mention that it or its allies (such as Google) may have been behind the challenge to the patent's validity.
Even though the '915 patent is still considered valie until finally overturned by the USPTO and all legal challenges afterwards exhaused, Samsung claims that "during its presentation, Apple made a deliberate decision not to separate the damages between the different asserted patents. Therefore, it will be impossible to determine what allocation of damages belong to the invalid '915 patent versus the other patents."
The presiding judge, Judge Lucy Koh, has previously denied a similar request following other USPTO actions on the same patent, and said at that time that Samsung could re-issue requests if the USPTO did ultimately invalidate the patent. Final invalidation is still at least 18 months away, with another 18 months at a minimum of legal challenges by Apple. Judge Koh has not yet ruled on the new request.