updated 01:27 am EST, Wed February 5, 2014
Galaxy SIII, Galaxy Note 2 and Tab 2; iPhone 5 and iPad 4 among alleged infringers
In the upcoming trial between Apple and Samsung set to start at the end of March, each company is allowed to assert five claims and ten products it accuses the other of infringing. The new trial, which is not related to the first Apple-Samsung trial that saw Apple make a clean sweep of claims against Samsung (and won nearly $900 million in penalties, though both the verdict and damages are being appealed), will see Apple start the case with a slight advantage over its rival.
In pre-trial hearings, US District Judge Lucy Koh, threw out one of Samsung's five asserted patents entirely -- finding that Apple's prior art discoveries on the patent proved it invalid. Samsung had purchased the patent just months ahead of its legal fight with Apple, leading some to suspect its sole purpose was as leverage against Apple's stronger cases. The judge also ruled that Samsung was guilty of violating an Apple patent on its auto-correcting system -- a fact that will be mentioned in the forthcoming trial. as it is one of Apple's five asserted patents.
Judge Koh has limited the two companies to no more than five claims each, and that each company can list a maximum of 10 products each feels violates the disputed patents. Samsung has now opted to assert two claims from one of its four remaining patents to fill its limit of five claims, whereas Samsung could not disprove the validity of any of Apple's asserted five patents during pre-trial hearings.
Apple's patents largely concern search, sync, Siri and swiping technologies, while Samsung's deal with various communications protocols and audio-visual transmission and reproduction. Patent case analyst Florian Mueller has noted that two of the four remaining Samsung patents in this trial are "standards-essential," meaning they are subject to different licensing requirements are much more difficult to prove meaningful infringement.
The other two are not SEPs, but with Apple already having won a conviction on one of its five patents and with half of Samsung's remaining claims standards-essential (which in theory should mean they are ineligible to be sued over in the first place), the Korean handset maker goes into the case with a weaker hand than even the one it had at the beginning of the last trial. Apple also strongly prevailed over Samsung on the "claim construction" portion of the pre-trial hearings, meaning that mostly Apple's definitions of what was alleged to be infringed will be used.
Samsung accuses 10 Apple products of infringing its patents: the iPhone 4, 4S and 5; the iPad (second- through fourth-generation); the original iPad mini; the fourth- and fifth-generation iPod touch, and the MacBook Pro (but no other Mac products, oddly enough). For its part, Apple accuses 10 Samsung products of violating its patents (and all 10 have already been found "guilty" of infringing the auto-correct patent): the Admire; the Galaxy Nexus; the original and second-gen Galaxy Note; the original Galaxy S II, the S II Epic 4G Touch, and the S II Skyrocket; the Galaxy S III, still widely available; the Galaxy Tab 2 10.1 (also still available), and the Stratosphere. Judge Koh previously issued a sales ban on the original Galaxy Tab 10.1 for copying the iPad's design, though this was overturned on appeal.
The named products are meant to be representative of product classes that are infringing, and in the case of a victory the winner is entitled to name other products that violate the patents in the same manner; likewise, the 10 named products (mostly from 2012 or earlier) do not mean to infer that later products (such as the iPhone 5s or Galaxy S4) are not infringing or would be unaffected by a guilty finding. Many of the violations Apple asserts are inherent to the entire Android eco-system, which is why Google has participated indirectly in both the previous trial and this one.
Google or Samsung, along with HTC and Nokia, were also thought to be the driving forces behind "anonymous" ex parte requests for patent re-examination of a number of Apple patents, including the "data tapping" patent involved in this latest trial. While an initial re-examination, thought to be requested by Google, found some aspects invalid, Apple has appealed the decision and does not expect a final, enforceable invalidation of the patent until at least 2017. Apple's claim on that patent in this trial is one of the less-contested claims.
While most of the accused devices for this trial are no longer sold (or, in some cases, not even being manufactured anymore), a conviction will open the door to both punitive damages and potential sales injunctions on current and even future products that the winner says violates the same patents. A conviction of copying -- such as both the one relevant to this trial and the sweeping loss Samsung endured in the first trial -- is likely to influence the next jury.