updated 07:30 pm EDT, Thu April 24, 2014
Splits difference between what each side wanted, aims to avoid damages retrial
[Update: both sides file arguments against the form] On Wednesday, US District Court Judge Lucy Koh published a draft form that jurors in the second Apple-Samsung patent trial will fill out to assign damages and royalties due -- if any -- to both Apple and Samsung as warranted by their findings of infringement. Apple is suing Samsung over its alleged copying of five patents, while Samsung is countersuing over claims Apple infringed on two patents the Galaxy S5 maker purchased after the first Apple-Samsung patent trial.
When Judge Koh originally introduced the document to lawyers for both companies, she was surprised that neither side immediately voiced any objections (as has been their wont throughout the trial over any possible matter). As in the first trial, Samsung had originally submitted a highly-granular and complicated form for jurors to fill out, while Apple had offered a far simpler document with seven or eight basic questions and a dollar amount to be assigned to each.
In the previous trial, Koh went with Apple's form, not wanting to burden the jury unduly -- but later had to preside over a limited damages retrial to fine-tune the awarding of damages to Apple because the amount Apple won in the first trial -- it was awarded $1.05 billion, with Samsung getting nothing for its counterclaims -- were judged to be too vaguely calculated. The retrial lowered the amount Apple won slightly, down to $940 million.
This time, Judge Koh has written a 12-page form that -- in the words of patent case analyst Florian Mueller -- "strikes a Solomonic balance between Apple's slightly too simplistic nine pages and Samsung's way too complicated 34-page proposal." At the core of the compromise is a concession to Samsung that damages should be calculated on a per-product-per-patent basis, essentially a two-dimensional matrix that should avoid the possibility of a mistrial or damages retrials. Apple, which saw its original damages in the first trial lowered, is unlikely to offer any strong objections to the concession, as the rest of the form's tenor and structure follows Apple's proposal fairly closely.
While adding a modest layer of complexity to the jury's task, the formula will guard against the possibility of a full retrial should some later portion of the damages be found to be calculated incorrectly, or a later finding of a individual patent being invalid. Closing arguments in the current trial are expected to begin on Monday, with jury deliberations to start immediately afterwards. Apple is requesting $2.191 billion from Samsung, while Samsung -- which had a weaker case both offensively and defensively -- has asked for $40.2 million in royalties due. Both sides in the trial have managed to score some points, and it will be interesting to see if the new jury's conclusions on this different set of patents is any less lopsided that the first jury's all-Apple victory.
[Updated] Reverting to previous form, both Apple and Samsung on Thursday filed complaints with the court over the proposed jury form used for assessing guilt and assigning damages based on the patents disputed in the trial. Apple objects to the proposed form, saying it is too complex for the jurors, who would need to answer 15 questions but make some 250 individual judgements on damages on a per-product-per-patent basis. Apple's original form had eight questions with a total dollar damage award blank for each.
Samsung argues that the form is not complex enough, and had originally asked for a 35-page document that contained 50 questions. Attorneys for Apple say that the company is largely happy with Judge Koh's form, but wants changes on two portions. Samsung told the judge that more detail from the jurors about individual damage amounts would provide "a more transparent understanding" of the jury's reasoning.
One of the points of contention is that Apple wants it noted that for a short period of time, Samsung substituted a workaround for one of the disputed patents -- and thus the jury should not just blanket find guilt or damages on the entire time the accused product was available. Samsung's attorneys acknowledged this and complained to the judge that Apple was "not accusing all operating software versions and subversions" of infringement, laying the groundwork for a likely appeal argument.
Apple also wanted a section where jurors must fill out a chart pertaining to three separate questions covering three time periods, five patents and 10 accused products, a total of 60 boxes, broken up for clarity. Both parties will present their arguments to the judge on Friday and she will likely rule on the matters raised on the same day in the interests of allowing the trial to proceed.