Apple, Samsung gear up for fight on triple damages, injunctions, and 'no reasonable jury'


There's no doubt Apple walked out of the San Jose courtroom Friday afternoon the undisputed winner according to the jury in the Apple v. Samsung case, but there are still many details to work out as the trial process wraps up. We're not even close to appeals yet, although those will absolutely come later. There's still a lot to do in Judge Koh's courtroom over the next few weeks.

The post-trial process isn't pretty, but it can be incredibly important

Today will mark the beginning of a new chapter in the case: a brutal stretch of legal briefings and in-court debates, where both Samsung and Apple will break down and scrutinize a large number of those 700 individual questions tackled by the jury. And we know how much these attorneys like to file papers with the court — there were around 2000 formal objections filed just for the trial stage of the case. Obviously, Samsung will have far more to complain about, but you can rest assured that Apple will lodge several challenges of its own.

In the immediate future, both sides will file motions for a "judgement notwithstanding the verdict," or JNOV. It's exactly what it sounds like: Samsung will essentially ask Judge Koh to overturn the verdict in its favor on nearly every issue where the jury found in favor of Apple. This will include the jury's position that Samsung infringed Apple's intellectual property, that Apple's patents were held to be valid, that Samsung's infringement was willful, and the determinations that all of Samsung's patents were found to not be infringed by Apple. Similarly, Apple will likely file motions to challenge the jury's finding that some of its trade dress protection on the iPad didn't exist, and that the Galaxy Tab didn't infringe its design patent. Moreover, the jury was forced to correct several of its damages calculations after the verdict was read, so we're sure there will be continued questions about whether the final numbers make sense.

Judge Koh will be reluctant to take either machete or scalpel to the verdict

The scope and appropriateness of such motions can be complicated — for instance, a party filing the motion must have previously raised the issue after the opposing side presented its primary case to the jury — but in reality it's simply Samsung and Apple's way of asking Judge Koh to overturn all or a part of the jury's verdict. Right or wrong, the jury system is a cherished institution in the US, so judges are reluctant to take either machete or scalpel to verdicts. The legal standard for disrupting the verdict is also extremely strict: in order to make changes, Samsung and Apple will have to persuade Judge Koh that "no reasonable jury" could have come to a particular conclusion. That's a pretty tough threshold to get over.

Apple is also asking the court for injunctions based on the verdict, and that hearing is already set for September 20th. This is often the scariest thing about a patent case for a defendant — the risk that your products will be yanked from the market — but Samsung introduces a lot of new products each quarter, so it may be a little less fearful than most. Apart from the Galaxy S II, most of Samsung's infringing products aren't on the market anymore. The Galaxy Nexus and S III aren't part of this case, so they won't be affected by this outcome. So even if Apple can prove that it will be irreparably harmed by continued sales of these older devices, Samsung's newest flagship phones will come out of this battle unscathed.

Judge Koh will decide whether to triple the damages

Mixed in with all of this will be Apple's inevitable motion to increase the damages based on the jury's finding that Samsung's infringement was willful. This is Apple's most important outstanding issue. The law allows Koh to increase the damages up to three times if the jury finds willful infringement, so Apple's billion-dollar win could turn into three billion. While significantly increasing damages based solely on a finding of willfulness is not the norm, there are reasons for Samsung to be worried. First, a great deal of evidence was presented in the case showing that Samsung intentionally and methodically copied aspects of the iPhone and iOS. Second, Samsung's attorneys angered Koh and her magistrate on more than one occasion. All of that can be taken into account by the court in determining whether an increase in damages is warranted — the goal is to encourage settlement, and triple damages are used to disincentivize companies from pushing a bad case through the courts. While outright tripling a jury's damage award is not very common, we wouldn't be at all surprised if the court decided to bump that 1.04 billion dollar award up a bit.

And there's still always the possibility of settlement. Both Apple and Samsung have already risked a great deal in letting a jury of nine people decide their fate, and Samsung paid an enormous price for that gamble. The Korea Times reports that an emergency meeting took place at Samsung headquarters on Sunday in response to the verdict, with one executive apparently saying "it's absolutely the worst scenario for us." Samsung's negotiating leverage isn't what it was a few days ago, but things can change quickly — especially with all of those other outstanding lawsuits between the companies around the world. Any one of those separate battles can go against either Apple or Samsung, further changing the balance of power. A universal settlement still makes sense for both parties if they can just get past the initial awkwardness of the conversation and decide who will be designated the net winner.

As always, we'll be following every development closely, so stay tuned.

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