In response to US federal judge Lucy Koh's promise that a jury trial wouldn't happen this summer unless the number of infringement claims in the case were significantly pared down, both Apple and Samsung filed their respective streamlining proposals yesterday. Judge Koh didn't pull any punches last week in saying that it would be "cruel and unusual punishment to a jury" to proceed to trial with the case in its current state. On initial glance, it looks on paper like both parties made substantial efforts to simplify things with their court filings, but given what they started with — over two dozen patents and almost as many trademark and trade dress infringement claims — it's far from certain that the court will think this is enough to keep the July 30 trial date on her docket.
A svelte push to the end?
For its part, Apple agreed to drop three technical utility patents, two design patents and all six of its remaining trademark claims from the case — in addition to a few other claims it had already nixed in recent months. As such, Apple would like to proceed to trial with four utility patents on various gesturing and scrolling features, four design patents on the iPhone, one design patent on the iPad, and trade dress infringement claims covering the appearance of the iPhone and the iPad. While that's still a lot to present to a jury, Apple told the court that it believes its proposal represents a significant reduction in the scope of the case, and that it "will be able expeditiously to present the case on its patents in a manner readily understandable by the jurors." Apple goes on to argue the importance of getting to that July trial date:
"With each passing day, Apple loses customers and revenue as a result of Samsung's infringement. In light of the market conditions in which Apple operates, any substantial delay in the trial date vitiates its case."
Still 66 product comparisons
As you might imagine, Samsung has a different take on Apple's proposal. Rather than focusing on the patents and other allegations removed from Apple's case, Samsung focuses instead on what remains — specifically, the number of products and infringement considerations the jury will still be tasked with deciding. Samsung points out that Apple only dropped two of its seven design patents and, consequently, "the parties and the jury will be required to make at least 66 Samsung product to design patent comparisons" just in relation to those design patents alone. As for pruning its own case, Samsung agreed to drop from 12 utility patents down to seven, arguing that it "would have been willing to reduce its claims even further" if not for "Apple's refusal to narrow its case." Samsung even goes as far as to boldly assert the following:
"Unable to compete in the marketplace, Apple is instead seeking to compete through litigation, requesting injunctions against the full lineup of Samsung's mobile phones and tablet products."
Arguing that Apple isn't competing in the marketplace with the iPhone and iPad seems a bit silly, but all is fair in love and litigation. And while removing five patents in preparation for trial is at least a positive move from Samsung, Apple isn't likely to think it's enough, especially considering its very public plea that Samsung is still improperly using essential standards patents in a retaliatory manner.
There's a lot going on here, and in some ways not a lot has changed. There's no way to know how the judge will react, but we suspect she'll see this more as a baby step toward getting the case in condition for trial than as an acceptable achievement. However, with mediation scheduled to take place later this month between company executives, maybe this will serve as the motivating spark for settlement. It's alright to keep your fingers crossed; just don't hold your breath.