Apple vs. Samsung: complete coverage of tech's biggest trial

In the long-running patent dispute between Apple and Samsung, Apple has won a victory that doesn't appear too damaging to Samsung, either. The iPhone maker was granted a motion to force changes to some patent-infringing Samsung phones, but the infringing devices have already long been retired.

The United States Patent and Trademark Office is reexamining one of the key patents in the battle between Apple and Samsung. Specifically, it is claiming that design patent D618677 — essentially the front of the iPhone 3G — was not sufficiently described by Apple. The decision could affect the size of the damages that Samsung is supposed to pay Apple, but a final number won't be determined for a while as the case is still with the courts awaiting a third trial.

Apple originally submitted this patent in November of 2008, but in the filing the company leaned heavily on two of its previous patents in order to give D618677 a "priority" protection date of January 5th, 2007. By doing this, the company essentially gave the patent two extra years of life that it could use to challenge competitors with similar designs. The new decision from the USPTO is that Apple did not sufficiently describe the D618677 patent enough to enjoy that protection, and so now the protection only extends back to the filing date of November 2008.

Apple is once again seeking a sales ban on over 20 different Samsung smartphones and tablets that were found to violate its patents last year. Though such a ban was initially rejected, last month Apple was given another chance to argue for one when an appellate court vacated the earlier ruling. Apple filed its renewed request for a permanent injunction yesterday, arguing that Samsung's ability to sell the infringing devices puts a potential burden on its smaller lineup of smartphones and tablets. Though Samsung has ceased selling all of the devices in question — such as the Galaxy Tab and AT&T's Galaxy S II — Apple argues that a ban is still important for preventing Samsung from selling them again in the future.

This time around, Apple will have a better chance at winning the injunction too. Though Apple won't be able to argue for a sales ban on the grounds of design patent infringement, it will have a lower bar to reach when arguing for an injunction over utility patents. Apple will now only have to show that Samsung's use of a patent it infringed on led to some demand for a device, rather than actually driving the device's sales as it did before. With none of the products currently on sale from Samsung — or particularly likely to go back on sale as they grow more outdated — the ruling likely won't have an immediate impact on consumers either way. But come this spring, when Apple and Samsung begin a second patent infringement trial, expect to see this new standard pop up again.

The damages retrial for last year's Apple vs. Samsung legal battle recently wrapped, and new court documents reveal how much Cupertino paid its legal team to get its wins: over $60 million. The revelations come as Apple requests that Samsung reimburse a portion of those legal costs. According to recent court filings, Apple wants its rival to pay a third of that, coming out to more than $15.7 million in attorney's fees — and that's on top of the over $6.2 million in trial-related costs Samsung is already on the hook for.

Apple primarily employed two law firms for its case: Morrison & Foerster, LLP handled the offensive side of the battle, while Wilmer Cutler Pickering Hale and Dorr, LLP covered the company's defense against Samsung's own claims of patent infringement. According to the documents, WilmerHale billed for around $2 million, where Apple expects to pay Morrison & Foerster $60 million all on its own — and that's with the fee reduced due to the firm's longstanding relationship with Apple. "Apple's in-house attorneys managed this case to a very disciplined budget," attorney Rachel Krevans writes in the filing. "As a result of all of these efforts and reductions, the hours underlying the fees at issue are reasonable." While reimbursing attorney's fees isn't a given in these kinds of cases, Apple is arguing that it's entitled to the payout under the Lanham Act due to what it characterizes as Samsung's "willful" misconduct.

In the damages retrial between Apple and Samsung we've seen accusations of racial bias and claims that the iPad mini wasn't inspired by the success of 7-inch tablets, but now we have the only piece of information that matters. The jury has just reached its verdict, and decided that Samsung should pay Apple over $290 million for infringing on the company's patents.

In August of last year a different jury found that Samsung was guilty of infringing Apple patents with a range of devices. Samsung had initially been ordered to pay Apple $1.049 billion in damages, but after further legal wrangling Judge Lucy Koh determined that the jury had incorrectly determined the amount of damages — and cut the amount down to less than $600 million. The balance of the amount was the subject of the damages retrial that's been taking place. According to the jury's verdict form, the total amount is $290,456,793, which is a significant drop from the more than $450 million that Koh cut, but it's clearly not the kind of number Samsung was looking for. Apple had been asking for $380 million out of the damages retrial, while Samsung was targeting a mere $52 million.

As reported by Reuters and CNET, one of the themes McElhinny touched upon was the importance of protecting intellectual property — a battle which he framed as having grand ramifications for both the US economy and the nature of innovation in Silicon Valley itself. He used the television manufacturing business as an example. Many US companies used to make televisions, he argued, but were forced out of business over time because they hadn't protected their intellectual property. "Our economy will disappear," McElhinny said. "If the cost of breaking the law is a small fine ... Samsung's copying will have proven successful."

Samsung's team called foul, with attorney Bill Price asking for a mistrial as a result, claiming that McElhinny was appealing to racial prejudices and concerns about outsourcing with his statements. Judge Lucy Koh, who's continued to show little patience with legal maneuvering from either side, denied the request. Reuters reporter Dan Levine noted that McElhinny argued against the charges, stating that he never mentioned race and that the history of the TV manufacturing business is broadly understood at this point in time.

In a ruling delivered today, the United States Court of Appeals for the Federal Circuit has given Apple another chance at halting sales of Samsung smartphones that infringe on its patents. The court has vacated District Court Judge Lucy Koh's earlier denial of Apple’s request for a permanent injunction against 26 Samsung products found by a jury to infringe in the monumental 2012 trial. That means Cupertino's lawyers will have another chance at permanently ending sales of those devices in the long-running legal showdown.

The court has sent the issue back to Judge Koh with respect to Apple's technical utility patents, where she will have to apply a new standard. Rather than showing that the patented features were the "sole" reason for driving sales of the products — a requirement the court found to be too strict — Apple will only have to show "some connection between the patented feature and demand for Samsung's products." The court went on to hold that an injunction might be warranted if the evidence shows "that the inclusion of a patented feature makes a product significantly more desirable," or that "the absence of a patented feature would make a product significantly less desirable." Now we'll have to see what "significantly" means. Not the primary reason, not a trivial reason, but something in between?

In front of a courtroom jury this morning, Apple marketing chief Phil Schiller claimed that Samsung's patent infringement has weakened "the view that the world has for Apple." By copying the company's marquee iPhone and iPad products, Samsung has effectively diluted Apple's brand, Schiller argued. That's made it difficult for Cupertino's products to stand out, in turn leading consumers to "question our innovation and design skills in a way that people never used to," Schiller said. "As this [infringement] has been occurring, it's harder for us to get new customers and bring them into our ecosystem." Schiller recalled the first time he saw a Galaxy smartphone, saying, "It looked exactly like the iPhone, so much so that people might confuse it."

The familiar testimony came during a retrial for damages in Apple’s patent infringement suit against Samsung. Following a contentious court battle last year, a jury ruled that Samsung had infringed on those patents and awarded Apple $1.05 billion in damages. But US District Judge Lucy Koh later declared that the jury had miscalculated approximately $450 million of that sum, leading to this week's retrial. (Samsung must still pay the remaining total regardless of this jury's decision.)

There was plenty of outrage, but little in the way of resolution, as attorneys for Apple and Samsung traded blows over allegations that Samsung's legal team intentionally shared confidential information from Apple's patent licensing agreements. Magistrate Judge Paul Grewal heard the arguments in San Jose, California today, with Apple's legal team looking for sanctions against Samsung and its outside counsel, the law firm of Quinn Emanuel Urquhart & Sullivan, LLP.

As part of the discovery process in the epic legal struggles between the two companies, Apple had handed over patent licensing agreements with Nokia, Ericsson, Sharp, and Philips. Those documents, marked "Attorney Eyes' Only," were considered confidential, but it's standard practice in these kind of circumstances for companies to provide documents under the court-ordered mandate that they not be shared with anyone outside the legal team in question.

In August the International Trade Commission issued a ruling that banned the import of some older Samsung smartphones and tablets for violating Apple's patent portfolio. The White House had 60 days during which it could have stepped in to veto the decision, but according to multiple reports President Obama declined to do so — and the ban is now in effect.

The ITC ruling doesn't specify precisely which devices will be covered, but it has been established that older devices like the Galaxy S 4G, Fascinate, and Galaxy Tab do infringe. At issue are two Apple patents that cover scrolling behavior and a device's ability to detect when headphones are plugged in. The ITC found that Samsung had infringed upon the two patents, though the ruling wasn't a total win for Cupertino; there were several other Apple patents that the ITC found were not infringed by Samsung products.

The International Trade Commission issued a ruling today banning certain Samsung devices for infringing upon Apple's patent portfolio. The import ban is subject to a 60-day veto period, where President Obama could elect to veto the decision. The patents in question cover scrolling behavior on smart devices and headphone jacks. The devices that are known to violate these patents include the Galaxy S 4G, Fascinate, Captivate, Galaxy Tab, and Galaxy Tab 10.1, as well as a handful of other smartphones and tablets released in 2010 and 2011.

Though the ITC ruled in favor of Apple on these two patents, it disagreed with Judge Pender's earlier decision that Samsung violated four other patents of Apple's. The President recently vetoed a similar import ban on Apple products requested by Samsung, but in that case those devices were found to be in violation of standards essential patents. In this recent decision, the patents are considered non-essential, which means that it is unlikely that this will be vetoed. The ITC is planning to release more details concerning its decision today at a later time.

Apple received some bad news last Friday regarding its infamous bounce-back patent, US 7,469,381. That's one of the technical utility patents Samsung was found to infringe at trial, and it's been the subject of a formal reexamination process at the US Patent and Trademark Office since last July. In October each and every claim of the '381 patent was initially rejected. On Friday, however, the USPTO issued what's called a "final" action in the reexamination — again rejecting nearly all of the patent claims, including the one asserted against Samsung at trial. "Final" has a fatal ring to it, but it's far less conclusive than that. While the issuance of a final rejection signals the end of this particular phase of the proceedings, we're still a long way from knowing which patent claims will ultimately survive the process.

This final office action is the next step, and there are still a few procedural options available to Apple, as it pointed out in a recent court filing. First, Apple will file a response to the final action in an attempt to get the USPTO to change course. If that doesn't work (and it often doesn't), then an appeal up the chain to the Patent Trial and Appeal Board will occur. If that doesn't result in a substantive reversal of the rejections, then there's always the option of appealing to the courts — namely, the US Court of Appeals for the Federal Circuit. Basically, we're at the bottom of the fourth inning.

Judge Lucy Koh has just delivered a serious blow to Cupertino in the Apple v. Samsung legal saga, cutting the damages awarded to the company down to $598,908,892 — and ordering a new trial to determine the remaining balance. In an order this morning, Koh stated that "the Court identified an impermissible legal theory on which the jury based its award," and as such was reducing the original $1.049 billion awarded to Apple in the trial's August verdict. Koh ordered that a new trial take place to determine new damages for the amount she cut — $450,514,650, to be precise — but said that she encouraged both sides to go through the appeals process before proceeding straight to a new trial.

Koh found two main errors in the way the jury calculated the damages awarded to Apple. They used Samsung's profits to determine the amount the company owed for infringing some of Apple's utility patents — a practice only appropriate when calculating damages owed when design patents have been infringed. They also erred when calculating the time period Apple should be awarded damages for. Koh explains that Apple was only due damages for product sales that occurred after Cupertino informed Samsung of its belief that the violations were taking place.

Tonight one of the big outstanding issues in the Apple vs. Samsung case came to a close when Judge Lucy Koh ruled that Samsung's infringement of Apple patents was not in fact willful. At issue are the seven design and utility patents that the jury found Samsung had infringed in a $1.049 billion win for Apple last August. The jury had decided that Samsung's infringement in five of the instances had in fact been willful — a finding that could have led to a ballooning of the damages Samsung would be instructed to pay. As part of the post-verdict proceedings, Samsung's legal team asked Koh to consider whether this should be challenged. Judge Koh agreed.

As Koh writes in the ruling, for an ultimate finding of willfulness to hold Apple needed to prove that there was an "objectively high likelihood that its [Samsung's] actions constituted infringement of a valid patent." Samsung had argued that it had reason to believe Apple's patents were invalid — so that even if Samsung had infringed, it couldn't be found to have done so willfully. Koh found Samsung's arguments reasonable enough to rule out an overall finding of willful infringement. In other words, she believed Samsung went into the whole situation with a reasonable belief that it wasn't in the wrong.

Samsung had hoped allegations of juror misconduct would win it a do-over in the Apple v. Samsung case, but tonight Judge Lucy Koh put those aspirations to rest by denying its request. Samsung had accused jury foreman Velvin Hogan of intentionally hiding information about a lawsuit he was involved in with Seagate. Samsung recently became a primary shareholder of the company, providing Hogan a reason to be biased. As such, the company had asked for an evidentiary hearing — in which all of the jury members would be brought back to the courtroom to be questioned about what impact Hogan had on deliberations — as well as a new trial.

In tonight's court filing, Judge Koh wrote that the discovery problem was the fault of Samsung's legal team. Hogan admitted he worked for Seagate during the jury selection process, she wrote, providing Samsung with ample opportunity to discover the litigation if the company's team had "acted with reasonable diligence."

By Nilay Patel and Matt Macari

Apple and Samsung returned to Judge Lucy Koh's courtroom today to argue over potential sales bans, recalculated damages, and whether the actions of the jury foreman are reason for Apple's $1.049 billion verdict to be thrown out altogether. "It's déjà vu all over again," said the court reporter as she walked in — the two companies are at the beginning stages of what will almost certainly be a long appeals process.

Last month Apple and HTC settled all of their patent litigation worldwide thanks to a 10-year licensing agreement — and now we're getting a look at a redacted version of that agreement courtesy of Samsung. The document is heavily redacted, with both the covered products and the fees paid by either side unreadable. What is visible, however, is what the agreement doesn't cover: it's specified that Apple's design patents and trade dress are still off limits to HTC. It seems to present a clear indication of what Cupertino was willing to offer — hardware and software patents, but not the elements that Apple believes make its products unique and distinctive.

That concern is echoed in the anti-cloning provisions in the agreement. It defines very specifically what would constitute cloning in Apple's eyes, spelling out that it's a combination of feature, patent, and visual presentation that makes up the "Distinctive Apple User Experience." The cross-licensing agreement between Apple and Microsoft contains similar anti-cloning provisions, but the terms here are particularly strict; HTC may be able to use Apple's slide-to-unlock patent to provide similar functionality, for example, but it can't look like the iPhone's feature or HTC would be guilty of cloning.

If you've been left a little nonplussed by Apple's lawsuits against Android hardware manufacturers, Google chairman Eric Schmidt is wondering the same thing. In an interview with the Wall Street Journal, Schmidt said it's "extremely curious that Apple has chosen to sue Google's partners and not Google itself." Apple recently settled its patent disputes with HTC out of court, and most famously won a protracted legal battle against Samsung earlier this year.

However, it's not too hard to see Apple's motivations. Samsung is the company making the most money directly from Android with its hugely successful line of products, many of which were found to infringe various Apple patents, and it's in Cupertino's interest to stop that happening where possible. In court, Apple produced a 132-page internal report from Samsung that directly encouraged its designers to take cues from the iPhone.

Earlier this month Samsung asked that the court force Apple to turn over its settlement agreement with HTC, and today US Magistrate Judge Paul S. Grewal granted that requested. According to Samsung, the document could play a vital role in determining whether it will need to take any of its products off the market in the wake of the $1.049 billion verdict Apple won back in August. If Apple licensed some of its unique user experience patents, Samsung argues, then Cupertino is clearly fine with competitors using that IP as long as it receives money in return — and since Apple will be receiving a payout in connection with the verdict, the extra step of an injunction isn't justified.

Apple's attorneys had previously agreed to share a version of the agreement that redacted the financial terms of the settlement; in a hearing today Samsung argued that the fees HTC is paying Apple indicate how much consumer demand there is for those features covered by the patents. While Judge Grewal did write that he was "more than a little skeptical" of Samsung's argument, he nevertheless ordered Apple to turn over the document. Unfortunately, it doesn't appear the details of the agreement will surface anytime soon, as it is being handed over subject to an "Attorneys-Eyes-Only" designation — basically, nobody but Samsung's legal team will get a look.

Earlier this week HTC and Apple put an end to their patent disagreements, and now Samsung is hoping to use that fact to prevent its own devices from being taken off the market. In a court filing today, Samsung asked the court to force Apple to turn over a copy of its settlement agreement to see which patents are covered in the deal. Specifically, Samsung wants to know if Apple licensed any of the patents that it was found to have infringed — including the bounce-back and pinch-to-zoom patents. If so, the company argues, Apple's request that infringing Samsung products be removed from the market falls apart, because Apple was happy to "forego exclusivity in exchange for money" — and in this instance, Apple is already receiving money in the form of a hefty $1.049 billion verdict.

During the Apple vs. Samsung trial earlier this year, Apple's Director of Patent Licensing and Strategy, Boris Teksler, stated that while Apple does license its standards-essential and computing patents, "we strongly desire not to license" the patents the cover its user experience. In Apple's mind, Teksler, said, no company would even need to license that particular set of intellectual property unless it wanted to build a clone of one of Apple's devices.

Judge Lucy Koh has agreed to consider questions on whether Samsung's decisive legal loss in August was improperly influenced by jury foreman Velvin Hogan. Last month, Samsung asked the court to investigate whether Hogan had concealed information about previous legal entanglements that could have revealed an anti-Samsung bias, and whether he introduced outside information that affected the verdict.

Yesterday, Judge Koh issued a statement saying that at a December 6th hearing, "the Court will consider the questions of whether the jury foreperson concealed information during voir dire [jury selection], whether any concealed information was material, and whether any concealment constituted misconduct. An assessment of such issues is intertwined with the question of whether and when Apple had a duty to disclose the circumstances and timing of its discovery of information about the foreperson."

During the Apple vs. Samsung trial, Samsung was able to question high-level Apple personnel like Phil Schiller and Scott Forstall (then still the head of the iOS team). As part of the post-trial action, US magistrate judge Paul S. Grewal has ordered that Samsung will get another crack at Schiller for three hours of deposition questioning.

The questioning is in connection with Apple's pursuit of a ban on some of the products that the jury found infringed Apple's intellectual property. At issue are comments made by Schiller in a court document declaring his support for the injunction. According to Samsung, some of the statements made were "new or in conflict with his testimony at trial," and the company felt Apple shouldn't be able to introduce them into the mix. If they were allowed, however, Samsung's legal team should at the very least get the opportunity to question Schiller themselves on the topics — hence the new deposition.

Earlier this month Samsung accused the jury foreman in the Apple v. Samsung trial of misconduct, arguing that Apple's $1.049 billion win should be thrown out in favor of a new trial. Now Apple has filed its response with the court, saying that Samsung had its shot to investigate foreman Velvin Hogan during jury selection — and that it's too late to complain now.

One of the main issues is that during jury selection Hogan was asked if he'd been involved in any lawsuits. He did mention one, but failed to disclose a breach of contract case from 1993 between him and his former employer, Seagate. Last year, Samsung became the single largest direct shareholder of Seagate. According to Samsung's legal team, that fact — along with the strong feelings about patent rights that Hogan expressed to this publication and others — indicate that he could have been biased against the company.

Hogan gave numerous interviews after the trial, including one with The Verge at the end of August. Most of what he had to say during these interviews was standard stuff: how the jury examined every accused product, how he kept the deliberations moving along, how they tried to be fair and objective, and so on. But the more he said, the more we all learned about his approach during the deliberations and his potential influence on the rest of the jury — and Samsung's lawyers clearly saw an opportunity, and perhaps an obligation, to investigate Hogan more closely. And Samsung's also questioning his truthfulness during the selection process (voir dire) that landed him on the jury in the first place.

Hogan's public statements on how he conducted himself during deliberations are certainly interesting, but we have to keep in mind that allegations of juror misconduct are rare, and it's even more uncommon for a court to find that a juror's conduct warrants a formal evidentiary hearing or a new trial. The jury system in the US is a valued and protected institution, and jurors are generally treated with kid gloves and are even required to operate behind closed doors during deliberations. Lawyers make their case in the courtroom and the jury decides however they want. If you go to the jury you have to take your chances — especially in cases like Apple vs. Samsung, where both parties were repeatedly urged to settle by the court.