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Apple's Game Revealed in Apple v. Samsung Post-Trial Skirmishes ~pj
Wednesday, April 17 2013 @ 03:36 PM EDT

Apple has filed several new documents in Apple v. Samsung -- the trial that never ends. The main issue is whether Samsung's request [PDF] for a stay in holding the new trial on damages should be granted. Apple votes no [PDF], again. It would prefer not to wait until the USPTO and the courts finish the reexaminations of two of Apple's patents, preferring an immediate retrial.

Why? It means setting damages for at least one patent claim the USPTO just decided isn't valid in a final office action and another patent that has been ruled preliminarily invalid, but this is Apple. It indicates it will appeal until it gets what it feels is the outcome it wants.

But that's not the real game. The real game is to get the appeals over with before the reexaminations plus all its appeals are finished, because, as Apple itself states, if a final invalidity ruling arrives after the appeals process is over, it doesn't "disturb an earlier final court judgment awarding damages for past infringement of those claims." So that's Apple's game. Take the money and run. It wants the damages trial to happen right away, so that the appeals process can get going quickly, to try to beat the timeline on the USPTO findings of invalidity. That way, even if the patents are ultimately found to be indeed invalid, Samsung will still have to pay the damages the deluded earlier jury sets.

Do you admire Apple for angling for such an outcome? I don't either.

See what happens when a jury gets things so very wrong? They wanted to "send a message" but the message turns out to be that US patent law can be wildly unfair. Samsung can be forced to pay for invalid patents, because that's how patent law in the US works currently. How do you like it? Think some reform might be in order? Add on top that these are software patents, which some, including me, think are not properly patentable subject matter, and it's cringe-worthy to watch this case play out like this.

The filings:

2306 - Filed & Entered: 04/10/2013
CONDITIONAL MOTION for Reconsideration of [2271] Order Granting New Damages Trial on Galaxy's II AT&T and Infuse 4G filed by Apple Inc.. (Attachments: # (1) Proposed Order)(Jacobs, Michael) (Filed on 4/10/2013) Modified text on 4/11/2013 (dhmS, COURT STAFF).

2307 - Filed & Entered: 04/16/2013
NOTICE of Change of Address by Charles S. Barquist (Barquist, Charles) (Filed on 4/16/2013)

2308 - Filed & Entered: 04/16/2013
RESPONSE to re [2304] Response ( Non Motion ), Apples Response to Samsung's Statement Regarding Patents in Reexamination by Apple Inc.. (Jacobs, Michael) (Filed on 4/16/2013)

2309 - Filed & Entered: 04/16/2013
Declaration of Nathan Sabri in Support of [2308] Response ( Non Motion ) filed byApple Inc.. (Attachments: # (1) Exhibit A, # (2) Exhibit B, # (3) Exhibit C)(Related document(s)[2308]) (Jacobs, Michael) (Filed on 4/16/2013)

2310 - Filed & Entered: 04/16/2013
RESPONSE to re [2299] Order on Stipulation, Order on Motion for Hearing, Order on Motion for Leave to File, Order on Motion for Reconsideration,,,, Apple's Reply to Samsung's Response to April 2, 2013 Order (ECF No. 2299) Regarding Appealability of March 1 Order Re Damages by Apple Inc.. (Jacobs, Michael) (Filed on 4/16/2013)

Apple asks the judge [PDF], the Hon. Lucy Koh, to correct her math in her March 1st order, saying she used the wrong date when granting Samsung's motion for a new trial on damages with respect to two products. Apple says the parties had reached a stipulation on the date the two were first sold, and that date is not the date the judge used. No one reaching determinations in this trial seems able to do math, but the truth is, the court allowed too many patents to be tried at once covering too many products, unlike Judge William Alsup in the Oracle v. Google trial. He streamlined it so it was at least something you could fit in your brain all at once, and that paid off. You don't see post-trial motions going on and on to time indefinite in that case.

Morrison & Foerster, Apple's law firm, next lets the court know that its L.A. office address has changed [PDF]. The move clearly hasn't impacted the lawyers' productivity. No doubt the firm is aware that this case will be bringing in the money for years to come. Thermonuclear patent wars cost mucho dinero, which is fine with the law firms. It's up to the client to tell them to stop. They'll happily carry your flag as long as you keep paying them.

Apple also contradicts [PDF] Samsung's reexamination predictions as to how long the reexaminations will take, expresses its confidence that Apple will prevail in the end, but says that end won't happen until mid-2017, unless the final office action is more quickly reversed by the USPTO and validity confirmed after all, so there's no reason to grant Samsung a stay. Translation: Apple will certainly appeal the ruling that claim 19 of its '381 patent is invalid and any other such rulings to the ultimate extent possible, and if it takes until 2017 for all that to play out, it will do it. Or at least it wants the judge to feel so exhausted at the thought that this case will perhaps still be on her docket in 2017, she decides to have an immediate damages trial to escape that fate. My first thought on reading this certainly was, "I hope I'm not still writing about this case for four more years!"

And finally Apple repeats its opposition [PDF] to Samsung's motion for a partial final judgment "for the reasons Apple has stated previously." Apple wants what it wants, an immediate retrial on damages and then a final order, not a partial final judgment now and a stay on retrying the rest, as Samsung has requested: "Accordingly, Apple believes that the March 1 Order may only be appealed after this Court holds a new trial on damages, calculates supplemental damages and pre-judgment interest, and enters a final judgment disposing of all claims in this case."

Here's Apple's calculations on how long the reexaminations of the '381 and '915 patents will take to conclude, from #2008, and notice the real reason it wants what it wants:

Samsung’s reexaminations statement ignores important steps in the process and USPTO statistics on completion times. Apple is confident that the claims will be confirmed in the reexaminations. But if final adverse decisions were the ultimate result, they likely would not occur until mid-2017 or later. The reexaminations should therefore not affect any decision now before this Court. Samsung’s requested stay is unwarranted and prejudicial.

The ’381 and ’915 reexaminations are many years from completion, unless they culminate in an earlier finding that the claims are patentable. The attached USPTO flowcharts, annotated to show the ’381 and ’915 reexaminations’ status, show the variety of paths reexaminations can take. (Sabri Decl. Ex. A.) Apple must respond by May 29, 2013, to a final office action in the ’381 reexamination, after which the examiner may reopen prosecution or find the claims patentable. (Id.; Dkt. 2291-1 at 2, 4; 37 C.F.R. § 1.116.) If the examiner maintains the rejection, Apple may file a notice of appeal to the PTAB by June 29, 2013. (MPEP 2265.I.) USPTO statistics show that the average time from notice of appeal to a PTAB decision as of 2012 was 36 months, or in this case June 2016. (Sabri Decl. Ex. B.)1 Apple may further request rehearing of any adverse PTAB decision (37 C.F.R. § 41.52(a)(1)), which would toll the deadline to appeal to the Federal Circuit (37 C.F.R. § 1.304(a)(1)), or appeal directly to the Federal Circuit (35 U.S.C. § 141). Federal Circuit statistics show that the median time from docketing to 18 disposition of cases originating from the USPTO as of 2012 was roughly 12 months. (Sabri Decl. Ex. C.) Thus, if the ’381 reexamination proceeds adversely to Apple, it is unlikely to reach final resolution until, on average, June 2017. The ’915 reexamination is at an even earlier stage.

The reexaminations on Apple’s patents should not affect this Court’s decisions on a new trial. Truly final adverse reexamination outcomes are unlikely to result (if at all) until well after the resolution of any appeal from this litigation. The Federal Circuit has indicated that, under its precedent, subsequent cancellation of claims in a reexamination does not disturb an earlier final court judgment awarding damages for past infringement of those claims. See In re Baxter Int’l, Inc., 698 F.3d 1349, 1351 (Fed. Cir. 2012). The pending reexaminations, which are 2 years from final, should therefore not affect any decision presently before this Court.

_____________
1 Samsung cites MPEP 2286 to support its suggestion that expedition will lead to a final PTAB decision 6-8 months after a request for oral hearing, but this section addresses only the possibility of shortened office action response periods before the examiner. (MPEP 2286.)

Capice? Apple wants Samsung to be ordered to pay damages on patents that probably will be found invalid, according to current USPTO rulings, and Apple wants to hurry up and make that happen right away, so that even if the USPTO and the courts reviewing its decisions ultimately decide the patents are indeed invalid, Samsung still has to pay. "Apple’s legitimate interests in achieving a timely conclusion to this case, having already prosecuted the case for two years and earned a jury verdict in its favor, would be prejudiced by putting this case on hold." But the jury goofed big time. Apple is acting like that doesn't matter enough to disturb the usual time flow.

Does that sound fair to you? Isn't justice supposed to be the desired outcome? "Samsung’s proposal would lead to delay and inefficiencies," Apple writes, but delay is what Samsung is asking for, so as to ensure fairness in the end. I'm sounding so naive. Here's your real patent law at work. It's all about gaming the system, being clever and winning even if you don't deserve to.

Anyway, now you understand what this little battle of legal wits is all about. Fairness and justice isn't on the Apple table in these filings, not by my lights. I read all this and feel like I need a shower to wash the ick off. I only wish Apple felt the same way.

Ultimately it's up to the judge. We'll see if she cares about fairness for Samsung at the end or more about efficiency. Surely, though, fairness is more important than administrative efficiency in promptly getting things wrong. No? Stay tuned.


  


Apple's Game Revealed in Apple v. Samsung Post-Trial Skirmishes ~pj | 293 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Apple's Game Revealed in Apple v. Samsung Post-Trial Skirmishes ~pj
Authored by: eric76 on Wednesday, April 17 2013 @ 03:42 PM EDT

Apple asks the judge [PDF], the Hon. Lucy Koh, to correct her math in her March 1st order, saying she used the wrong date when granting Samsung's motion for a new trial on damages with respect to two products. Apple says the parties had reached a stipulation on the date the two were first sold, and that date is not the date the judge used.

Just out of curiosity, if the parties to a lawsuit stipulate about something related to the lawsuit, is the judge required to honor that stipulation?

[ Reply to This | # ]

subsequent cancellation of claims in a reexamination does not disturb an earlier final court jud
Authored by: Wol on Wednesday, April 17 2013 @ 04:51 PM EDT
What impact would it have were Samsung to point out that Apple were clearly
asking for a miscarriage of justice ... ?

Cheers,
Wol

[ Reply to This | # ]

Apple and Fair appear to be directly contradictory concepts
Authored by: Anonymous on Wednesday, April 17 2013 @ 04:54 PM EDT

Judge:

    Will you, Apple, abide by the ruling of my findings?
Apple:
    If you find more then $1 per device, Nope!
For those unware of the above situation, this occurred in the Wisconsin lawsuit Apple initiated to ask the Court to "set a fair license fee for SEPs". To quote the Judges ruling:
It added, however, that it would be willing to pay a rate of no more than $1 for each Apple device going forward, while it retained the right to appeal any award higher than $1, as well as to refuse any such rate and proceed to further infringement litigation.
Perhaps it should have been evident earlier in the case that Apple was seeking only a ceiling on the potential license rate that it could use for negotiating purposes, but it was not. This became clear only when Apple informed the court in its October 31 response that it did not intend to be bound by any rate that the court determined.
Ahh - dismissal with prejudice. Justly deserved.

RAS

[ Reply to This | # ]

Patent Office Liability Insurance
Authored by: Anonymous on Wednesday, April 17 2013 @ 05:17 PM EDT
Hope the US Patent Office has enough liability insurance to cover all losses
when a company gets sued and looses big on a patent that never should have been
granted.

Sort of points to the US Government being responsible for covering all fines /
fees / awards when these come to trial.

Perhaps there should be a "turbo-charged re-validation" of every
patent before any patent trial can be held to validate that the patent is valid,
then post bond for any amounts that might be sought in case the patent turns out
to be invalid and the lawsuit was allowed to progress.

[ Reply to This | # ]

I wish I were a Judge...
Authored by: JonCB on Wednesday, April 17 2013 @ 05:37 PM EDT
If someone told me that their crown jewels were being re-
evaluated and it could take up to 32 months, i would totally
put the case on a 32 month stay until the completion of said
evaluation.

Thats 32 months where the two parties could come to their
senses and agree to a settlement. Meanwhile I could go on to
trying other cases. Talk about Efficiencies!

[ Reply to This | # ]

Corrections thread ...
Authored by: nsomos on Wednesday, April 17 2013 @ 05:59 PM EDT
Please post any corrections here.
Do not offer corrections to any PDF transcripts without
first checking against originals.

A summary in the posts title may be helpful.
e.g. Apple->slimy rotten Apple

[ Reply to This | # ]

Apple appears to have changed attorneys in the ReExam
Authored by: Anonymous on Wednesday, April 17 2013 @ 06:02 PM EDT
I don't know what it means, but I not that in re-exam 90/012,304 an new power of
attorney has been filed naming a different firm from the one that received the
final office action.

[ Reply to This | # ]

Off Topic Thread Here...
Authored by: lnuss on Wednesday, April 17 2013 @ 06:32 PM EDT
...

---
Larry N.

[ Reply to This | # ]

Newspicks Thread Here...
Authored by: lnuss on Wednesday, April 17 2013 @ 06:33 PM EDT
...

---
Larry N.

[ Reply to This | # ]

COMES Thread Here...
Authored by: lnuss on Wednesday, April 17 2013 @ 06:35 PM EDT
...

---
Larry N.

[ Reply to This | # ]

Apple vs Samsung
Authored by: Anonymous on Wednesday, April 17 2013 @ 08:08 PM EDT
While Apple and Samsung are playing Tweedledum and Tweedledee, who's watching their backs? PJ thinks this Taiwan news story puts the Foxconn MS patent license in perspective. While the pots and kettles are calling each other black, there's a sleeping giant on their doorstep. With the allocation of 4G spectrum China Mobile can start to forget its unfortunate experiment with TD-SCDMA, and domestic handset makers already providing WCDMA for China Unicom are starting to expand their markets. e.g. Jiayu and Oppo

[ Reply to This | # ]

Apple's Game Revealed in Apple v. Samsung Post-Trial Skirmishes ~pj
Authored by: Anonymous on Wednesday, April 17 2013 @ 08:57 PM EDT
I think Samsung should agree to a re-trial on the following conditions:

1. For each patent found invalid by the USPO, Apple will be required to pay
Samsung twice the amount awarded by the jury for that patent.

2. For each patent found invalid by the USPO, Apple will be required to pay
Samsung all reasonable attorneys' fees regarding that patent from the start of
this litigation.

3. If all patents are ultimately found to be invalid, Apple will pay the court
a fine of 10% of gross earnings for the 2013 fiscal year for wasting the court's
time.

[ Reply to This | # ]

Justice and Fairness
Authored by: Anonymous on Wednesday, April 17 2013 @ 10:11 PM EDT
I don't remember where or when, but I seem to remember someone
once saying something along the lines of (talk about a whole
pack of weasels in those words):
The American Justice System is not about justice or fairness.
It's all about procedure.

[ Reply to This | # ]

  • Justice and Fairness - Authored by: Anonymous on Wednesday, April 17 2013 @ 10:38 PM EDT
  • Money - Authored by: Anonymous on Thursday, April 18 2013 @ 11:32 AM EDT
    • Money - Authored by: Anonymous on Thursday, April 18 2013 @ 01:43 PM EDT
Apple's Game Revealed in Apple v. Samsung Post-Trial Skirmishes ~pj
Authored by: Anonymous on Thursday, April 18 2013 @ 01:53 AM EDT
I hope I'm not still writing about this case for four more years!
Unfortunately, on reading that, all I could think about was similar statements made during the SCO case(s). You seem to know how to pick 'em :-)

[ Reply to This | # ]

Fixing the system
Authored by: Anonymous on Thursday, April 18 2013 @ 06:08 AM EDT

Human systems usually get fixed when it has been demonstrated that the systems have been badly broken and are not delivering the desired results. This case may end up being one of those cited when the Patent system is eventually reformed.

It has all the elements, along with the case here RIM was forced to pay $600 Million for patents that were later invalidated.

Wayne
http://madhatter.ca

[ Reply to This | # ]

  • It wont.... - Authored by: Anonymous on Thursday, April 18 2013 @ 06:24 AM EDT
  • Fixing the system - Authored by: Anonymous on Friday, April 19 2013 @ 07:22 PM EDT
Judicial Efficiency
Authored by: OmniGeek on Thursday, April 18 2013 @ 09:29 AM EDT
I rather think that the most rational course of action for the judge would be to
punt everything until the USPTO circus folds its tent (and possibly until the
appeals court decides whether to nuke the jury verdict altogether). It's
shocking that a litigant would, in effect, expressly state that they wanted
"sentence first, verdict afterwards" in the form of setting damages
for infringing patents that have been found invalid.

A judge with a sense of fairness must surely be inclined to let the patent
situation clarify itself before going ahead with a retrial based on a flawed
jury verdict like this one, to say nothing of the fact that said verdict is
likely to be vacated on appeal.

---
My strength is as the strength of ten men, for I am wired to the eyeballs on
espresso.

[ Reply to This | # ]

Apple's Game Revealed in Apple v. Samsung Post-Trial Skirmishes ~pj
Authored by: mvs_tomm on Thursday, April 18 2013 @ 12:02 PM EDT
How can it be appropriate for any kind of trial to occur over a patent that the
PTO has ruled invalid? Sure, Apple can appeal. Maybe the patent will be
reinstated. Maybe it won't.

How is their current situation with the invalidated patent any different from
someone who has a patent pending? You can't sue someone for infringing a patent
that has yet to be issued, can you? How can there be a trial for damages for an
invalid patent?

Tom Marchant

[ Reply to This | # ]

They wanted to "send a message" ...
Authored by: Anonymous on Thursday, April 18 2013 @ 01:46 PM EDT
I think it would be more accurate to say that the FOREMAN (i.e., _he_, not they)
wanted to "send a message", and he bullied the rest of the jury into
allowing this to happen.

[ Reply to This | # ]

I don't understand
Authored by: kawabago on Thursday, April 18 2013 @ 03:13 PM EDT
I don't understand why these companies aren't simply saying
"Software is not Patent Eligible, all your patents are
invalid." It's like no one likes what's going on but they
won't change because no one will give up their own patent
weapons. Someone needs to grow up and say "All software
patents are invalid, including mine!"

[ Reply to This | # ]

Apple's Game Revealed in Apple v. Samsung Post-Trial Skirmishes ~pj
Authored by: Anonymous on Thursday, April 18 2013 @ 08:24 PM EDT
I'm getting really sick and tired of this mess. I know you don't want this
to be a political site. But there are a bunch of really bad laws, and the
lawmakers have no interest in fixing them. The only way I can see to fix
the problem is to change the lawmakers. There is an election in about
a year and a half. Do something about it!

[ Reply to This | # ]

Apple's Game Revealed in Apple v. Samsung Post-Trial Skirmishes ~pj
Authored by: Anonymous on Thursday, April 18 2013 @ 08:26 PM EDT
If the USPTO's invalidity ruling is tardy, can't Samsung just
file a motion for a new trial based on the discovery of new
and cogent evidence?

[ Reply to This | # ]

Time to go home PJ...
Authored by: Anonymous on Friday, April 19 2013 @ 02:13 PM EDT
"Fairness and justice isn't on the Apple table in these filings, not by my
lights. I read all this and feel like I need a shower to wash the ick off. I
only wish Apple felt the same way."

Wow, I wish you were more outraged over real problems than trivial squabbles
between large corporations.

How do you feel about Congress latest inability to pass gun reform because
lobbyists have more influence than voters?

How do you feel about Keystone pipeline and eminent domain being used to steel
land from homeowners on behalf of a foreign corporation?

How do you feel about the DOJ's inability to prosecute large banks like HSBC for
committing crimes like money laundering for drug cartels, because doing so would
upset the our economy.

The squabble between Apple and Samsung is a trifle.



[ Reply to This | # ]

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