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Apple v. Samsung Preparing for Dec. 6th Hearing - Can the Judge Throw Out the Jury's Damages? ~pj
Monday, November 19 2012 @ 08:53 PM EST

After a long week-end on my part, I see that catching up with the Apple v. Samsung post-verdict motions means going through an appallingly long and complicated list of new filings.

This must be what it feels like to be a marriage counselor. The parties come in, all upset with each other, fervently and loudly enumerating in detail each others' sins up to the heavens, asking you to say *they* are right, and you sit there not knowing what some of what they are saying is even talking about. Even when you do, where do you start with those two?

I have no hope of explaining all of it in one article, so I'll just highlight three items, and I'll show you the docket with all the PDFs, and little by little, I'll try to explain the things that matter most.

For now, suffice it to say that the parties are building up to the December 6th hearing, and it's hot and heavy going, fighting over every little -- and every big -- thing. The big thing is whether or not the judge has the authority to overrule the jury's verdict. On subsidiary issues, Apple doesn't want Samsung to be able to show [PDF] the court production models of newly available design-around versions of the Galaxy S II (T Mobile) (SGH-T989) and a production model of the Galaxy S II Epic 4G Touch (SPH- D710), newly produced uninfringing products, because, Apple claims [PDF], "the record is closed." I mean. Too closed for something that significant? Apple is asking for an injunction, after all, and it claims the new models do still infringe, and evidence of new noninfringing products in the hands of the court is too late? For what? Justice?

The big issue is whether or not the judge can toss out the jury's verdict, the damages part in particular. Apple wants some of Samsung's exhibits excised on the basis that they're "blah blah, too late, not relevant, blah blah", to summarize with my lip a bit curled. Very circuitous reasoning. I'll show you that in actual detail. But they really don't want them in the case because one of them is the judgment dated November 9, 2012 issued by the England and Wales Court of Appeal, ruling that Samsung didn't copy Apple's design patent. How much logic is there to give Apple a lot of damages for a design patent the UK court just ruled was not infringed? And there is a new ruling in another case that Apple wants the court to take notice of, because, I gather, they think it held that jury verdicts are to be treated reverently, but I think they may not have read it all the way through, as it seems to support Samsung's position in one very significant particular, as I'll show you.

Here are the filings, first:

2125 - Filed & Entered: 11/09/2012
Administrative Motion to File Under Seal
Docket Text: Administrative Motion to File Under Seal Exhibit 25 to the Declaration of Susan Estrich filed by Samsung Electronics America, Inc.(a New York corporation), Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC. (Attachments: # (1) Proposed Order Granting Samsung's Administrative Motion to File Documents Under Seal)(Maroulis, Victoria) (Filed on 11/9/2012)

2126 - Filed & Entered: 11/09/2012
Declaration in Support
Docket Text: Declaration of Susan Estrich in Support of [2013] MOTION for Judgment as a Matter of Law, New Trial and/or Remittitur Pursuant to Federal Rules of Civil Procedure 50 and 59, [2054] Brief, [2053] Opposition/Response to Motion, filed bySamsung Electronics America, Inc.(a New York corporation), Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC. (Attachments: # (1) Exhibit 1 to the Estrich Declaration, # (2) Exhibit 2 to the Estrich Declaration, # (3) Exhibit 3 to the Estrich Declaration, # (4) Exhibit 4 to the Estrich Declaration, # (5) Exhibit 5 to the Estrich Declaration, # (6) Exhibit 6 to the Estrich Declaration, # (7) Exhibit 7 to the Estrich Declaration, # (8) Exhibit 8 to the Estrich Declaration, # (9) Exhibit 9 to the Estrich Declaration, # (10) Exhibit 10 to the Estrich Declaration, # (11) Exhibit 11 to the Estrich Declaration, # (12) Exhibit 12 to the Estrich Declaration, # (13) Exhibit 13 to the Estrich Declaration, # (14) Exhibit 14 to the Estrich Declaration, # (15) Exhibit 15 to the Estrich Declaration, # (16) Exhibit 16 to the Estrich Declaration, # (17) Exhibit 17 to the Estrich Declaration, # (18) Exhibit 18 to the Estrich Declaration, # (19) Exhibit 19 to the Estrich Declaration, # (20) Exhibit 20 to the Estrich Declaration, # (21) Exhibit 21 to the Estrich Declaration, # (22) Exhibit 22 to the Estrich Declaration, # (23) Exhibit 23 to the Estrich Declaration, # (24) Exhibit 24Manual to the Estrich Declaration, # (25) Exhibit 25 to the Estrich Declaration, # (26) Exhibit 26 to the Estrich Declaration, # (27) Exhibit 27 to the Estrich Declaration, # (28) Exhibit 28 to the Estrich Declaration, # (29) Exhibit 29 to the Estrich Declaration, # (30) Exhibit 30 to the Estrich Declaration, # (31) Exhibit 31 to the Estrich Declaration)(Related document(s)[2013], [2054], [2053]) (Maroulis, Victoria) (Filed on 11/9/2012)

2127 - Filed & Entered: 11/09/2012
Administrative Motion to File Under Seal
Docket Text: Administrative Motion to File Under Seal Regarding Apples Reply Brief In Support Of Motion For A Permanent Injunction And Damages Enhancement filed by Apple Inc.. (Attachments: # (1) Proposed Order, # (2) Apples Reply In Support Of Motion For A Permanent Injunction And For Damages Enhancements, # (3) Declaration Of Karan Singh, Ph.D., In Support Of Apples Reply In Support Of Its Motion For A Permanent Injunction And For Damages Enhancements, # (4) Declaration Of Richard S.J. Hung In Support Of Apples Motion For Permanent Injunction And Damages Enhancement; And Judgment As A Matter Of Law (Renewed), New Trial, And Amended Judgment [FRCP 50, 59], # (5) Exhibit 1, # (6) Exhibit 2, # (7) Exhibit 3, # (8) Exhibit 4, # (9) Exhibit 5, # (10) Exhibit 6, # (11) Exhibit 7, # (12) Exhibit 8, # (13) Exhibit 9, # (14) Exhibit 10, # (15) Exhibit 11, # (16) Exhibit 12, # (17) Exhibit 13, # (18) Exhibit 14, # (19) Exhibit 15, # (20) Exhibit 16, # (21) Exhibit 17, # (22) Exhibit 18, # (23) Exhibit 19, # (24) Exhibit 20, # (25) Exhibit 21, # (26) Exhibit 22, # (27) Supplement 23, # (28) Robinson Decl. Ex. 2)(Jacobs, Michael) (Filed on 11/9/2012)

2128 - Filed & Entered: 11/09/2012
Exhibits
Docket Text: EXHIBITS Manual Filing Notification Exhibit A To The Declaration Of Karan Singh, Ph.D., In Support Of Apples Reply In Support Of Its Motion For A Permanent Injunction And For Damages Enhancements filed byApple Inc.. (Jacobs, Michael) (Filed on 11/9/2012)

2129 - Filed & Entered: 11/09/2012
Declaration in Support
Docket Text: Declaration Reply Declaration Of Marylee Robinson In Support Of Apples Motions For A Permanent Injunction, For Damages Enhancement, For Supplemental Damages And For Prejudgment Interest; And Judgment As A Matter Of Law (Renewed), New Trial, And Amended Judgment [FRCP 50, 59] filed byApple Inc.. (Attachments: # (1) Exhibit 1, # (2) Exhibit 3, # (3) Exhibit 4)(Jacobs, Michael) (Filed on 11/9/2012)

2130 - Filed & Entered: 11/09/2012
Declaration in Support
Docket Text: Declaration Reply Declaration Of John R. Hauser In Support Of Apples Motion For A Permanent Injunction filed byApple Inc.. (Attachments: # (1) Exhibit A, # (2) Exhibit B, # (3) Exhibit C, # (4) Exhibit D, # (5) Exhibit E, # (6) Exhibit F, # (7) Exhibit G)(Jacobs, Michael) (Filed on 11/9/2012)

2131 - Filed & Entered: 11/09/2012
Reply to Opposition/Response
Docket Text: REPLY (re [2013] MOTION for Judgment as a Matter of Law, New Trial and/or Remittitur Pursuant to Federal Rules of Civil Procedure 50 and 59 ) filed bySamsung Electronics America, Inc., Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC. (Estrich, Susan) (Filed on 11/9/2012)

2132 - Filed & Entered: 11/09/2012
Reply to Opposition/Response
Docket Text: REPLY (re [2002] CORRECTED MOTION for Judgment as a Matter of Law (Renewed), New Trial, And Amended Judgment [FRCP 50, 59] ) Reply In Support Of Apples Motion For Judgment As A Matter Of Law (Renewed), New Trial, And Amended Judgment (FRCP 50, 59) filed byApple Inc.. (Jacobs, Michael) (Filed on 11/9/2012)

2133 - Filed & Entered: 11/10/2012
Proposed Order
Docket Text: Proposed Order [Proposed] Order Granting Apples Motion For A Permanent Injunction And Damages Enhancement by Apple Inc.. (Jacobs, Michael) (Filed on 11/10/2012)

2134 - Filed & Entered: 11/10/2012
Certificate of Service
Docket Text: CERTIFICATE OF SERVICE by Apple Inc. re [2127] Administrative Motion to File Under Seal Regarding Apples Reply Brief In Support Of Motion For A Permanent Injunction And Damages Enhancement (Jacobs, Michael) (Filed on 11/10/2012)

2135 - Filed & Entered: 11/13/2012
Terminated: 11/14/2012
Motion for Leave to File
Docket Text: MOTION for Leave to File (A) Declaration of Albert P. Bedecarre in Support of Samsungs Opposition to Apples Motion for a Permanent Injunction and Damages Enhancement and Samsungs Opposition to Apples Motion for Judgment as a Matter of Law, New Trial and Amended Judgment; and (B) Manual Filing Notification for Exhibits 1 and 2 to Declaration of Albert P. Bedecarre filed by Samsung Electronics America, Inc.(a New York corporation), Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC. (Attachments: # (1) Exhibit 1 to Samsung's Administrative Request for Leave, # (2) Exhibit 2 to Samsung's Administrative Request for Leave, # (3) Declaration of Albert P. Bedecarre in Support of Samsung's Administrative Motion for Leave, # (4) Exhibit 1 to Declaration of Albert P. Bedecarre in Support of Samsung's Administrative Motion for Leave, # (5) Proposed Order)(Maroulis, Victoria) (Filed on 11/13/2012)

2136 - Filed & Entered: 11/13/2012
Order on Administrative Motion to File Under Seal
Docket Text: ORDER by Judge Lucy H. Koh denying [2089] Administrative Motion to File Under Seal (lhklc2, COURT STAFF) (Filed on 11/13/2012)

2137 - Filed & Entered: 11/14/2012
Statement
Docket Text: Statement of Recent Decision (L.R. 7-3 (d)) by Apple Inc.. (Attachments: # (1) Attachment)(Jacobs, Michael) (Filed on 11/14/2012)

2138 - Filed & Entered: 11/14/2012
Order on Motion for Leave to File
Docket Text: ORDER by Judge Lucy H. Koh granting [2135] Motion for Leave to File (lhklc2, COURT STAFF) (Filed on 11/14/2012)

2139 - Filed & Entered: 11/14/2012
Declaration in Support
Docket Text: Declaration of Albert P. Bedecarre in Support of [2138] Order on Motion for Leave to File, [2053] Opposition/Response to Motion, [2054] Brief, filed bySamsung Electronics America, Inc.(a New York corporation), Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC. (Attachments: # (1) Manual Filing Notification for Exhibits 1 and 2 to Declaration of Albert P. Bedecarre)(Related document(s)[2138], [2053], [2054]) (Maroulis, Victoria) (Filed on 11/14/2012)

2140 - Filed & Entered: 11/15/2012
Declaration in Support
Docket Text: Declaration of Peter J. Kolovos in Support of [2125] Administrative Motion to File Under Seal Exhibit 25 to the Declaration of Susan Estrich filed byApple Inc.. (Attachments: # (1) Exhibit 1, # (2) Proposed Order)(Related document(s)[2125]) (Selwyn, Mark) (Filed on 11/15/2012)

2141 - Filed & Entered: 11/16/2012
Administrative Motion to File Under Seal
Docket Text: Administrative Motion to File Under Seal Motion to Compel Depositions of Apple Reply Expert Declarants filed by Samsung Electronics America, Inc.(a New York corporation), Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC. (Attachments: # (1) Declaration of Hankil Kang, # (2) Proposed Order Granting Samsung's Administrative Motion to File Documents Under Seal, # (3) Motion to Compel Depositions of Apple Reply Expert Declarants, # (4) Declaration of Victoria F. Maroulis, # (5) Exhibit 1 to Declaration of Victoria F. Maroulis, # (6) Proposed Order Granting Samsung's Motion to Compel Depositions of Apple Reply Expert Declarants)(Maroulis, Victoria) (Filed on 11/16/2012)

2142 - Filed & Entered: 11/16/2012
Stipulation
Docket Text: STIPULATION WITH PROPOSED ORDER re [2141] Administrative Motion to File Under Seal Motion to Compel Depositions of Apple Reply Expert Declarants and Samsung's Motion to Compel Production of HTC Settlement Agreement filed by Samsung Electronics America, Inc.(a New York corporation), Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC. (Attachments: # (1) Declaration of Victoria F. Maroulis, # (2) Exhibit 1 to Declaration of Victoria F. Maroulis)(Maroulis, Victoria) (Filed on 11/16/2012)

2143 - Filed & Entered: 11/16/2012
Notice of Appearance
Docket Text: NOTICE of Appearance Samsung Electronics America, Inc., Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC Notice of Appearance of Daryl M. Crone (Crone, Daryl) (Filed on 11/16/2012)

2144 - Filed & Entered: 11/16/2012
Motion to Compel
Docket Text: MOTION to Compel Production of Settlement Agreement with HTC filed by Samsung Electronics America, Inc., Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC. Responses due by 11/20/2012. Replies due by 11/20/2012. (Attachments: # (1) Declaration of Daryl M. Crone, # (2) Exhibit 1, # (3) Exhibit 2, # (4) Exhibit 3, # (5) Proposed Order)(Crone, Daryl) (Filed on 11/16/2012)

2145 - Filed & Entered: 11/16/2012
Objection
Docket Text: OBJECTIONS to re [2131] Reply to Opposition/Response, [2126] Declaration in Support,,,,,,, Apple's Objections to New Evidence Submitted with Samsung's Reply in Support of Judgment as a Matter of Law, New Trial, and/or Remittitur by Apple Inc.. (Jacobs, Michael) (Filed on 11/16/2012)

2146 - Filed & Entered: 11/16/2
Docket Text: Declaration of Hankil Kang in Support of [2127] Administrative Motion to File Under Seal Regarding Apples Reply Brief In Support Of Motion For A Permanent Injunction And Damages Enhancement filed bySamsung Electronics America, Inc.(a New York corporation), Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC. (Attachments: # (1) Exhibit A to the Kang Declaration, # (2) Exhibit B to the Kang Declaration, # (3) Exhibit C to the Kang Declaration, # (4) Exhibit D to the Kang Declaration, # (5) Exhibit E to the Kang Declaration)(Related document(s)[2127]) (Maroulis, Victoria) (Filed on 11/16/2012)

2147 - Filed & Entered: 11/16/2012
Objection
Docket Text: OBJECTIONS to re [2130] Declaration in Support, [2129] Declaration in Support, [2127] Administrative Motion to File Under Seal Regarding Apples Reply Brief In Support Of Motion For A Permanent Injunction And Damages Enhancement SAMSUNGS OBJECTIONS TO APPLES REPLY EVIDENCE by Samsung Electronics America, Inc.(a New York corporation), Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC. (Attachments: # (1) Declaration DECLARATION OF VICTORIA F. MAROULIS IN SUPPORT OF SAMSUNGS OBJECTIONS TO APPLES REPLY EVIDENCE, # (2) Exhibit 1 Exhibit 1 to DECLARATION OF VICTORIA F. MAROULIS IN SUPPORT OF SAMSUNGS OBJECTIONS TO APPLES REPLY EVIDENCE)(Maroulis, Victoria) (Filed on 11/16/2012)

I know. So, so many. That's why I didn't get some of the less important ones. But as you see, Samsung has added [PDF] another lawyer to the team. It is important in that the new lawyer is Daryl M. Crone of Crone Hawxhurst, a new firm to this fight, not just another new lawyer from Quinn. The firm's logo says, "Smart... Creative... Relentless." And Mr. Crone's bio notes that "In 2009, 2010, 2011 and 2012, Los Angeles Magazine recognized Daryl as a Southern California 'Rising Star'.” One of the firm's "representative clients" is Oracle. As we saw in the Oracle v. Google litigation, and in the SCO wars, Oracle's inclination is to street fight, one might put it, in a totally serious way, brass knuckles at the ready, so to speak, so I take it Samsung would like some more brainy muscles added to the team, to provide still more persuasive force. Not that they don't have plenty already. His specialty, I gather, is settlement. I couldn't help noticing that. Samsung has said publicly it has no interest in settling, and I believe them at this point. But I'm sure that would depend on the terms. And sometimes, as you may have observed, after a street fight, the two fighters stand up, brush each other off, and walk off as friends. That's if both fought hard and they respect each other. The same thing does happen in courtrooms. I'm not saying it will. Just that it can.

The three highlights:

1. Apple is objecting [PDF] to certain Samsung exhibits, specifically exhibits 12 through 15 attached the Declaration of Susan Estrich in support of Samsung's motion [PDF] for judgment as a matter of law. ApplevSamsung-2126Ex13.pdf, one of the exhibits that Apple would prefer the court to block, is a deposition earlier this month of Marylee Robinson, who opines as an expert for Apple, kind of stepping into the shoes of Terry Musika, who became ill after the trial verdict and who worked, she says, with her, that people buy Samsung tablets to get the patented features allegedly infringed, causing Apple harm. (By the way, some of the other exhibits to #2126 are large excerpts from the trial transcript, exhibits 1-11.) Her declaration is in support of even more damages post-verdict on top of what he figured out before the verdict. The exhibit, her deposition, is over 100 pages long, but here's a brief snippet to give you an idea of how it went:

A. There's a variety of features that a tablet -- there's lots of features in a tablet that could be appealing to a customer.

Q. Could you give me some examples?

A. Screen size, camera, operating system. There's -- those are a couple examples.

Q. Do the internal documents that you refer to in the first sentence of paragraph 40 of your declaration show that consumers actually purchased the tablets because of the patented features?

A. No, it does not.

Q. Do any documents that you -- Samsung documents that you reviewed in this case show that consumers actually purchased tablets because of the patented features?

A. No, not -- I'm not aware of any specific documents.

Q. You then go on, in paragraph 40, to say "For example, in April 2011 internal report, Samsung described one of its tablets products under development as, "Lacking Fun, Wow Effect," in part because, "movements lack bounce effect." Did I read that right?

A. Yes.

Q. Does Apple own intellectual property over "fun"?

A. No.

Q. Does Apple own intellectual property over "wow effect"?

A. No.

Q. And I believe you testified before that Apple -- that you don't know whether the '381 Patent covers all bounce effects on a touchscreen; correct?

A. That was my testimony.

I suspect Apple would patent "fun" if it could find a way. The deposition goes on hilariously like that for miles and miles, with Ms. Robinson saying she never studied X, she didn't research Y, and she doesn't know anything about Z. I think it's not hard to figure out why Apple doesn't want this deposition considered by the judge in connection with Samsung's JMOL motion or anything else. But the stated reason for objecting to the various exhibits, including this one, is this:
Apple objects to Exhibits 12 through 15 to the Estrich Declaration (Dkt. 2126-12 to 2126-15) on the ground that they are not and cannot be relevant to Samsung’s Motion for Judgment as a Matter of Law, New Trial and/or Remittitur.

Exhibit 12 is a judgment issued by the England and Wales Court of Appeal in a lawsuit that Samsung filed against Apple. (Dkt. 2126-12.) Exhibits 13, 14, and 15 include over 200 pages of recent deposition testimony of Marylee Robinson, Russell Winer, and Philip Schiller. (Dkt. 2126-13 to 2126-15.) This evidence is not relevant to Samsung’s JMOL Reply. Indeed, this evidence could not possibly be relevant to Samsung’s motion for JMOL, New Trial, and/or Remittitur because it was not admitted at trial, and Rule 50 and Rule 59 motions must generally be limited to the evidence in the trial record. Torres v. City of Los Angeles, 548 F.3d 1197, 1205 (9th Cir. 2008) (“Judgment as a matter of law is appropriate when the evidence presented at trial permits only one reasonable conclusion.”); Molski v. M.J. Cable, Inc., 481 F.3d 724, 729 (9th Cir. 2007) (upon the Rule 59 motion of a party, the district court must “weigh the evidence as [the court] saw it”). Evidence outside of the trial record might, in some cases, be relevant to jury misconduct, but Samsung’s new evidence is not relevant to that issue, as shown by Samsung’s failure to cite that evidence in the jury misconduct section of its JMOL Reply. (Dkt. 2131 at 1-5.)

The irrelevance of Estrich Declaration Exhibits 12 through 15 is further confirmed by Samsung’s failure to cite this new evidence in its JMOL Reply or substantive declarations, except for six lines of the hundred-page Robinson deposition transcript. Those six lines are irrelevant because they fail to support the point for which they are cited: Samsung’s argument that “Apple does not dispute the validity of Samsung’s explanation of how the jury reached its damages awards.” (See Dkt. 2131 at 12:17-19, citing Dkt. 2126-13 at 88:2-8.) Ms. Robinson stated that she found “no errors in the math” of Mr. Wagner’s discussion of the verdict, but testified that she did not know how the jury reached its award and only knew the amounts on the verdict form. (Dkt. 2126-3 at 88:2-15.) She did not admit that Samsung had correctly explained how the jury reached its verdict, which would require speculation as to what the jury was thinking.

Here's the Samsung JMOL Reply [PDF] Apple is talking about, the one it claims the exhibits are not relevant to, except that it references them in a way Apple doesn't like. And here's Samsung's earlier motion to strike parts of Ms. Robinson's Declaration [PDF], among others. Here's what it wanted excised from hers:
C. Paragraphs 34-36, 38-40, and 42 of the Declaration of Marylee Robinson in Support of Apple’s Motions for a Permanent Injunction, for Damages Enhancement, for Supplemental Damages and for Prejudgment Interest;
That didn't work, based on a technicality.

So now, Samsung, in its Reply regarding its JMOL motion, says that the court has authority to correct jury errors. More than that, it has a duty. It quotes a ruling that held “working the math backwards strongly suggests that the jury must have used some [improper] calculation”, and that's obviously the case here:

A. The Court Can And Should Interpret The Damages Verdicts And Correct Errors

Apple does not dispute the validity of Samsung’s explanation of how the jury reached its damages awards—an explanation that plainly reveals the need for corrective action by the Court. Mot. 17-18; Dkt. 1990-20 (“Wagner Decl.”); see Robinson Depo. Tr. at 88:2-8, Estrich Reply Decl., Ex. 13. Instead, Apple insists that “[p]recedent forbids” any consideration of how a jury reached its awards. Opp. 17. In fact, precedent dictates that an identifiable error should be corrected where “a candid assessment of the jury’s calculations justifies it” and “there is no other plausible explanation for the amount calculated by the jury.” In re First Alliance Mortg. Co. 471 F.3d 977, 1001 (9th Cir. 2006); see id. at 1003 (courts should not “ben[d] over backwards to find a potentially valid basis in the record for the jury verdict”).11 Apple cites Los Angeles Mem’l Coliseum Comm’n v. NFL, 791 F.2d 1356 (9th Cir. 1986), but nothing in that case “forbids” scrutinizing a damages verdict and the Ninth Circuit distinguished it in First Alliance, see 471 F.3d at 1001. Federal Circuit authority is similar. See, e.g., Lucent Techs., Inc. v. Gateway, Inc., 580 F.3d 1365, 1336-38 (Fed. Cir. 2009) (“working the math backwards strongly suggests that the jury must have used some [improper] calculation”). It is proper to examine the bases of a jury’s damages awards, particularly where Apple resisted including any detail in the verdicts (see RT 3852:24-3856:10; Dkt. 2054 at 25). See Lighting Ballast Control, LLC v. Philips Elecs. N. Am. Corp., 814 F. Supp. 2d 665, 692-93 (N.D. Tex. 2011) (construing verdict’s ambiguity against plaintiff after it defeated defendant’s request for “some way to tell us [the] type of award”).12

In addition to misstating when a jury’s damages verdicts should be examined, Apple misstates when errors in such verdicts warrant relief. According to Apple, a jury’s damages verdicts are immune from scrutiny so long as they fall “within the range encompassed by the record as a whole,” and the verdicts here fall within that “range” because they are lower than the damages Apple sought. Opp. 17. Yet Apple ignores that courts grant remittitur or new trial not only when a verdict is “intrinsically excessive,” but also when a court can, by examining a verdict, identify particular amounts that are attributable to error. Mot. 24 (citing Cornell Univ. v. Hewlett Packard Co., 609 F. Supp. 2d 279, 292 (N.D.N.Y. 2009) (Rader, J.)).13 The jury’s awards here were infected by identifiable errors; the Court must take action to correct these erroneous awards.14

Not relevant, these exhibits? I think the judge might be intensely edified by reading the UK decision that Samsung did not copy Apple's design patent, but I'm just a paralegal. Samsung is, after all, saying in its JMOL motion that at a minimum it deserves judgment as a matter of law on that design patent that the UK court found didn't infringe the design patent. Anyway, it's my best guess she read it already, but there are legal reasons Samsung wants it in the record.

In the law, there's evidence and there's procedure, and the latter is what Apple is relying on by saying it's too late/not relevant to add these exhibits to the JMOL motion, and it's not relevant to the filings that are timely. Samsung does reference the Robinson motion in its JMOL Reply, but Apple cites Samsung's "failure to cite that evidence in the jury misconduct section of its JMOL Reply." That's splitting the hair might thin, but to tell you the truth some of the orders in this case have, in my view, done just that. So who knows?

I know some of you, if not all of you, at this point are saying, "This is stupid. Of *course* it's relevant in any context", but that's not how it works. Not taking a side, but just so you understand, the only things that work on a JMOL motion are things that are not in any way in contention. I believe the entire world is aware that Apple disagrees with the UK ruling. And Apple also points out that there are rules about attachments, and deadlines, and Samsung, it says, missed the boat on that twice:

Apple also objects to Estrich Declaration Exhibits 12 through 15 as an improper attempt to circumvent the Court’s briefing order of August 28, 2012, which stated that “[a]ny supporting documentation shall be for corroboration purposes solely and shall not be used as a vehicle for circumventing the Court’s page limits.” (Dkt. 1945 at 3.)

Because Samsung’s new evidence is not relevant to Samsung’s JMOL Reply, it cannot corroborate that motion. The title of the Estrich Declaration suggests that Samsung seeks to use the new evidence to support its Oppositions to Apple’s JMOL Motion and to Apple’s Motion for Permanent Injunction and Willfulness Enhancements. (Dkt. 2126.) But Samsung filed those oppositions four weeks ago on October 19, as required by the briefing order, which did not authorize Samsung to submit further evidence after that deadline. (Dkt. 1945 at 2-3.)

On October 29, Judge Grewal granted Apple’s motion to compel depositions of four Samsung experts who had submitted entirely new opinions with Samsung’s Permanent Injunction Opposition, and also allowed Samsung to depose the three persons for whom Samsung has submitted deposition testimony as Estrich Declaration Exhibits 13, 14, and 15. (Dkt. 2105 at 4.) Judge Grewal emphasized, however, that allowing the depositions did “not change the page limits or the deadlines set by Judge Koh,” and that he could not grant Samsung leave to submit an additional opposition based on the post-trial deposition testimony. (Id.) Judge Grewal also emphasized that “the parties would be wise to heed Judge Koh’s warnings that supporting documentation should be employed as corroboration and not as an opportunity to circumvent the page limits.” (Id.) Samsung’s new evidence violates these directions.

____________
11 Nothing in First Alliance suggests it is confined to cases where “instructional error and inadmissible evidence” led to an erroneous damages award. Opp. 18.

12 Revolution Eyewear, Inc. v. Aspex Eyewear, Inc., 563 F.3d 1358, 1371 (Fed. Cir. 2009), does not reject scrutinizing a damages verdict; the court there affirmed only because the evidence supported the award. Apple’s cases from other jurisdictions are likewise factually and legally distinguishable. See Krause v. Dresser Indus., Inc., 910 F.2d 674, 679-80 (10th Cir. 1990) (affirming award of $165,000 for employment termination where amount was supported by “ample evidence”); Midwest Underground Storage, Inc. v. Porter, 717 F.2d 493, 501-02 (10th Cir. 1983) (reverse engineering verdict before affirming award of $3,900,000); Chuy v. The Philadelphia Eagles Football Club, 595 F.2d1265, 1279 n.19 (3dCir. 1979) (affirming award of $60,000 in punitive damages for mistreatment of injured player).

13 See also Brown v. Ala. Dep’t of Transp., 597 F.3d 1160, 1183 (11th Cir. 2010) (remanding “where the court can identify an error that caused the jury to include in the verdict a quantifiable amount that should be stricken.”); United States v. Medshares Mgmt. Group, Inc., 400 F.3d 428, 458 (6th Cir. 2005) (affirming remittitur of improper portion of award although “it was not entirely clear how [the jury] calculated the award of damages”); Kirsch v. Fleet St, Ltd., 148 F.3d 149, 165 (2d Cir. 1998) (“Where the court has identified a specific error . . . the court may set aside the resulting award even if its amount does not shock the conscience.”).

That last footnote means even if the amount is not so excessive as to "shock the conscience", the judge can still set aside the jury's math if it's simply wrong. Was it? Seriously, *you* try to make its math and/or logic add up. As Samsung mentions in an earlier footnote, the verdict form and hence the jury didn't even separate what amount was for trade dress violation and what was for patent infringement:
10 For the same reasons, and in light of the verdict form’s failure to separately assess damages by patent or trade dress, setting aside the liability verdict as to any one claim will mandate a new trial on damages as to all products relating to that claim. Mot. 17
You shouldn't hand over billions, or really any figure, in other words, that is just pulled out of the air. This is a courtroom, after all, where there is supposed to be evidence underpinning everything. They didn't change that yet, did they?

The last dispute was about Samsung saying it was Apple who was not following the court's briefing order, and yet Apple got away with it, so we'll see what the judge decides about all this. He just attended the conference put on by Santa Clara Law on what to do about the software patents problem, and at least one participant mentioned Apple's bounce-back patent as being an example of the problem, and that patent is in the main tent regarding Ms. Robinson's deposition.

Plus, what is the point of the judge allowing new depositions if nothing new that comes up can be used? Why let them go through an empty exercise? The other side of that argument would be that there has to be an end to every dispute. It's why you go to court, to get finality, so at some point the curtain should go down.

Personally, I think the UK case *is* relevant to the JMOL motion, not to mention everything else, in that an entire section is titled "No Reasonable Jury Could Find Infringement of Apple’s Design Patents." And the Robinson deposition is relevant because her expert opinion seems to have been based on not much at all in any specific sense other than what other Apple experts told her without independent checking on her part, would undermine the value of that testimony, and if the jury or judge were to rely on it, or the Musika testimony she is vouching for now that he's not available, then what's irrelevant about it? Just because a lawyer says something is irrelevant, it doesn't make it so necessarily.

2. Apple Cites a New Decision.

This is an unusual case, which explains some of the intensity of the post-verdict lawyering, in that Samsung believes, as do I, that the jury verdict was farcical and not based on reality.

Apple is undoubtedly worrying about that too, because it has filed a recent ruling [PDF] that it hopes will influece the judge to decide that it doesn't matter what the jury based its ruling on, that one must not interfere with a jury's verdict, and it should respect the jury's wacko damages verdict and also slap an injunction on Samsung's products:

Pursuant to Local Rule 7-3(d)(2), Apple submits the following attached opinion published by the Federal Circuit on November 13, 2012 after the reply brief submitted in this case: Edwards Lifesciences AG v. Corevalve, Inc., No. 2011-1215, -1257, slip op. (Fed. Cir. Nov. 13, 2012). The opinion is relevant to Apple’s outstanding motion for a permanent injunction (Dkt. No. 1982) and Samsung’s motion under Federal Rule of Civil Procedure 50 (Dkt. No. 1990). Among other things, it addresses the standard for review of a damages verdict, see slip op. at 16, and the circumstances under which a permanent injunction should issue following a jury verdict, see slip op. at 16-19.
Among other things, indeed. Here's one, something Apple didn't notice in the case [PDF]:
See Brooktree Corp. v. Advance Micro Devices, 977 F.2d 1555, 1580 (Fed. Cir. 1992) (“the jury’s finding must be upheld unless the damages award is ‘grossly excessive or monstrous,’ clearly not supported by the evidence, or based only on speculation or guesswork”). With respect to the verdict of willful infringement, although this finding was sustained by the district court, the court declined to enhance damages or award attorney fees, stating that the issues were “sufficiently close” and the defenses not frivolous. See Bard Peripheral Vascular, Inc. v. W.L. Gore & Assocs., Inc., 682 F.3d 1003, 1005 (Fed. Cir. 2012) (enhancement of damages is not automatic). We do not discern abuse of discretion in the court’s decision not to enhance damages....

The Court in eBay did not hold that there is a presumption against exclusivity on successful infringement litigation. The Court did not cancel 35 U.S.C. §154, which states that “Every patent shall contain . . . a grant . . . of the right to exclude others from making, using, offering for sale, or selling the invention,” nor did the Court overrule Article I section 8 of the Constitution, which grants Congress the power to “secur[e] for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” The Court held that equitable aspects should always be considered, stating: “We hold only that the decision whether to grant or deny injunctive relief rests within the equitable discretion of the district courts, and that such discretion must be exercised consistent with traditional principles of equity, in patent disputes no less than in other cases governed by such standards.” eBay, 547 U.S. at 394. Statutory and historical as well as commercial considerations impinge on every equitable determination.

See what I mean? The highlights are my own. The public has reacted, a large segment at least, to the jury's verdict and found it both monstrous and based on mere guesswork, not based on anything discernible that makes any sense. Do the math for yourself and see if you can even parse out a sensible foundation, let alone make the totals link up to anything at all. Every time the foreman showed up in the media, comments expressed disgust and dismay, with commenters asking what has happened to the US legal system. If on top of the megabucks the jury already wishes to give Apple, in the words of the foreman to send a message, if the judge also adds on top of that triple damages, the public will be simply appalled.

I shouldn't speak for everyone, but *I'll* certainly be appalled at such double dipping. Talk about excessive . And Judge Richard Posner pointed out that Apple couldn't prove any specific damages, but even if there were some, they wouldn't be anything worth shaking a stick at, not substantial enough to warrant an injunction.

I mean, law is supposed to be related to justice, is it not?

3. Samsung's Motion to Compel:

The final highlight, for now, is that Samsung has filed a motion to compel Apple to show it's settlement agreement terms with HTC, something that Tim Worstall at Forbes points out could negatively impact Apple's case, which is no doubt why Samsung wants to have it:

Does Apple's HTC Patents Settlement Doom The Samsung Case?

A little piece of legal finagling that could have some very interesting results. Apple has, as we know, settled with HTC over patents. And reached a general patent cross licensing agreement. Yet Apple, in the Samsung cases, seems to be saying that there are certain patents that it would never license. For getting mere money for them would never be enough. It’s on that that the potential Samsung product bans rest. For judges, if money’s a good enough compensation, prefer not to ban products.

All of which makes which patents Apple did license to HTC most interesting:

Samsung Electronics Co. (005930) asked a court to force Apple Inc. (AAPL) to turn over a copy of its settlement with HTC Corp. (2498), saying it’s “highly relevant” to Apple’s request for an order blocking sales of Samsung smartphones.
It’s “almost certain” that Apple’s settlement with HTC covers some of the patents at issue in its dispute with Samsung, according to a filing yesterday by the Suwon, South Korea-based company in federal court in San Jose, California. The agreement may undermine Apple’s claim that Samsung’s patent infringement can’t be resolved with license payments, according to the filing.

“Apple’s apparent willingness to license these patents supports Samsung’s argument that Apple cannot show irreparable harm because monetary damages are adequate,” Samsung said in the filing.

That *is* interesting, don't you agree?

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