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Judge Koh's Order in Apple v Samsung: No Stay on Damages Retrial, Unless... ~pj
Tuesday, April 30 2013 @ 04:42 PM EDT

Judge Lucy Koh has reached a decision [PDF] on going forward on the retrial on damages in Apple v. Samsung. Trial is set now for November 12th, on damages only, same Daubert rulings, motions in limine, discovery disputes, and evidentiary objections ruled on the same as the first trial, meaning if she made mistakes in the first trial, they'll be repeated in the retrial. "The parties may not relitigate these issues," she writes. So it's all for the appeal court to figure out. She isn't interested in reviewing all that. So if the appeals court orders a third trial, that's the way it will have to be. She wants to keep the damages retrial short and sweet and limited to just one issue, and then send it on its way to appeal, so no new theories and no new fact discovery. There is a schedule for expert discovery. The jury will be 8 people, with the parties' given three peremptory challenges each. Apple asked for the very same jury instructions, but she says they will get together on October 17th to discuss "how to present infringement and validity findings" to the new jury. Other than that, she is silent on that point.

There is one proviso. If the USPTO does not reopen the reexaminations on the two Apple patents that so far it has found invalid, then Samsung can submit a new motion asking for a stay, but that's only meaningful if the USPTO acts faster than the trial. If not, the damages issues will include the currently invalided patents. No, I can't explain the logic. I'm like Alice in WonderLand watching this.

It's mostly tilting Apple's way at the moment, with a Hail Mary pass possible for Samsung, if certain milestones at the USPTO happen quickly enough. As I've told you many times, US patent law favors patent holders, not defendants. That's one reason trolls can do what they do, bully victims into paying up rather than risking the uncertain outcomes of expensive trials that can illogically go against you even when the trial centers on stupid patents that shouldn't have issued in the first place, because once issued there is a presumption the patent is valid. Even if you win at trial and the patent is invalidated or the jury decides you didn't infringe, nobody pays you back all the millions you've spent defending yourself. Your US patent law at work. How do you like it?

The order:

04/29/2013 - 2316 - CASE MANAGEMENT ORDER AND ORDER by Judge Lucy H. Koh denying 2281 Motion for Entry of Judgment under Rule 54(b); denying 2281 Motion to Stay; granting in part and denying in part 2306 Motion for Reconsideration (lhklc3, COURT STAFF) (Filed on 4/29/2013) (Entered: 04/29/2013)

Here's the detail on the possibility of a stay:
Samsung may renew its motion for a stay of the new trial on damages as to the ’381 patent if the USPTO does not re-open the prosecution of the ’381 reexamination following Apple’s response to the final office action finding claim 19 of the ’381 patent invalid. Any such motion, and any opposition to such motion, may not exceed three (3) pages in length. The parties shall contact Ms. Parker Brown for a hearing date. The response to any such motion is due ten days after the filing of a motion.

Similarly, if the USPTO issues a final office action finding claim 8 of the ’915 patent invalid, and does not re-open the prosecution of the ’915 reexamination following Apple’s response to the final office action, Samsung may re-new its motion for a stay of the new trial on damages as to the ’915 patent. Such a motion will be subject to the same limitations and procedures as set forth above.

I think, from my reading, this means that Samsung gets to ask again for a stay if the USPTO refuses to reopen the reexam of either patent after a final order and the Apple response is considered. The '915 patent isn't as far along as the '381, but the '381 is a biggie, so if it gets shut down soon, no doubt Samsung will file a new motion for a stay.

I guess she means that then a stay to wait for all the appeals to go through the courts would make some sense. Right now, she thinks it's best to pretend it's not happening, that the USPTO didn't issue a final action of invalidation, because there's miles to go before this patent sleeps, if it does, in eternal rest. But actually, that's not true. The '381 patent already has a final office action. Apple gets to respond, and then either the USPTO reopens or they don't. Maybe she is calculating that this will happen prior to November 12th. But why gamble on unfairness?

Because this is how true horribles like the RIM case happen, where a company is pressured into paying for invalid patents, and this order makes it very possible the same thing will happen to Samsung, if the USPTO doesn't get a move on, and I'd be very surprised if Apple helps it to speed up. If I was Apple and I had no ethical core, that's what I'd do. Happily, I'm not Apple, and I find the whole process we are watching a very fine example of why US patent law is destroying tech. That's the polite description of my feelings about US patent law.

Here's the one issue the judge imagines the trial will be about:

The Court GRANTED Apple’s request to substitute a new damages expert for Terry Musika, who passed away in December 2012, but DENIED the parties’ requests for supplemental fact discovery. The Court ORDERED that the new trial on damages will be extremely limited. The sole purpose of the trial is to correct the erroneous notice dates. The Court will not permit the parties to expand the scope of the damages trial by relying upon: (1) new sales data, including any sales after June 30, 2013; (2) new products; and (3) new methodologies or theories. Consequently, Apple’s new damages expert may not include different methodologies in his or her expert report, and may not draw upon new data. Per the parties’ discussion, Apple has agreed to replace Mr. Musika, who was a CPA, with another CPA.
As you can see, it's all being done based on what happened at the hearing, and we weren't there, so we have no idea why she is ruling as she is, but in 90 days, when the transcript is made public, we'll find out.

This poor judge keeps trying to make these high-powered patent lawyers act like normal patent lawyers as she issues "strict" orders to keep it simple, orders that she ends up not sticking to in the end at least some of the time, so I'd take it all with a grain of salt. I'm sure the lawyers are. If I know this level of lawyering, they already have Plan B strategies in the wings. I mean, what are the odds that the parties will agree on any of this that she is ordering?

Each side shall be limited to one motion to strike, which may not exceed seven (7) pages in length. Each side’s opposition shall not exceed seven (7) pages in length. Each side’s reply shall not exceed four (4) pages in length. The parties shall meet and confer and stipulate to a proposed briefing schedule regarding any potential motions to strike. The briefing on these motions must be completed at least three weeks prior to the hearing on the motions.

The parties shall also meet and confer and stipulate to a proposed briefing schedule regarding any motion filed by Samsung, pursuant to Rule 702 of the Federal Rules of Evidence, regarding the qualifications of Apple’s new expert. The briefing on this motion must be completed at least three weeks prior to the hearing on this motion. Samsung’s Rule 702 motion, if filed, shall not exceed four (4) pages in length. Apple’s response shall not exceed (4) pages in length. There shall be no reply.

The parties shall also meet and confer regarding how to present information regarding infringement and validity to the jury.

I'm guessing absolutely none of it, judging by the history of this litigation. I mean, remember the "joint" case management filing? These two can't agree on anything at all. And if you carefully compare what each asked for with what she decided, neither side got everything, but Apple got a lot more the way it wanted it to be than Samsung did. If that surprises you, you must be new around here.

Here is the order, as text:

UNITED STATES DISTRICT
COURT NORTHERN DISTRICT OF CALIFORNIA
SAN JOSE DIVISION

_________

APPLE INC., a California corporation,

Plaintiff,

v.

SAMSUNG ELECTRONICS CO., LTD., A
Korean business entity; SAMSUNG
ELECTRONICS AMERICA, INC., a New York
corporation; SAMSUNG
TELECOMMUNICATIONS AMERICA, LLC,

a Delaware limited liability company,

Defendants.

_____________

Case No.: 11-CV-01846-LHK

CASE MANAGEMENT ORDER

______________

Clerk: Martha Brown
Reporter: Lee-Anne Shortridge

Plaintiff Attorneys: Michael Jacobs, Erik Olson, Nathaniel Bryan Sabri, William Lee, Mark Selwyn, Lauren Fletcher
Defense Attorneys: Kathleen Sullivan, Victoria Maroulis, William Price, Scott Kidman, and Michael Zeller

A case management conference was held on April 29, 2013. A further case management conference is set for August 21, 2013, at 2:00 p.m.

MOTION RULINGS:

At the case management conference on April 29, 2013, the Court made the following rulings on the record:

  • For the reasons stated on the record, the Court DENIED Samsung’s Motion for Entry of Partial Judgment Pursuant to Rule 54(b) as to the 14 accused products for which the Court upheld the jury award and Samsung’s counterclaims, and for a stay pending appeal.

1

  • For the reasons stated on the record, the Court DENIED without prejudice Samsung’s Request for a Stay pending reexamination of the’381 and ’915 patents at issue in the new damages trial.

    • Samsung may renew its motion for a stay of the new trial on damages as to the ’381 patent if the USPTO does not re-open the prosecution of the ’381 reexamination following Apple’s response to the final office action finding claim 19 of the ’381 patent invalid. Any such motion, and any opposition to such motion, may not exceed three (3) pages in length. The parties shall contact Ms. Parker Brown for a hearing date. The response to any such motion is due ten days after the filing of a motion.

    • Similarly, if the USPTO issues a final office action finding claim 8 of the ’915 patent invalid, and does not re-open the prosecution of the ’915 reexamination following Apple’s response to the final office action, Samsung may re-new its motion for a stay of the new trial on damages as to the ’915 patent. Such a motion will be subject to the same limitations and procedures as set forth above.

  • For the reasons stated on the record, the Court GRANTED-IN-PART and DENIED-IN- PART Apple’s Conditional Motion for Reconsideration of Order Granting New Damages Trial on Galaxy S II AT&T and Infuse 4G.

    • The Court reinstates the jury award of $40,494,356.00 for the Galaxy S II AT&T. Accordingly, the Galaxy SII AT&T will not be included in the new trial on damages.

    • The Court does not reinstate the jury award of $44,792,974.00 for the Infuse 4G. The Infuse 4G will be included in the new trial on damages. The parties may not introduce any data regarding Infuse 4G sales that occurred prior to May 15, 2011.
  • For the reasons stated on the record, the Court REJECTED Samsung’s argument that the Seventh Amendment requires a new trial on both damages and liability issues.

  • For the reasons stated on the record, the Court DENIED Apple’s request for the Court to determine the amount of prejudgment interest or supplemental damages prior to resolution of the appeals in this case.

TRIAL RULINGS:

  • The Court ORDERED that the new trial on damages will take place on November 12, 13, 14, 15, and 18, 2013. Trial will last daily from 9:00 a.m. to noon, and 1:00 p.m. to 4:30 p.m. The Court will empanel 8 jurors. Each side may exercise up to 3 peremptory challenges.

  • The Court’s prior rulings on the parties’ Daubert motions, motions in limine, discovery disputes, and evidentiary objections will remain in effect as law of the case. The parties may not relitigate these issues.

2

  • The Court GRANTED Apple’s request to substitute a new damages expert for Terry Musika, who passed away in December 2012, but DENIED the parties’ requests for supplemental fact discovery. The Court ORDERED that the new trial on damages will be extremely limited. The sole purpose of the trial is to correct the erroneous notice dates. The Court will not permit the parties to expand the scope of the damages trial by relying upon: (1) new sales data, including any sales after June 30, 2013; (2) new products; and (3) new methodologies or theories. Consequently, Apple’s new damages expert may not include different methodologies in his or her expert report, and may not draw upon new data. Per the parties’ discussion, Apple has agreed to replace Mr. Musika, who was a CPA, with another CPA.

  • Each side shall be limited to one motion to strike, which may not exceed seven (7) pages in length. Each side’s opposition shall not exceed seven (7) pages in length. Each side’s reply shall not exceed four (4) pages in length. The parties shall meet and confer and stipulate to a proposed briefing schedule regarding any potential motions to strike. The briefing on these motions must be completed at least three weeks prior to the hearing on the motions.

  • The parties shall also meet and confer and stipulate to a proposed briefing schedule regarding any motion filed by Samsung, pursuant to Rule 702 of the Federal Rules of Evidence, regarding the qualifications of Apple’s new expert. The briefing on this motion must be completed at least three weeks prior to the hearing on this motion. Samsung’s Rule 702 motion, if filed, shall not exceed four (4) pages in length. Apple’s response shall not exceed (4) pages in length. There shall be no reply.

  • The parties shall also meet and confer regarding how to present information regarding infringement and validity to the jury.

The following pretrial schedule was set:

May 13, 2013 Apple identifies its substitute damages expert
June 24, 2013 Apple serves supplemental expert report on damages
July 26, 2013 Samsung serves rebuttal expert report on damages
August 23, 2013 Completion of expert discovery
October 10, 2013, at 1:30 p.m. Hearing on Samsung’s FRE 702 motion, if filed, and the
motions to strike, if any
October 17, 2013, at 1:30 p.m. Pretrial Conference (including discussion of how to present
infringement and validity findings to new jury)
November 12, 2012, at 9:00 a.m. Jury Trial

IT IS SO ORDERED.

Dated: April 29, 2013

[signature]
LUCY H. KOH
United States District Judge

3


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