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Apple Files Opposition to Samsung's Motion for a New Trial on '381 Patent ~pj
Tuesday, July 23 2013 @ 02:05 PM EDT

Apple is, of course, opposed to Samsung's motion for a new trial regarding Apple's '381 patent, and it has now filed its opposition [PDF] with the court. It's the public, redacted version. Samsung asked for the new trial based on what it says is newly discovered evidence, namely his motion is based on "newly discovered evidence"after "Samsung learned from PTO records made publicly available on June 12, 2013, that Apple had successfully advocated a new claim construction of the only asserted claim – Claim 19 – and significantly narrowed its scope in connection with reexamination proceedings before the PTO to avoid having this claim rejected ..."

Apple however says it has done no such thing. Or at least, it hasn't done so "unambiguously". Hmm. "...Apple’s reexamination statements are completely consistent with the position Apple has taken throughout this case," Apple argues. Samsung's expert has mischaracterized what Apple said to the USPTO, it says:

Apple’s statements merely made explicit what was already implicit in the patent—that a centering function alone without the recited instructions to translate “until the area beyond the edge of the electronic document is no longer displayed” cannot meet the requirements of claim 19.
Even if this were newly discovered, it wouldn't change the outcome at trial. "The Van Dam Declaration ignores the unrebutted evidence at trial that Samsung’s products practice all the limitations of claim 19, rather than merely 're-centering' documents." And the cherry on top is the argument that it's too late for Samsung to get a do-over. Samsung's motion is time-barred. You only get 28 days after judgment to ask for a new trial, even if there is newly discovered evidence, Apple writes.

Here are all the filings since we last visited Apple v. Samsung:
2340 - Filed & Entered: 07/12/2013
Declaration of James Shin in Support of [2326] Administrative Motion to File Under Seal Samsung's Administrative Motion for Relief from April 29, 2013 Case Management Order filed by Samsung Electronics America, Inc.(a New York corporation), Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC. (Related document(s)[2326]) (Maroulis, Victoria) (Filed on 7/12/2013)

2341 - Filed & Entered: 07/12/2013
Declaration of James Shin in Support of [2332] Administrative Motion to File Under Seal Apples Motion To Seal Regarding Apples Opposition To Samsungs Administrative Motion For Relief From April 29, 2013, Case Management Order Declaration of James Shin in Support of Apple's Administrative Motion to File Documents Under Seal filed bySamsung Electronics America, Inc.(a New York corporation), Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC. (Related document(s)[2332]) (Maroulis, Victoria) (Filed on 7/12/2013)

2342 - Filed & Entered: 07/15/2013
Declaration of Cyndi Wheeler in Support of [2333] Administrative Motion to File Under Seal Exhibit 1 to Samsung's Motion for Leave to File Reply in Support of Samsung's Administrative Motion for Relief from April 29, 2013 Case Management Order, [2338] Administrative Motion to File Under Seal Samsung's Motion for New Trial Regarding '381 Patent Pursuant to Fed. R. Civ. P. 59 Based on Newly Discovered Evidence or, Alternatively, for Entry of Judgment on Liability filed byApple Inc.. (Related document(s)[2333], [2338]) (Olson, Erik) (Filed on 7/15/2013)

2343 - Filed & Entered: 07/17/2013
MOTION Apple Inc.s Motion To Modify April 29, 2013, Case Management Order Excluding Evidence Of Certain Infuse 4G Sales Or, In The Alternative, For Leave To Seek Reconsideration Of That Order, And To Clarify That The Order Applied Solely To The Infuse 4G filed by Apple Inc.. Motion Hearing set for 8/21/2013 02:00 PM before Hon. Lucy H. Koh. Responses due by 7/31/2013. Replies due by 8/7/2013. (Attachments: # (1) Proposed Order)(McElhinny, Harold) (Filed on 7/17/2013)

2344 - Filed & Entered: 07/17/2013 Administrative Motion to File Under Seal Docket Text: Administrative Motion to File Under Seal Apples Motion To Seal Regarding Apple Inc.s Motion To Modify April 29, 2013, Case Management Order Excluding Evidence Of Certain Infuse 4G Sales Or, In The Alternative, For Leave To Seek Reconsideration Of That Order, And To Clarify That The Order Applied Solely To The Infuse 4G filed by Apple Inc.. (Attachments: # (1) Declaration Of Erik J. Olson In Support Of Apple Inc.s Motion To Modify April 29, 2013, # (2) Exhibit A, # (3) Exhibit B, # (4) Exhibit C, # (5) Exhibit D [PJ: Exhibits B-D are sealed.])(McElhinny, Harold) (Filed on 7/17/2013)

2345 - Filed & Entered: 07/22/2013
Administrative Motion to File Under Seal Apples Motion To Seal Regarding Apples Opposition To Samsungs Motion For New Trial Regarding 381 Patent Pursuant To Rule 59 Based On Newly Discovered Evidence Or, Alternatively, For Entry Of Judgment On Liability filed by Apple Inc.. (Attachments: # (1) Apples Opposition To Samsungs Motion For New Trial Regarding 381 Patent Pursuant To Rule 59 Based On Newly Discovered Evidence Or, Alternatively, For Entry Of Judgment On Liability, # (2) Declaration Of Ravin Balakrishnan, Ph.D. In Support Of Apples Opposition To Samsungs Motion For New Trial Regarding 381 Patent, # (3) Exhibit A, # (4) Exhibit B)(McElhinny, Harold) (Filed on 7/22/2013)

As you see, the final exhibit to #2345 was filed manually, so if you attend the next hearing, please stop by the clerk's office at the courthouse and ask for that document from the file, and then make a copy. They should have a copier right there at the courthouse you can use. I'll reimburse you, of course.

Here is the Table of Contents, which gives you the overview:

TABLE OF CONTENTS

INTRODUCTION .................................. 1

ARGUMENT ....................................... 3

I. SAMSUNG’S MOTION BASED ON PURPORTED “NEWLY DISCOVERED
EVIDENCE” SHOULD BE DENIED. ........................ 3

A. Samsung’s Motion Is Time Barred............................ 3

B. Samsung’s Motion Fails On The Merits. .......................... 3

1. Apple’s Reexamination Statements Did Not Exist At The Time Of
Trial. ....................................... 4

2. Samsung Was Well Aware Of Apple’s Position Throughout Pretrial
Proceedings And The Trial. ....................... 6

3. Apple’s Reexamination Statements Would Have Made No
Difference In The Outcome. ............................. 8

a. Samsung’s New Non-Infringement Arguments Could Have
Been Made At Trial, But Were Waived, And They Are
Wrong In Any Event............. 8

b. Apple’s Reexamination Statements Were Not An
Unambiguous Disclaimer Of Claim Scope................. 14

II. SAMSUNG’S ALTERNATIVE MOTION FOR ENTRY OF A SECOND
JUDGMENT ON LIABILITY SHOULD BE DENIED.......................... 16

CONCLUSION ................................... 20

And here's the introduction, where Apple lists what its main arguments are:

INTRODUCTION

The Court should reject Samsung’s latest attempt to delay the retrial on damages. This time, Samsung has filed a procedurally improper Rule 59 motion. Samsung’s motion is far too late—Samsung’s deadline for filing was 28 days after entry of judgment, not ten months later.

In any event, Samsung’s motion is wrong on the merits. First, to grant a new trial based on “newly discovered evidence,” the evidence must have been in existence at the time of trial but not discoverable through the exercise of reasonable diligence. The evidence to which Samsung points—Apple’s statements during reexamination of the ’381 patent—did not exist until May 2013, some nine months after trial. This fact is a sufficient basis on which to deny Samsung’s motion.

Second, Apple’s reexamination statements are completely consistent with the position Apple has taken throughout this case. For example, the rebuttal report of Apple’s expert, Dr. Ravin Balakrishnan, distinguished the Lira prior art reference before trial in the same way that Apple later distinguished it during reexamination. Thus, Samsung had actual notice of Apple’s supposedly new position before trial and during trial.

Third, this purportedly new evidence would have made no difference. Samsung’s motion is a thinly-disguised attempt to make new non-infringement arguments that it could have made at trial but chose not to present. This Court should not give Samsung a do-over. In any event, Samsung’s new non-infringement arguments are wrong. The Van Dam Declaration ignores the unrebutted evidence at trial that Samsung’s products practice all the limitations of claim 19, rather than merely “re-centering” documents. The new declaration fails to discuss either the behavior of the accused products or the source code admitted into evidence that proves this point. In short, even if Samsung’s motion were timely and even if the Court “re-construed” claim 19 as Samsung proposes, Samsung’s accused products would still infringe that claim.

Finally, Apple’s statements fall far short of an unambiguous disclaimer that could have narrowed the scope of claim 19. Indeed, rather than analyzing what Apple actually said about claim 19 during reexamination, Samsung has its technical expert substantially re-characterize or mischaracterize Apple’s statements and then argue that his recharacterization was not proved at trial. The statements Apple actually made about claim 19 do not clearly and unambiguously narrow the scope of that claim as construed by the Court or applied by Apple at trial.

Nor should the Court grant Samsung’s “alternative,” completely unrelated, request to enter another judgment on liability and stay the proceedings pending an appeal under 28 U.S.C. § 1292(c). Samsung’s opportunity for a Section 1292(c) appeal has come and gone, for two independent reasons. First, there was no bifurcation of liability and damages here. Rather, both liability and damages were tried together, so Section 1292(c) does not even apply. Indeed, it is noteworthy that Samsung has never before asserted that Section 1292(c) applies here, even though the Federal Circuit’s Bosch decision makes clear that it creates no new law. Robert Bosch, LLC v. Pylon Mfg. Corp., No. 2011-1363, 2013 WL 2664281, at *6 (Fed. Cir. June 14, 2013) (en banc). Second, even if Section 1292(c) did apply, the time to take an appeal of liability has passed and cannot be revived. After trial on liability and damages, this Court issued judgment on August 24, 2012. The Court then resolved all post-judgment motions as to liability on January 29, 2013. At that point, only a portion of the damages issues remained unresolved. So even if a non-bifurcated trial could result in a judgment that is “final except for an accounting” under 28 U.S.C. § 1292(c)(2), the time to appeal was within 30 days of January 29. Samsung did not do so. That 30-day deadline is jurisdictional and cannot now be extended. Samsung is trying to restart the clock by asking this Court to issue another liability judgment. But under well-settled law, even if the Court were to do so, it would not restart the clock.

Both of Samsung’s motions should be denied. The parties have already invested immense effort preparing for the upcoming damages trial. Apple’s expert report has been served and Samsung will serve its report in four days, on July 26th. Extensive judicial resources have been expended. This case is within striking distance of a true final judgment. The Court should proceed with the trial.

That last part means Apple thought this case was home free, and ever since the trial, its win keeps getting smaller and smaller, and the appeal has yet to come on whether it even should have won. So the last thing in the world it wants to do is go through another trial, particularly one that could result in a reduction in damages and a shadow over the '381 patent. So it's pulling out all stops.

Here's the part about Apple's construction of claim 19 being consistent:

1. Apple’s Reexamination Statements Did Not Exist At The Time Of Trial.

Samsung asserts that on May 9 and 13, 2013, during reexamination, Apple adopted an entirely new position on the construction of claim 19, and that this “newly discovered evidence” justifies a new trial. (Dkt. No. 2338-3 at 5-15.) Samsung’s assertion is untrue, but in any event, it is well established that any purported newly discovered evidence must have existed at the time of trial. ... Samsung’s motion should thus be denied on the merits for the straightforward reason that the evidence on which it relies did not exist at the time of trial....

Apple’s arguments and opinion testimony in this lawsuit on the validity of claim 19, and on why prior art references were not anticipating, are entirely consistent with Apple’s later arguments in reexamination.

A centerpiece of Apple’s position in its pre-trial expert reports was that claim 19 required a device with instructions to take action “in response to the edge of the document being reached” and upon the user’s lifting a finger from the screen, to translate the document in a second direction “until the area beyond the edge was no longer displayed.” (Balakrishnan Rebuttal Report ¶ 87.) That is, merely centering or re-centering a document did not suffice.

For example, in his Rebuttal Expert Report on the Validity of the ’381 Patent, Dr. Balakrishnan responded to Dr. Van Dam’s pretrial opinions that the Lira, LaunchTile, and Tablecloth references anticipated claim 19. Dr. Balakrishnan opined that these references did not disclose “edge-responsive functionality” as required by the ’381 patent, but instead could be manipulated to “simulate supposed edge-responsive behavior, yet it is clear that these references are in fact merely re-centering items.” (Id. ¶¶ 53-55 (emphasis added).) With respect to Lira specifically, Dr. Balakrishnan opined: “Like LaunchTile, Lira discloses a recentering functionality and a method for realigning or reformatting webpage content so that it can fit more easily into a small screen . . . . It does not disclose what will or should happen if and when the user tries to scroll past the edge of the page.” (Id. ¶ 87.) Dr. Balakrishnan opined that Lira’s “centering functionality” did not disclose the following limitations: “in response to an edge of a document being reached . . . displaying an area beyond the edge of the document” and “in response to detecting that the object is no longer on or near the touch screen display, translating the electronic document in a second direction until the area beyond the edge of the document is no longer displayed to display a fourth portion of the electronic document, wherein the fourth portion is different from the first portion.” (Id.)

Apple’s position was consistent at trial. Samsung elected not even to assert Lira as invalidating prior art at trial. But Dr. Van Dam did testify for Samsung that the similar LaunchTile reference anticipated claim 19. Dr. Balakrishnan rebutted Dr. Van Dam’s opinion, testifying that LaunchTile did not embody the limitation “in response to the edge of the document being reached” because it was “really a recentering algorithm. It doesn’t actually check that it reached the edge of any document.” (Trial Tr. 3635:13-18.)

Samsung’s assertion that before the reexamination proceedings Apple did not distinguish prior art based on the distinction between mere “recentering” and “edge detection” is untenable. Contrary to Samsung’s assertion that “Apple advocated an entirely new and far narrower interpretation of Claim 19" in reexamination (Dkt. No. 2338-3 at 3), Apple's position is consistent throughout, and Samsung was well aware of it....

Apple introduced additional source code into evidence as PX31. That evidence demonstrated that all the Samsung accused products detected and translated documents based upon the "edge" of the document being detected, without necessarily centering or re-centering the underlying electronic document....

But even if Samsung had pursued Dr. Van Dam’s new theory at trial, it would not have prevailed. That new theory is neither responsive to Apple’s infringement argument nor correct. Apple demonstrated at trial that documents that are zoomed in or are otherwise larger than the screen on Samsung’s Gallery, Browser, and Contacts applications do not “re-center” or show the original image when pulled beyond the edge and released. Instead, in Samsung’s accused products, these zoomed-in or large documents translate “until the area beyond the edge is no longer displayed” and a “fourth portion” of the document “different from the first portion” is displayed. (Trial Tr. 1741-1754; PX64.) And it is these documents that present the most serious potential for the “Desert Fog” or “frozen screen” problems that the ’381 invention was designed to solve and that benefit the most from that invention.

Dr. Van Dam’s new declaration does not even address, let alone refute, Apple’s infringement claim relating to the Gallery application. Instead, he limits his discussion and his one video demonstration to documents that are not zoomed in and that are the same size as or smaller than the screen. This completely ignores the undisputed evidence the jurors saw with their own eyes, namely that the Samsung devices did not “center” or “re-center” a zoomed-in document but instead translated the document in response to “edge detection.” (See, e.g., PX64 and Trial Tr. 1741-1754.)...

Even assuming there is some special case in which the manipulation of an unzoomed image smaller than the screen does not practice all of the claim 19 limitations, that would not immunize behavior and instructions that plainly do infringe. In that respect, Samsung’s new argument is just as flawed as its failed “hold still” defense. The ability to create “hold still” behavior did not prevent the Samsung devices from executing instructions that infringed claim 19 or erase those infringing instructions from Samsung’s code. So too with Samsung’s new theory. In any event, Samsung elected not to make this argument at trial. Samsung is not entitled to a new trial merely because its tactical choices were unsuccessful and it would like to try a different non-infringement argument now.

Once again, we, the public, are hampered by not having the entire document. Some of the most important sections, like some of what the experts said and wrote, are redacted, which once again makes it hard to know who is in the right. What is clear is that there is a real dispute, and Samsung will have the opportunity to respond to all of this next.

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