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The information on Groklaw is not intended to constitute legal advice. While Mark is a lawyer and he has asked other lawyers and law students to contribute articles, all of these articles are offered to help educate, not to provide specific legal advice. They are not your lawyers.

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Off topic discussions | 83 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections here please
Authored by: jesse on Tuesday, April 23 2013 @ 01:47 PM EDT
Thank you.

[ Reply to This | # ]

News Pick discussions
Authored by: jesse on Tuesday, April 23 2013 @ 01:48 PM EDT
Thank you.

[ Reply to This | # ]

COMES document thread
Authored by: jesse on Tuesday, April 23 2013 @ 01:48 PM EDT
thank you.

[ Reply to This | # ]

Off topic discussions
Authored by: jesse on Tuesday, April 23 2013 @ 01:49 PM EDT
Thank you.

[ Reply to This | # ]

Playing Chess while negotiating rule changes on the fly...
Authored by: Anonymous on Tuesday, April 23 2013 @ 06:55 PM EDT

At least that's what it looks like to me.

Wayne
http://madhatter.ca

[ Reply to This | # ]

  • Playing Chess? - Authored by: Anonymous on Wednesday, April 24 2013 @ 04:23 PM EDT
A wizard game
Authored by: NigelWhitley on Wednesday, April 24 2013 @ 06:49 AM EDT
Apple's proposal appears to be a classic piece of legerdemain. No-one can
dispute that the unfortunate death of their damages expert creates the potential
need for a replacement expert, certainly if the previous testimony is to be
challenged anew by Samsung. IANAL so I am unclear about alternatives in this
scenario.

It appears, from the brief, that the new expert testimony can be justified to
prevent "manifest injustice". Since, under Apple's proposal, no new
expert testimony is to be sought from Samsung, it is unclear to me how it would
be manifest injustice if no new expert testimony is sought from Apple. I assume
from the request that the late Mr Musika's evidence can still be used, just as
the unaltered testimony from the other witnesses can be used, otherwise I would
expect some comment to the contrary in Apple's submission (e.g. "we would
be severely prejudiced by being unable to include the opinion of our own damages
expert").

Apple appear to be suggesting that Samsung need no new witnesses or discovery in
order to present their case to the court. The need for new damages testimony
appears to be triggered by Apple's other request for additional financial
information from Samsung and their desire to comment upon it. This is further
supported by Apple's insistence that any rebuttal be solely limited to the
revisions in the report (which IMHO is only required because of the newly
requested financial information). This allows the new information to be
included, with Apple able to cherry-pick which parts it wants to comment on, but
leaves Samsung unable to highlight any part which Apple "overlooks". I
am puzzled as to why it would be manifest injustice if Apple were not to be
permitted to gain such an advantage.

It's particularly perplexing that Apple should have placed so much emphasis on
this aspect of the proposed new trial. Without this, Apple's proposal is
(IMHO,IANAL) to simply provide the evidence from the previous trial, adjusted to
meet the Court's subsequent rulings, with new opening and closing statements and
any motions arising. If they truly want an expeditious outcome, why complicate
it with this asymmetric request? Are they just paving their way for an appeal if
the request is denied?

Personally (and unsurprisingly) I find Samsung's position more persuasive :
enter partial judgement and submit appeal, wait until the appeals court has had
its say and then have a trial with what's left rather than risk a third trial
down the road. Apple's only justification for rejecting that approach (other
than, one presumes, justice delayed is justice denied) is that they want Samsung
to pay up right away : am I correct in stating that they get to keep their
damages money even if the patent is subsequently invalidated?

It seems to be the old story with software patent litigation - we have to ignore
the validity of the patents and pretend the USPTO is competent. Pay no attention
to that man behind the curtain. If only someone could throw a bucket of water
over software patents - it would be most satisfying to watch them "melting!
melting!".
-----------------------
Nigel Whitley

[ Reply to This | # ]

Can Apple and Samsung make Stipulations...
Authored by: Anonymous on Wednesday, April 24 2013 @ 08:31 AM EDT
Like say, Samsung can offer, "Hey. In the interest of time and fairness
over our alleged infringement of Apple's rounded corners, how bouts we go ahead
with the trial and whatever happens at trial happens at trial. However, if and
when the USPTO finalizes it's invalidation of these bogus patents, Apple must
agree to pay us back with interest (including legal fees)."

Think Apple would still be so interested in standing on their fools gold
patents? At what point will Apple realize that the island on which they are
standing is soon to be below sea level? I'm willing to bet they've worked
themselves into such a frenzy that they won't even see it until they are knee
deep.

This isn't about infringement, and Apple's argument isn't well done. It's
bogus. On the other hand, Samsung's argument is a plea for common sense and
fairness of the court.

This case has become the equivalent of a bully trying to use the court system to
hold Samsung down, so it can kick it and take it's lunch money.

This is becoming an increasingly sick, sick world. Shame on these people!

[ Reply to This | # ]

Patents and Portents and Lawsuits... Oh my!
Authored by: Anonymous on Wednesday, April 24 2013 @ 11:48 AM EDT
I wonder...

Let's say, for the sake of argument, that Apple gets their
damage $ award... Can't Samsung sue them when the patent
gets over-turned for extortion?

Perhaps damages in escrow (like Novell wanted) held until
the USPTO makes a final decree over the patents in question?
Monies to be released to the plaintiff if the patent is
judged valid, otherwise the defendant gets it back... with
interest? And, perhaps, a punitive award from the plaintiff
for mis-use of the legal system?

I have believed, for some time now, that a lot of problems
with the USA's legal system come from having outlawed
dueling over 200 years ago. I am also coming to believe
that the judicial system needs its own "bite" against
people-- and organizations-- gaming the system.
(Outsourcing patent persecution is "gaming the system";
While just barely within the letter of the law, they violate
the spirit of the law.)

It doesn't matter how "perfect" any system is-- legal,
technical, organizational-- they will always fail,
regardless of checks and balances, simply because,
somewhere, there is MEAT in the loop.

[ Reply to This | # ]

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