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Vanessa Blum covers California litigation for The Recorder, an American Lawyer affiliate.
If Chevrolet came out with a car today that looked exactly like the 1965 Ford Mustang, would that be acceptable because Ford no longer produces that particular model?
That's the scenario one Apple lawyer presented to U.S. District Judge Lucy Koh in San Jose on Thursday to explain why Apple wants to block the importation and sale of Samsung phones and tablet computers a jury found to infringe on discontinued models of Apple's iPhone and iPad.
Morrison & Foerster partner Michael Jacobs said the answer is no for a Mustang and no for an iPhone, because both products are "iconic" and continue to generate goodwill for the company that produced them.
"The 3G design is going to be linked to Apple for as far as the eye can see." Jacobs said.
That was one exchange from Thursday's post-trial showdown before Koh that featured two name partners from Quinn Emanuel Urquhart & Sullivan for Samsung, and the Morrison & Foerster and Wilmer Cutler Pickering Hale and Dorr IP litigators who won a $1.05 billion verdict for Apple.
Three months after a jury handed Apple Inc. the record verdict against Samsung Electronics Co., the companies' legal squadrons faced off in a three-hour debate over damages awards and injunctions.
The Quinn Emanuel lawyers asked Koh to overturn the Aug. 24 verdict and order a new trial. Meanwhile, Apple argued for increased financial penalties against Samsung and sweeping sales and import bans on the infringing Samsung devices.
John Quinn argued the jury's verdict should be voided because the panel's foreman failed to share relevant information during jury selection. When Koh asked prospective jurors to disclose lawsuits they had been involved in, Velvin Hogan did not reveal that he had been sued by his former employer, Seagate Technologies, a company with business ties to Samsung.Quinn insisted Hogan and other jurors should be brought before the court for questioning.
Koh didn't show her cards on that point.
If the verdict stands, Quinn partner Kathleen Sullivan said Koh should "lop off" more than $600 million calculated in error, including $58 million awarded to Apple in connection with Samsung's Galaxy Prevail smartphone.
Because the phone was not found to infringe on Apple's design patents, it was improper for the jury to award Apple a percent of Samsung's profits, Sullivan said.
"Its mathematically exact and it's legally unacceptable," Sullivan said. She added: "We should prevail on the Prevail."
Apple's team argued for caution. Harold McElhinny of MoFo told Koh not to step in the "trap" of dissecting the jury verdict and attempting to reconstruct the panel's analysis.
Apple is seeking supplemental damages of more than $500 million based on willful infringement and to account for Samsung's continued sale of some products.
Koh said she would issue rulings on a rolling basis but gave few hints of her thinking on the wide-ranging topics under discussion.As the hearing came to its close, Koh asked both sides when the case would end.
"I think it's time for global peace," Koh said. "I'm more than prepared to issue orders. You'll take this up on appeal, and we'll see what happens. But if there's anyway this court can facilitate some kind of resolution, I'd like to do that."
McElhinny said Koh should send a strong signal by enforcing the jury's decision and granting Apple's motion for injunctions. He called the jury's $1 billion verdict "a slap on the wrist."
"We see it differently," said another Samsung lawyer, Charles Verhoeven, who led the trial team.
Verhoeven said it was Apple that decided to launch "thermonuclear war" and to "compete through the courthouse instead of the marketplace."
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