A version of this article originally appeared in our San Francisco affiliate, The Recorder.
(Editor’s Note: This article has been updated with a statement by Samsung lawyer John Quinn.)
The $1.05 billion verdict that Apple Inc. and its lawyers at Morrison & Foerster and Wilmer Cutler Pickering Hale and Dorr obtained Friday against Samsung could end up as the largest patent verdict in history. MoFo’s team was led by Harold McElhinny, and Wilmer’s team was led by William Lee and Mark Selwyn.
But as the Litigation Daily previously noted, enormous patent verdicts have rarely survived intact. For instance, a record-setting $1.67 billion verdict that Johnson & Johnson’s Centocor unit won against Abbott Laboratories in 2009 was wiped out two years later when the Federal Circuit found that the patent in question was invalid.
Another big question on the mind of a couple of patent experts who’ve followed the case is whether U.S. District Judge Lucy Koh will issue a permanent injunction against Samsung, and if so how severe it will be.
Professors Mark Lemley of Stanford Law School and Brian Love of Santa Clara University School of Law see a permanent injunction as likely. “Keep in mind, a preliminary injunction is in place,” Lemley said of Koh’s order blocking U.S. sales of Samsung’s Galaxy 10.1 tablet. “It would be quite surprising if she didn’t enter an injunction at all. The question is how broad an injunction” — in particular, whether it will cover only the Samsung products identified by Apple, or current and future similar products.
Love said he would expect a permanent injunction and “probably more likely than not” an order by the U.S. Court of Appeals for the Federal Circuit staying it pending an appeal.
Koh had urged both sides to settle before the jury deliberated. “I see risks here for both sides,” she told the parties.
The nine-member jury sitting in San Jose rendered a verdict after just two-and-a-half days of deliberations. The jury found that Samsung infringed most of the patents Apple sued over, and its trade dress on the iPhone and iPad, and did so willfully. It completely rejected Samsung’s cross claims for infringement. Quinn Emanuel Urquhart & Sullivan represented Samsung. You can look at the verdict form here.
“Given the willful infringement, it’s more likely than not the damages award will increase, up to three times” the jury’s award, Love said, noting that will be within Koh’s discretion. “It’s not an across-the-board victory for Apple,” Love said, “but it’s very close.”
Samsung’s lawyers at Quinn Emanuel will likely argue that the verdict must be overturned because Koh excluded crucial evidence, including a slide that showed a Samsung mobile phone design that was made before Apple introduced the iPhone. Koh threatened to sanction name partner John Quinn for his vehement protestations, and for subsequently issuing a press release that highlighted the excluded evidence.
Quinn had more to say about the verdict in this statement released Friday: “This is by no means the final word in this case, or in the battle being waged in courts and tribunals around the world. Patent law should not be twisted so as to give one company a monopoly over the shape of smartphones, or the technology that is being improved every day by innovation at Samsung and other companies. The purpose of patent law is to protect innovation, not stifle it. Consumers know what they are buying when they purchase smartphones. There was no deception here. This decision should not be allowed to stand because it would discourage innovation and limit the rights of consumers to make choices for themselves. We will move immediately to file post-verdict motions to overturn this decision in this court and, if we are not successful, we will appeal this decision to the Court of Appeals. We will fight, in this court, in the Court of Appeals, in the Supreme Court and in tribunals around the world to protect Samsung’s right to compete and the rights of consumers to real choice in the marketplace. That battle is far from over.”
Apple has a second suit pending against Samsung. Koh currently has trial in that case set for March 2014.