SAN FRANCISCO — As the sequel to their blockbuster patent trial nears, Apple and Samsung are miles apart, even when it comes to the value of software patents.
Apple Inc. is expected to tell jurors when the latest trial kicks off in San Jose this week that Samsung Electronics Co. should pay about $2 billion for infringing its patented smartphone and tablet technology. Samsung will counter that Apple’s patents aren’t worth nearly that much—and neither are its own. The South Korean company is demanding only about $7 million for the pair of patents it accuses Apple of infringing.
The ideological split on damages adds a plot twist to a drama with a familiar feel and a well-known cast. But Samsung is changing the story it presents jurors in hopes of a surprise ending.
In addition to playing down the value of patents that represent isolated features of complex consumer products, Samsung seems ready to play up an opposing story of innovation by calling engineers from Google to discuss the development of the Android operating system used by Samsung.
Mark Lemley, a partner at Durie Tangri and a professor at Stanford Law School, said he suspects the new tactics are, at least in part, “a strategic effort by Samsung to make Apple look greedy.”
Embarking on their second patent case and third jury trial, the technology titans are trading familiar accusations of patent infringement and invalidity over later versions of their products, such as Apple’s iPhone 5 and Samsung’s Galaxy S3. Many Bay Area patent litigators say they remain riveted, both by the prospect of another billion-dollar verdict and the legal firepower on both sides.
For the latest trial, Samsung has once again turned to Quinn Emanuel Urquhart & Sullivan, with firm founder John Quinn and partner William Price leading the charge. As in 2012, William Lee and others at Wilmer Cutler Pickering Hale and Dorr will defend Apple against Samsung’s claims of infringement. Morrison & Foerster partners Harold McElhinny and Rachel Krevans will run Apple’s offensive case with help from Gibson, Dunn & Crutcher.
U.S. District Judge Lucy Koh, who made headlines in the first case with her outbursts at the parties’ legal teams, will again be tasked with corralling the legions of attorneys and keeping the trial moving. She forced Apple and Samsung to whittle down their claims for the latest trial and has not been shy about voicing the toll that their scorched-earth litigation takes on the courts.
“We are not an exclusive Apple v. Samsung court,” she reminded lawyers during the damages retrial.
Koh aggressively pushed the parties to resolve the litigation without another trial, leading the companies’ CEOs to personally attend a mediation session earlier this year. And many patent litigators are surprised Apple and Samsung haven’t hashed out a settlement, given the decisive victory for Apple in the first trial.
Their vastly different valuations of smartphone patents may have something to do with it, mused Lemley.
“The mere fact that there are almost three orders of magnitude between what Apple hopes to get out of the trial and what Samsung hopes to get may explain why they haven’t settled,” he said, adding, “Presumably, we’re looking to a third case, although those will also be for obsolete products by that time. I could imagine going on doing this for quite a while.”
The dispute centers on technology that Apple says make smartphones fun and easy to use.
Apple’s patents touch on features as well-known as the slide-to-unlock gesture and the autocorrect software that fixes typos. The patents also cover technology that allows users to search the Internet and their phones simultaneously, “quick links” that flag phone numbers in messages and the so-called background sync feature, which updates contacts.
Apple executives are expected to testify about the financial gamble that the company undertook to develop the iPhone and iPad. It’s a script that played well during the companies’ heavily documented 2012 trial, as well as their rematch over damages last fall. Although jury selection will likely weed out people with strong feelings about the cases, Samsung does not exactly begin the new trial with a clean slate, said Robin Feldman, director of the Institute for Innovation Law at UC-Hastings College of the Law.
“The first trial hangs like a shadow over the second one,” she said. “Jurors will be keenly aware that they have seen and heard this before.”
Although not a party to the lawsuit, Google will figure prominently in the trial. Most of the patents that Apple is asserting against Samsung cover technology that is central to Google’s Android operating system. Samsung’s witness list includes engineers from Google. They are expected to match Apple’s well-worn story of innovation with an account of how Google hatched the features of its Android operating system in Mountain View.
The pair of patents that Samsung is wielding against Apple cover videocalling and technology that allows users to organize their photographs in albums. The company acquired both patents after its litigation with Apple began.
Samsung was originally set to assert a few standard essential patents against Apple, but they have been dropped from the case. Apple had objected that Samsung’s use of the patents in the suit violated its obligation to license them on reasonable and nondiscriminatory terms. What’s more, standard essential patents, which comprise a significant chunk of Samsung’s patent portfolio, cannot be used to land a permanent injunction, meaning they pack less of a punch in litigation, patent lawyers say.
“It may be that Samsung doesn’t have as powerful a threat to retaliate against Apple as we might have expected,” Lemley said.
As before, the real prize that Apple seeks would come not from a jury but from Koh.
Apple has used its patent cases to try to win permanent injunctions that would knock Samsung products off the market or force a redesign. But Apple has been unable to persuade Koh to enter such a ban thus far. She rejected the company’s bid to crown its first trial victory with a permanent injunction earlier this year, even after the U.S. Court of Appeals for the Federal Circuit forced her to reconsider.
Koh ruled that Apple had failed to show a strong link between its patented features and consumer demand for Samsung’s infringing products. The order left Apple lawyers with a mandate to do a better job of meeting the so-called causal nexus standard the second time around, said Brian Love, an assistant professor at Santa Clara University School of Law. The standard, which has been fleshed out through the Apple-Samsung litigation, requires companies to demonstrate that patented features drive consumer demand for infringing products.
With that in mind, Apple’s upcoming case will feature expanded survey evidence on why consumers buy particular smartphones and how much of the demand can be traced back to specific patented features. But the bar to land a permanent injunction remains high, Love said.
“If you look at the first case as a predictor, it doesn’t look so great for Apple,” he said.
But Samsung has also retooled its case. The company’s modest damages request is consistent with its contention that narrow features do not shape consumers’ decisions to buy phones with thousands of components and may be aimed at Koh as much as the jury.
Even if Apple does ultimately win an injunction, there are practical questions about how much a ban would matter. By the time that Koh considered entering a permanent injunction earlier this year, the Samsung products at issue were already off the market. The snail’s pace of litigation is no match for the South Korean company’s rapid-fire product launches, IP litigators say.
By that measure, Samsung has done a reasonable job of combating Apple’s claims, though it has not prevailed in trial, Love said.
“Their ability to litigate these cases for years and years and not have any of their flagship products coming off the market means they’ve done a pretty good job of playing defense,” he said.
The cases are not a terrible economic proposition—Apple has landed about $930 million in damages thus far, and Samsung is still peddling its products to consumers. But perpetual patent litigation has diminishing returns, lawyers say.
“Apple has better ways of making money than filing serial lawsuits against Samsung,” Love said.
Contact the reporter at firstname.lastname@example.org.