Samsung, Apple patent dispute heads for retrial on damages

The retrial with eight jurors is now scheduled for March or April next year, Judge Lucy H. Koh of the U.S. District Court for the Northern District of California, San Jose division proposed Tuesday.

The judge indicated that she was acting on the mandate just received from the U.S. Court of Appeals for the Federal Circuit. The lawsuit has dragged in the district court since 2011 alongside another suit also for patent infringement.

"The instant retrial on damages will be the parties’ fourth jury trial before this Court, third jury trial in the instant case, and second damages retrial in the instant case," Koh wrote in a case management order.

The court had awarded Apple damages of US$930 million after a jury found that Samsung infringed Apple’s design and utility patents and diluted its trade dresses, which refer to the overall look and packaging of a product.

But on appeal, the Federal Circuit reversed the jury’s findings that the asserted trade dresses are protectable, and vacated the damages relating to trade dress dilution on certain products.

The appeals court decision impacted $382 million in damages and the new trial will now reassess the damages payable by Samsung for the patent infringements by five of its earlier products: the Fascinate, Galaxy S4G, Galaxy S Showcase, Mesmerize and Vibrant.

Judge Koh is trying to ensure that the trial does not deviate from its focus, stating that she will not allow substitution of damages experts unless in extraordinary circumstances, permit supplemental fact discovery, or let the parties expand the scope of the damages retrial. Koh has set aside seven days for the retrial, giving each side fixed time slots for opening statements, closing arguments and evidence.

The judge has, however, indicated that she may hear a separate motion from Apple which wants the court to order Samsung to pay $548 million in damages. These are damages relating to infringement of design and utility patents that were not vacated by the appeals court, which instead asked the district court to go ahead with a final judgment on this part of the damages.

Samsung is asking the court to declare invalid the claim of an Apple patent also known as the pinch-to-zoom patent, which figured in the lawsuit, or to stay proceedings.

The South Korean company points to a decision in December by the Patent Trial and Appeal Board of the U.S. Patent and Trademark Office that found claims of the Apple patent invalid, according to Samsung's filing. Judge Koh has allowed one filing from each company on the matter.

She also seems to be encouraging the companies to come to a settlement  in the long-standing case. Referring to a case management conference this month, Judge Koh wrote that "the parties shall also address whether they are willing to engage in alternative dispute resolution, and if so, what form, with whom, and when."