Articles Posted in N.D. California

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After the jury returned a verdict in Apple’s favor for over $1 billion in damages, Samsung moved the district court for a new trial. Samsung’s based its motion on the argument that the jury foreperson gave dishonest answers during voir dire and that interviews he gave after the verdict demonstrated that he was biased. As explained by the district court, “Samsung claims that Mr. Hogan lied about his involvement nineteen years ago in a lawsuit with Seagate, a company in which Samsung is, as of 2011, a 9.6% shareholder. Samsung also argues that Mr. Hogan improperly presented extraneous prejudicial information during jury deliberations.”

The jury foreperson had not disclosed that he was sued by his former employer, Seagate, in 1993 and that he had filed for personal bankruptcy six months after he was sued by Seagate. Samsung asserted that it learned of the jury foreperson’s lawsuit with Seagate only after it reviewed the bankruptcy file, which occurred after the trial had concluded.
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Apple suffered yet another set back in the Smartphone wars, this time losing its motion for a permanent injunction against Samsung. The district court denied the permanent injunction primarily on the ground that Apple could not show irreparable harm that would result to Apple if an injunction did not issue.

As explained by the district court, “[T]o satisfy the irreparable harm factor in a patent infringement suit, a patentee must establish both of the following requirements: 1) that absent an injunction, it will suffer irreparable harm, and 2) that a sufficiently strong causal nexus relates the alleged harm to the alleged infringement.” Apple, Inc. v. Samsung Electronics Co., Ltd., 695 F.3d 1370, 1374 (Fed. Cir. 2012) (“Apple II” ). This test requires a showing that consumers buy the infringing product “because it is equipped with the apparatus claimed in the . . . patent,” and not merely because it includes a feature of the type covered by the patent. Id. at 1376.”
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After the recent global settlement between Apple and HTC, the terms of which Apple and HTC agreed to keep confidential, Samsung requested production of the agreement from Apple. Samsung moved to compel the production of the agreement.

Samsung sought discovery of the agreement with HTC to support its opposition to Apple’s motion for a permanent injunction. Samsung asserted that the settlement agreement undermined Apple’s assertion that an injunction is a more appropriate remedy than monetary damages. Apple responded by stating that it was willing to provide the settlement agreement but asserted that HTC objected to the production of the agreement because the agreement’s financial terms had competitive value.
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Brandywine Communications Technologies, LLC (“Brandywine”) filed a patent infringement action against Cisco Systems, Inc. (“Cisco”). During the initial case management conference, the parties were given additional time to supplement their initial disclosures and were told to do so “on pain of preclusion.” Cisco contended that the damage disclosures remained inadequate and the district court was called on to address the issue of to what extent Fed.R.Civ.P. 26(a) requires a plaintiff in a patent cases to disclose and specify damages at the outset of the litigation even though some of the necessary information is only in the hands of the accused infringer.

Rule 26(a)(1)(A)(iii) provides: “A party must, without awaiting a discovery request, provide to the other parties a computation of each category of damages claimed by the disclosing party — who must also make available for inspection and copying as under Rule 34 the documents or other evidentiary material, unless privileged or protected from disclosure, on which each computation is based, including materials bearing on the nature and extent of injuries suffered.”
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The court previously awarded sanctions in the form of attorneys’ fees pursuant to Fed.R.Civ.P. 37 to both Samsung and Apple based on various discovery motions. Apple and Samsung both filed applications for attorneys’ fees and then objected to each other’s applications. The court found the descriptions of the attorneys’ fees, despite two attempts to submit detailed invoices, lacking. As explained below, the lack of detailed invoices caused the court to reduce the attorneys’ fees for both Apple and Samsung.

Samsung was awarded attorneys’ fees because Apple failed to turn over to Samsung certain deposition testimony by Apple’s employees in other matters. After granting three motions to compel, the court awarded sanctions in favor of Samsung, and Samsung requested approximately $258,000 in fees. Apple was awarded attorneys’ fees because Samsung was dilatory in producing documents to Apple. Apple sought approximately $116,000 in attorneys’ fees.
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This article was first published in Vol. 12, Issue 4 of E-Commerce Law Reports and is reprinted with permission.

As the smart phone wars continue to rage across the world, the verdict in the Apple v. Samsung case is the latest battle to end, at least for now, in favor of Apple. Given Apple’s victory, it is likely that Apple will continue to press its offensive throughout the globe, particularly in the United States. Even though Apple has suffered some set backs, most recently in South Korea, the victory over Samsung in the Northern District of California will spur on additional lawsuits, both in the United States and in other countries. Until Google (perhaps through Motorola) or one of the Android handset makers, such as Samsung or HTC, achieves a victory over Apple, the smart phone wars are not likely to slow anytime soon.
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Before the patent trial between Apple and Samsung began, the district court issued a preliminary injunction against Samsung from making, using, offering to sell, or selling within the United States, or importing into the United States, Samsung’s Galaxy Tab 10.1 tablet computer. This preliminary injunction issued based on a finding that Apple was likely to prevail on its claim of infringement of Apple’s design patent, U.S. Design Patent No. D504,889 (the “D’889 patent). Samsung immediately filed a notice of appeal of the preliminary injunction motion and the appeal remains pending before the Federal Circuit.

After the jury trial, in which Apple accused many Samsung products, including the Galaxy Tab 10.1, of infringement, the jury found that the Galaxy Tab 10.1 did not infringe the D’889 patent. Samsung then filed a motion to dissolve the preliminary injunction and to retain the $2.6 million bond that Apple had posted pending determination of damages suffered by Samsung as a result of the injunction.
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PageMelding filed a patent infringement action against ESPN asserting a patent that enables internet service and content providers to form mutually beneficial collaborations where website content is customized in accordance with those collaborations. PageMelding asserted that examples of infringement include, but are not limited to, ESPN3 and WatchESPN websites.

After several attempts to amend after motions to dismiss, PageMelding ultimately succeeded in filing an operative complaint. ESPN then filed an answer with twelve affirmative defenses and two counterclaims, one for a declaration of non-infringement and another for invalidity of the patent-in-suit. PageMelding then filed a motion to dismiss the counterclaims on the ground that they failed to state any facts that would put plaintiff on notice of the basis of the claims and to strike the affirmative defenses because they lacked any factual allegations and were wholly conclusory.
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The epic patent battle between Apple and Samsung has proved taxing not only for the lawyers and the parties in the case, but also for the judicial system as well. In a recent decision by the Magistrate Judge handling many of the discovery issues in the case, the court pointed out just how unusual–and difficult–the case has been for the court system and how the case has burdened the court and impacted the court’s limited resources.

In the middle of the trial, Samsung filed a motion for an adverse jury instruction against Apple. The Magistrate Judge began the order denying the instruction by pointing out that the parties to any case have an obligation to follow the schedule so that the court is able to control its docket, not just for one case, but all of its cases in an orderly fashion: “Before this case the undersigned thought the proposition unremarkable that courts set schedules and parties follow them. This basic division reflects a division not of power, but responsibility, for in setting schedules courts are responsible not only to the parties in one case but to parties in all cases. And the undeniable fact is that because they allow the court to allocate time and other resources in an orderly fashion, schedules and their deadlines in one case can and do impact those in every other case on a judge’s docket.”
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As the patent trial between Samsung and Apple continues, Samsung moved to preclude Apple from either eliciting testimony or attorney comment on Samsung’s failure to call certain witnesses to testify at trial. In its motion, Samsung asserted that permitting such testimony would be prejudicial and would be inappropriate because the district court limited the parties to a 25-hour trial time limit.

In analyzing Samsung’s request, the district court noted that “Samsung has not identified, any case law supporting Samsung’s requested blanket prohibition on testimony or attorney comment regarding either party’s failure to call particular witnesses.” Contrary to Samsung’s position, the district court found that “[c]ounsel may comment to the jury on the failure to call a witness or the judge may instruct on the presumption.” Food Machinery & Chem. Corp. v. Meader, 294 F.2d 377, 384 (9th Cir. 1961). Furthermore, both parties have been subject to the same time limit and other legal and procedural constraints of which Samsung complains, and both parties are equally free to point out the alleged deficiencies in the opposing party’s case, to the extent permitted by law. In fact, during cross-examination of Apple’s experts, Samsung asked why Apple’s experts had not communicated directly with certain Apple inventors, who are still employed by Apple and available. Thus, the jury could have drawn inferences about these inventors’ ability to testify and their absence at trial.”
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