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No Sympathy for Samsung

June 04, 2018
Post by Gregory "Lars" Gunnerson

In May, an eight-member California federal jury awarded Apple a staggering $500+ million verdict as a result of a patent litigation lawsuit that has been ongoing for at least 7 years. The verdict has proved to be particularly puzzling for patent law professors and other patent advocates that disagree over whether an article of manufacture in relation to a patented design can cover a product encompassing many distinct technical inventions and improvements, such as a cell phone; or whether the article of manufacture should be considered to be the components within the product. Still further, there appears to be some significant disagreement over whether the four-factor test put forth by the Solicitor General and adopted by the Court is even appropriate or straightforward enough to be applied consistently across a wide variety of patent disputes moving forward.

The verdict provided no information about how jurors calculated the amount of damages they ordered Samsung Electronics Co. Ltd. to pay Apple Inc. for infringing smartphone patents, or how they applied the 2016 Supreme Court ruling in the case that was widely viewed as limiting the damages available for design patents. However, it has been reported that the article of manufacture considered for infringing Apple's D’305 patent was the entire cell phone and the article of manufacture considered for infringing the D’677 patent was only certain parts of the phone.

Those that have been following this case may ask how the amount in damages could rise to over $500 million. As it turns out, after Samsung was determined to be a willful infringer and made representations to the Court that it would stop selling infringing products, Judge Lucy Koh determined in January during a hearing that such a representation was “just not accurate”. Perhaps these ongoing sales account for a portion of the difference between the $400 million verdict and the $500 million verdict.

Other examples of actions taken by Samsung or its legal counsel that may have driven the jury to deliver such a harsh verdict include:

  • attempting to get around the judge’s order to include more damage experts, some of which would testify to entirely new consumer survey-based methodologies to calculate damages;
  • publicly posting information during the 2012 trial to taint the jury pool;
  • trying to reclaim, which Samsung had been banned from doing, Samsung developed designs like the iPhone before the iPhone was released;
  • mentioning third-party patents in a damages only proceeding;
  • having to be ordered to provide the flight itinerary and boarding pass of a witness they suddenly dropped after Apple rested its case to determine if Samsung was “playing games”;
  • asking Apple’s graphic design expert if she thought the total-profit statutory remedy for patent infringement is fair to invite nullification of the verdict; and
  • sandbagging Apple with new demonstratives in the form of slides that the attorneys were making on the fly.

Gregory “Lars” Gunnerson is a Patent Attorney in the Mechanical and Electrical Patent Practice Group at McKee, Voorhees & Sease, PLC. For additional information please visit www.ipmvs.com or contact Lars directly via email at gregory.gunnerson@ipmvs.com.


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The attorneys of McKee, Voorhees & Sease, P.L.C. designed this blog as an informational and educational resource about intellectual property law for our clients, other attorneys, and the public as a whole. Our goal is to provide cutting-edge information about recent developments in intellectual property law, including relevant case law updates, proposed legislation, and intellectual property law in the news.

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