US patent expert suggests Judge Koh check holes in iPhone maker's argument
By Kim Yoo-chul, Cho Mu-hyun
What has motivated Apple to be so persistent in pressing for its patents in smart devices?
It may be the ghost of its founder Steve Jobs, who had reportedly planned a firestorm of legal action 10 years before his death, or it could be a survival tactic of those left behind at the firm after Jobs’ demise.
Although Apple is ridiculed for patent-trolling, Brian J. Love of the Santa Clara University School of Law said it was not just about money but, more importantly, recognition as a true innovator. Prof. Love is an expert in patent disputes.
“Apple wants more than money and sales bans. Apple wants to send a message to the world that Apple made the smartphone as ubiquitous as it is today and that Android is a mere copycat,” Prof. Love said.
“Apple executives want to shout it out from the rooftops,’’ he said in an email interview.
Regarding the ruling expected on Dec. 6 by the U.S. Federal Judge Lucy Koh, the professor raised an interesting point. “Some have estimated that smartphones are covered by about 250,000 U.S. patents.”
He said, without providing data, that Apple wanted Samsung to pay $48 per phone for six patents. “If all 250,000 patents were valued at the same amount, Samsung would have to charge the ridiculous price of $2 million per phone just to break even.’’
“Smartphones are complex devices, and customers choose which mobile phone to purchase based on innumerable considerations,” Love said.
He doubted that Apple could credibly claim that consumers value these six features so highly that, but for infringement, most of Samsung’s customers would have purchased iPhones.
He wondered if the market share that Apple lost to Samsung is really attributable to these six patents, which represent a tiny handful among the thousands of others.
Judge Koh should review these questions before making her ruling on the $1.05 billion verdict by a nine-member jury he noted.
“I would urge her to take into consideration the sheer complexity of these devices when doing so.’’ Regarding the possibility of an out-of-court settlement in the near future, he was skeptical.
“The dispute may well continue for years to come as Apple appears to be far more interested in sending a message to Google and Android phone manufacturers than it is winning money via these lawsuits. Settlement may be unlikely,’’ said the professor.
“Because patent litigation takes years to complete, but firms like Samsung release new phones almost continuously, Apple can continue to file lawsuit after lawsuit, accusing each new batch of Android products as they are released,’’ he continued.
This view is echoed by previous stances by Samsung and even Florian Mueller of FossPatents. Samsung said it plans to build its second handset-making factory in Vietnam as an apparent strategy to further lead over its rival Apple in the smartphones race.
The professor was quite negative about the latest decision in a court in the United Kingdom that ordered Apple to make a public apology in prominent news publications there, as he doesn’t expect this to matter much in other cases ongoing in other countries.
“Future judges will understand that Apple didn’t make this statement of its own free will. I would be shocked if any other courts take this statement as an admission of non-infringement,’’ Love said in the interview.
Samsung has already applied for a retrial in the United States case, citing the jury foreman’s misconduct. Spokesman Park Han-yong declined to unveil more updates about its next legal strategy.
“Samsung may be ordered by the judge to pay less than that amount of damages awarded by the nine U.S. jurors in August, California,’’ Love said.
But the chance is small, according to the professor. ``Samsung is unlikely to prevail in its efforts to overturn the verdict on the basis of jury misconduct. However, large patent damages awards are thrown out after trial with some regularity,’’ he said.
His research mainly focuses on patent law, intellectual property, and other issues at the intersection of law and tech policy.
In August, the jury in the ``tech trial of the century’’ ruled that Samsung willfully infringed on a number of Apple patents, including one for a “bounce back’’ feature. The jury, led by foreman Velvin Hogan, gave a lop-sided victory to Apple.
“For example, a recent verdict against Blackberry-maker RIM that came to $8 per infringing phone was recently overturned by another federal judge in California. The verdict against Samsung is similar in size, about $8 per phone per patent found to be infringed,’’ Love said.
Despite heated controversy about the jury foreman, he said Samsung’s chances of overturning the verdict are ``slim.”
``Though it is quite clear from Hogan’s statements that he misunderstood many aspects of patent law, U.S. rules of evidence make it quite difficult to throw out a verdict on the basis of what went on during the jury’s deliberations,’’ he said.
According to his observation, jury misconduct is limited to circumstances involving evidence not introduced at trial or other outside influences such as bribery and threats.
“For that reason, evidence that the jury misunderstood the law or even failed to pay attention at trial or to the judge’s instructions are usually insufficient to overturn a verdict,’’ he said.