Can US jury's pro-Apple argument stand?

By Cho Mu-hyun, Kim Yoo-chul

Samsung Electronics Chairman Lee Kun-hee recently ordered the firm’s top management to maintain a hard-line stance against its biggest client Apple in the ongoing patent dispute, according to company officials. The firm’s mobile chief Shin Jongkyun also recently told reporters that Samsung currently doesn’t have any intention to seek a settlement. / Korea Times file

Samsung Electronics was ordered to pay Apple $1.05 billion by nine U.S. jurors in August, led by their controversial foreman Velvin Hogan who believed the Korean technology behemoth ``willfully’’ infringed on some of Apple’s patents.

But a document Samsung filed with the court in California hopes to show that the jurors’ decision that there was willful patent infringement should be ruled invalid.

On Tuesday, the 27-page legal paper, which was obtained by The Korea Times, said Samsung will insist that the jurors’ conclusion doesn’t make sense in the Dec. 6 hearing on the case presided by Judge Lucy Koh.

Patent experts and scholars are also split over the legal definition of ``willful.’’ But they generally agree Samsung could make a persuasive argument based on those credentials.

Citing precedents, Samsung asserts that “to willfully infringe on a patent, the patent must exist and one must have knowledge of it.”

The legal paper goes on to say, “Hence a party cannot be found to have willfully infringed on a patent of which the party had no knowledge,”.

The Korean firm said that knowledge of Apple products does not simply equate to knowledge of Apple patents and “it plainly had no such notice.”

It argues that evidence of copying, mostly pictures of Samsung products similar to that of its American counterpart, presented by its rival “predates the issuances of patents found infringed” by the jury. Thus, arguing for patent protection before being issued “defeats willfulness as a matter of law.”

All of this points to the fact that the iPhone maker failed to present clear and convincing evidence, according to the document.

“In Korea, willful can be applied even if the copier had no knowledge of the existence of a patent it copied. Knowledge of the subject that uses the patent is enough for it to apply,’’ said Kim Kyung-hwan, a lawyer at domestic law firm Minwho, by telephone.

He continued, ``But in the United States it is a little different. The issue is more complex but to put it simply, whether the copier knew of a patent for the copied subject can be argued depending on the circumstance.”

Sejong University professor Bryan Hopkins said Samsung’s assertions, if the facts mentioned in the documents are true, presents a very valid argument against Apple.

“In the West, willful has a negative connotation (and hampers images and businesses substantially),” he said by phone. “If proven true that infringed products were not patented during the time of copying and Samsung has sufficient evidence to prove that, then it isn’t a bad way to go. The ultimate decision will be up to Judge Koh.”

Sohn Kyung-han, a professor specializing in patent law at Sungkyunkwan University, agreed with Hopkins: “If all the aforementioned facts presented by Samsung are true, they have a legitimate argument to efface willfulness from the verdict and just get the actual damages. It is obvious that a said product must be patented to get protection for willful patent violations to be argued.”

“The patentee can also file a formal warning to a violator if it discovers that its patents are being infringed. If Samsung can show that it has received no such notice, it is also a legitimate argument in line with its stance,” Sohn said over the phone.

Another contentious matter has been Hogan’s statements that there was intent to “punish” the Korean firm for its infringements.

“The main goal of patent laws is to protect the patentee. It is not to punish the copier. If part of the jury’s decision for the substantial damages was decided due to Samsung’s adverse intent in copying patents, the evidence presented by Samsung that it had no knowledge of the patents will nullify willfulness,” said another lawyer who requested anonymity due to client issues.

The intensifying legal tussle between the two technology giants has spawned numerous interests in the future of the patent legal system.

An in-house lawyer for a large domestic conglomerate said, “The Apple-Samsung fight is drawing much attention as it highlights the changing legal landscape surrounding patents.

“The significance of patent law is forcing competitors to remove popular features and shaping the way innovation and competition works.”

A Samsung spokesman declined to comment on filings to the court. Apple’s spokesman Steve Park also refused to comment on whether his company gave Samsung prior warning of possible patent infringements.