Smaller damages for Apple?
Patent expert says jury erroneously reached $1 billion
Apple has sued Samsung Electronics in the global patent war. In San Jose, a jury gave the former a $1.05-billion verdict against the latter. Presiding U.S. Federal Judge Lucy Koh will make a final ruling on Dec. 6. This is the first in a series of interviews with experts about what to expect in Koh’s ruling. ― ED.
By Kim Yoo-chul, Cho Mu-hyun
``My advice to U.S. Federal Judge Lucy Koh would be to give up hopes of a near-term settlement. If anything can put the parties closer to a settlement, it will be rulings, and even more rulings in California and the rest of the world,’’ said German-based patent expert Florian Mueller of FossPatents, in an interview with The Korea Times, Monday.
Mueller said Koh has done everything humanly possible to preside over the multi-billion litigation, fairly. ``One can disagree with some of her decisions. But I don’t think one can blame her for bad intentions,’’ he said.
According to his observation, adjustments are likely in the California verdict. ``On the bottom line, Apple obviously has more to lose at this stage,’’ said Mueller, adding he was more skeptical than he was a couple months ago about Apple’s entitlement to a damages enhancement.
The United States is ``obviously a huge and lucrative market,’’ however, according to him, even there, Samsung doesn’t have to fear much in the near term except for the damages it may have to pay.
``I believe that Judge Koh will take the damages amount below $1.05 billion because the jury made at least one very obvious mistake, awarding Apple a disgorgement of Galaxy Prevail profits, which is contrary to law because that particular device was not held to infringe any design patent and disgorgement is available only for design patents, not for software patents,’’ said the expert.
``There can always be a surprising situation in which the companies' CEOs find common ground, but, from a strategic point of view, it doesn’t make sense for either party to settle now. Apple feels encouraged by the California verdict while Samsung sees that it can work around the patents Apple has enforced so far, with limited impact on the attractiveness of its products,’’ according to the expert.
Apple is consistently claiming Samsung copied its products and said it refused a cross-licensing deal before the fight started.
``Apple primarily wants product differentiation. If it's going to accept royalties, it will want them to be so high that they result in price differentiation. In order to get any of this, Apple needs very meaningful court victories, and it realizes that this takes time,’’ he said.
On Apple’s design patent-related sides, he also stressed; ``The iPhone maker has achieved what the industry in general tries to avoid ― designs that trigger lawsuits from Apple. But there will still be tablets and smartphones with rounded corners. The software patent dispute is more of an Apple-Android than Apple-Samsung problem.’’
Innovation killer
In an earlier filing to the California court, Samsung pointed out the direct involvement of jury foreman Velvin Hogan, who appeared in a number of media interviews following the trial and commented on what went on behind the scenes.
Samsung said Hogan failed to bring up the fact that he had a legal dispute with Seagate in 1993, something Apple says Samsung missed its chance to do.
``I am sure he would have been excluded. Apple hit the lottery jackpot with Hogan. There’s no question that he’s very pro-patent in general. He holds software patents that some people on the Internet believe are of questionable validity,’’ Mueller said.
He partly agreed that Apple may appear to be an innovation killer. ``The right patent is broad enough to capture a lot of infringements but narrow enough to be different from prior art. Apple is trying to find out which of its patents strike the right balance. In doing so, it also takes some unbalanced positions, like other litigants do.’’
Asked about the possible impact of Judge Koh’s latest decision to publicize Apple’s key financial figures, Mueller said the order won't have any big negative repercussions on Apple.
``Apple has recently been less successful with protecting company secrets than in the past. It’s too big and important now. There are too many people interested in its internals and too many employees who can leak them.’’
About one-year into new Apple CEO’s Tim Cook’s leadership, the expert commented; ``I think Tim Cook has proven that he is different. He’s probably the better corporate leader but unlike Steve Jobs, he’s not a leader for the cult-like following that Apple enjoys. Apple is still sort of a cult for its loyal fans even after Steve Jobs, but it increasingly has to compete on the merits of its products, which is an opportunity for Samsung, a company that never did things the Steve Jobs way, and now faces an increasingly level playing field.’’