Apple v Samsung Motion For Retrial Denied – February 7, 2014

Post-Trial Motions Hearing January 30, 2014

I attended the hearing covering post-trial motions on January 30, 2014 and posted a partial rough transcript here. Although we did not record this part of the hearing I was there and recall the discussion.

At the end of the hearing, Samsung rolled out a new attorney who argued that at the closing arguments in the case, the Apple attorney made racially charged statements to influence the attorney. In particular, that in past, the American television industry was decimated by Asian manufacturers who slavishly copied American technology. Apple argued that because the American Television Industry did not protect its intellectual property, the American industry was destroyed competitively.

A point of contention that was introduced, was that Samsung’s allegation includes a laundry list of racial insinuations that occurred throughout the trial, but that Samsung did not object until the very end. The implication being that Samsung trotted this allegation out when it knew it was going to lose. This is similar to the issue with the lead juror in the first damages trial. Allegations were made after the verdict, that the lead juror had an axe to grind and was a proponent of software patents. Again there, it was also true that Samsung knew about the juror, but did not raise an issue until after the jury had arrived at its verdict.

Here, Samsung argued that it did not object earlier because of Apple’s strategy. Samsung argued that Apple over the course of the trial essentially slowly introduced an explosive racial element under the surface. And then, only at the end of the trial, did Apple “ignite” that powder keg in it’s closing arguments before the jury.

Apple dismissed this allegation, indicating that during the course of the trial, it did refer to Samsung as a Korean company, which it in fact is. Apple further went into some details claiming that throughout the trial Samsung nitpicked about every little thing. One example I recall Apple’s attorney citing was the sign with the removable letters that directs people to the appropriate courtroom had the order of the litigants reversed – I believe stating Samsung v Apple instead of Apple v Samsung. Apple argued that given this nitpicking, it is unlikely that Samsung would have stood for the alleged building of the powder keg, unless it was deliberately doing so until after it knew it was losing.


Judge Koh Issues Order on February 7, 2014.

Judge Koh indicates the motion for a retrial due to Apple’s appeal to prejudice invokes Rule 59. Judge Koh went on to chide Apple’s legal team for what it did. In particular, Judge Koh cited a journal article, Xenophobia in American Courts, by Judge Moore (before she was a Judge). In that article, Judge Moore found that foreign patent holders prevailed in jurty trials against alleged domestic infringers 38% of the time, but that when the tables were turned the win rate was 82%. Judge Moore further found that the success rates were essentially even in decisions made by judges, foreign patentees winning 31% of the time against domestic alleged infringers, and domestic patentees winning 35% against foreign alleged infringers.

Judge Koh went on to argue that Apple’s conduct was regrettable, but did not rise to the standard necessary to warrant a retrial.


Further Elements of Judge Koh’s Order

Judge Koh’s order addresses several additional questions with respect to post-trial motions, which we will be getting to in the coming days. Our rough written transcript contains details on many of those arguments.


Second Case Continues To Progress

At the same time, the second case keeps progressing to the Jury trial scheduled to begin March 31. Judge Koh has been lobbying hard for a settlement, which everyone agrees is unlikely. The fact that Samsung is using the settlement discussions to undermine motions for preliminary and permanent injunctions no doubt undermines the likelihood of any last minute settlement.

Judge Koh has been issuing daily orders in relation to the Daubert Motions in case. The corresponding Daubert Motion hearing was conducted on January 23, 2014. We attended that Daubert Motion Hearing and posted our notes here. We may report significant developments on these motions if something significant occurs in the coming days.

A pre-trial hearing is set to occur March 5, 2014. We will try to attend that hearing and report on it.