Apple v. Samsung: The legal aftershocks

Apple v. Samsung: The legal aftershocks

Summary: What do lawyers make of Apple's victory? They think among other things that, besides showing a broken patent system, Apple may yet regret its “victory.”

Lawyers don't see a clear-cut victory for Apple in Apple v. Samsung.

At first glance, it looks like Apple cracked Samsung like an egg in their US patent court victory. Lawyers don't see it as being that clear-cut.

Besides, questions about the jury's rush to judgment --they didn't even bother to read their court instructions--and the simple fact that the case will be appealed for years to come, there are concerns that the jury was in over its head from the start.

In an AP story, Robin Feldman, an intellectual property professor at the University of California Hastings Law School said "This case is unmanageable for a jury. There are more than 100 pages of jury instructions. I don't give that much reading to my law students. They can't possible digest it."

Daniel Ravicher, executive director of the Public Patent Foundation (PUBPAT) thinks that “Apple tried the 'kitchen sink" strategy and throwing everything at Samsung they could, hoping something would stick. They only got 1B of the 2.5B they were asking for. It's a win in one sense, but not a blow out as some have said, especially since Apple had home court advantage. I actually thought they'd get a stronger win.”

The home-town jury and the sheer mass of accusations aside, Thomas Carey, a partner at Sunstein, a major intellectual property (IP) law firm and chair of its Business Practice Group, said, “Clearly there will be an appeal to the Federal Circuit. Among other things, the challenge will likely include the question of whether the "look and feel" patents involve eligible subject matter, or whether they are too much akin to a mathematical algorithm to warrant patentability. The principal patent claims all involve 'a computer implemented method,' which to some folks strays over the line into unpatentable material.”

Samsung smartphones/tablets ruled in violation of Apple patents (images)

Andrew “Andy” Updegrove, a founding partner of Gesmer Updegrove, a top technology law firm, agreed. “I think it's a given that Samsung will appeal. Given the damages awarded and the obvious determination of Apple to defend its patents, Samsung has little choice but to press forward wherever it can in court.”

But, Updegrove continued, “This doesn't necessarily mean that it's ultimate goal is to prevail through litigation, because it will constantly be running into existing and new Apple patents for so long as they remain competitors in the marketplace. Ultimately, what should make the best sense for Samsung is to negotiate the most comprehensive patent cross license with Apple that it can, and maintaining a full court press throughout the world's legal venues is the best way to ensure that it can get the best terms possible in such a license.”

Unfortunately, Apple has shown no sign of wanting to license some of its technologies to potential rivals at any price.

Updegrove said, “Apple is different, because Apple (unlike most companies) may not be willing to license its most innovative features. Indeed, if Steve Jobs was still at the helm, I think that there would be little doubt that this would be the case. Presumably, this would be the right decision for Tim Cook as well, because it is Apple's innovation and style sense that justifies its premium prices. Plus, it has boatloads of cash in the bank, and the number of devices pouring into the market place would generate more than enough to recover legal costs if Apple is successful only part of the time."

Updegrove added, “Throw the iOS vs. Android aspect into the mix, and it's hard to see how this won't be in the courts for quite a while to come. Indeed, Samsung has little choice, because almost any price in legal fees would be less than having its existing products barred from the marketplace. The longer it can forestall that result, the better its bottom line, even if ultimately it has to pay up on those damages. Indeed, filing an appeal is like forcing Apple to license its patents if the result is to stay a bar on the sale of Samsung's infringing products. All in all, it's a very cynical but pragmatic game.”

As Carey points out though, “It is possible that the Federal Circuit will reverse. If they do not, there is a decent chance that the Supreme Court will take an interest in this. SCOTUS [Supreme Court of the United States] has been all over the map lately concerning what is and is not protectable; and this may be a chance for them to clarify (or further confuse) the subject.” If that were the case, Apple could ultimately lose big.

In the meantime, though, Updegrove observed that while “Lately, we've all gotten used to analogizing patents to nuclear weapons, and equating patent strategies to those that would have led to mutually assured destruction. But in the case of the current patent wars focusing on mobile devices, trench war may provide a more apt metaphor”

“Why? He continued, “Because most legal processes move so slowly, and at such great expense. It seems as if there's always another motion and another appeal, with neither side often holding any ground gained for very long. By the time all remedies have been exhausted, the technology in question may have been leapfrogged by new innovations - and perhaps new legal actions as well. In the meantime, wave after wave of lawyers and stockholder equity are thrown into the breach, while each company otherwise goes on with business, and sales, as usual.”

Apple may yet live to regret its current victory though. Ravicher pointed out that “This verdict may come back to haunt Apple, since it is much more often a defendant in patent infringement cases, than a plaintiff. Now, the non-practicing entities that sue them in 0the U.S. District Court in] Eastern Texas can trump out Apple's own verdict as showing that $1B in damages is a far amount for patents relating to the iPhone/iPad. Companies that VirnetX, which has a patent infringement trial against Apple this November, may actually be able to use Apple's win against it.”

In other words, while an Apple and a Samsung can battle with each other and continue with businesses as usual, the patent trolls, whose only business is shaking down corporations and their stock holders for payoffs, may end up being the only long-term winners.

Indeed, days before Apple's “win,” VimetX refiled its patent infringement case against Apple. VimetX was already successful in 2010 in shaking Microsoft down for $200-million. Perhaps they'll ask for $2-billion this time from Apple.

Related Stories:

Apple's patent victory over Samsung: What the analysts say

Apple victory aftermath: Samsung stock slips and experts question jury speed

Samsung's Apple patent loss: The financial hit is manageable

Apple vs. Samsung verdict: It doesn't matter

The verdict is in: Samsung vs. Apple

Topics: Legal, Android, Apple, Mobility, Patents, Samsung, Smartphones, Tablets

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  • Gawd if we could only replace lawyers with daggers

    and let them all just go at it. Then we'd ALL be winners.
  • Oh!

    Oh, so now Samsung doesn't want trial by jury! Why didn't they say so! Sorry, we'll just do it all over again ...
    • What an asinine comment.

      Are you saying that because appeals are heard by a judge sitting alone without a jury that Samsung (or anyone else for that matter) has no right to appeal a verdict? You would perhaps remove the right of appeal from the US legal system if you could?
      • Absolutely not!

        I'm just saying that Samsung started out here by assuming that trial by jury would resolve in their favour. Their 1k+/hr lawyers must have assumed that their carefully crafted, heartfelt arguments and evidence would sway the opinion of the common man and woman. Arguments about innovation and fairness, right and wrong would prevail!

        So sad, that wasn't the case, at all.
        • Nonsense. Apple chose to sue Samsung, not the other way around.

          The trial of the first instance was by definition going to be a jury trial.
        • A Jury of their peers?

          Who on that jury could Samsung consider a peer?
      • Not Appealing

        Lighten up. Samsung is allowed to fall on the sword they lived by. No one has suggested otherwise. "You sir, would perhaps remove the right of sarcasm from the US sarcasm system if you could?" Dude, please. I know it sends chills to use the word asinine, but pick your battles ok.

        They are allowed due process. They're allowed to pay everyone's legal bills right up to the highest court that will hear them. A lost appeal further validates an Apple hold over multitouch devices, and more precedents are set. Supporters of knock off artists everywhere might show a little concern for two issues. The first is that Samsung really didn't need to copy the iPhone with as much fidelity. Decisions were made. Secondly, they are in a losing PR war. Apple's leadership is patently obvious now. We've been down this road before. Folks recognize wellspring over water bearer these days.

        You're not helping with the bombast.
        Harry Bardal
        • Bombast?

          Bombast, is that some sort of slick, liberal, legal term? Surely, Mr FrederickLeeson was only trying to uphold the sanctity of the US legal system against those who might use sarcasm to undermine it's very foundation! In light of Mr FrederickLeeson's earnest appeal, I might indeed be willing to concede that Samsung has full right of appeal.

          May they fair better with the learned judiciary than they did with the common man.
        • Harry Bardal

          There's a name from the past I haven't seen in a while. Don't forget to give Bott a little hell before you disappear again Harry. ;)
      • Tips

        On appeal, it might help if Samsung's 1k+ lawyers, knowing they are defending an obvious knockoff artist, use the words "freedom" and "freedom to innovate" more often. Don't say "freedom" or "freedom to innovate" for whom or what, just say "freedom to innovate" a lot, like you represent freedom and true innovation. US judges and common folk are likely to believe it the more you say it. It might help you win. Just sayin'
        • Define a 'knockoff artist"

          The iPhone was not particularly original, it looked like an LG Prada and was choc-a-block with NOKIA technology that Apple tried very hard not to pay for.
          • In broader sense, every phone was a copycat

            Rectangular displays for digital devices, didn't that occur with Macs, PCs too?

            What do you expect? Phones with round displays?
  • Apple design

    Ever notice that Star Wars Imperial troops/tech looks like an Apple design?
    • These are not the phones you're looking for

      null text
  • Apple vs XEROX PARC

    Need I say more....
    Jobs freelyadmitted in a widely distributed interview now available on youtube, that he STOLE ( as he SAID"Good artists copy, GREAT artists ( emphasis his) STEAL... ) I swear I don't know HOW on earth the public puts up with these people at apple.
    Is there no JUSTICE??? REALLY???? XEROX invented the GUI. Apple OWES XSEROX TENS of BILLIONS of dollars.... By ANY fair accountint procedure...
    • People are still repeating this nonsense!

      Xerox had no idea what they had... Apple did... they licensed it.. for far less than it was worth for sure... what you seem to have missedis that Xerox has already had their day in court... they LOST... they messed up and licencedto Apple for for too little... that's not Apple's fault though that's Xerox's
      • Talk about not knowing....

        They (Apple) paid for the VISIT. Not the tech they were "inspired" by. There's a monumental difference.
    • Educate yourself before making yourself look more foolish...
    • Will people understand the concept of metaphore?

      In "Good artists copy, great artists steal" phrase actual theft is meant by the word "copy", and by "steal" author mean being inspired and going beyond the prior idea.

      And yes, Xerox was paid with Apple's shares.
  • It is a win for Apple and consumers.

    Samesung made cash by imitating Apple's designs. So, this verdict is not only a win for Apple, it is a win for consumers who deservers better options than cheap and bad quality imitations.
    Alex Sarmiento