Janicke on Apple-Samsung verdict

Aug. 29, 2012 -- In a near unanimous decision Aug. 25, a jury in California awarded Apple Inc.  $1.05 billion in damages for its claim that one of its competitors, Samsung, had infringed on a number of its patents for the iPad and iPhone. University of Houston Law Center Professor Paul M. Janicke has more than 40 years of experience in the practice and teaching of patent law.  Prior to joining the Law Center faculty in 1992, Janicke worked in patent litigation with the Houston Law firm of Arnold, White & Durkee, where he was outside patent counsel for clients such as Shell Oil Co. and Compaq Computer Corp. He currently teaches Evidence, Patent Law, Patent Litigation, an introductory survey course in Intellectual Property Law, and a seminar for Advanced Topics in Intellectual Property Law. He has published extensively in the fields of patent, trademark, and licensing law. He also is a founder of the online site Patstats.org which tracks patent rulings.  Janicke took a look at the verdict and possible outcomes.

Q.) What did you think of the verdict?
It is very large as patent verdicts go. In the past five years, only two verdicts – one against Abbott and one against Microsoft were larger. Both were cut down in post-verdict proceedings in the courts. We need to bear in mind that a civil verdict is not a final judgment of the district court, especially in patent infringement cases. Typically, there are numerous motions made and decided by the district judge prior to entry of judgment. These could turn the result completely around in favor of Samsung. They could make the amount smaller, or sometimes even larger due to willfulness of the infringement. The jury here found the infringement was willful on some of the patents involved.

Q.)  Is the $1.05 billion award against Samsung likely to stand?
That is hard to say. The judgment could be a lot smaller if the judge finds the evidence does not support that level of damages. It could be larger if the evidence was sufficient and the judge determines that an enlarged amount (up to three times is permitted) is appropriate. That is a discretionary decision and hard to predict.

Q.) Apple has requested that eight Samsung devices be removed from the U.S. market immediately. Is this likely to happen?

If the verdict answers on infringement and validity withstand post-trial motions, I suspect an injunction is likely. These are two competitors, and in late June, prior to trial, Judge Koh granted a preliminary injunction against further sales of some Samsung products. In doing so she found Apple was likely to win the case on several of its patents, and that the balance of hardships regarding an injunction was in Apple’s favor. Although the Federal Circuit put the preliminary injunction on hold to see how the trial would come out, it looks like the district judge is inclined to issue some form of an injunction, provided the post-trial motions do not upset the jury’s findings on validity of the Apple patents and infringement of them by Samsung.  A hearing on a further injunction is set for late September. For the permanent injunction, if there is to be one, the hearing is currently set for December.

Q.) What do you think of Samsung’s likelihood of success on appeal?

It largely depends on what happens on the post-trial motions and what the final district court judgment looks like. Very big damage awards in patent cases tend to get close scrutiny in the court of appeals, on all the issues involved, but some judgments in the hundreds of millions have been affirmed.

Q.)  What is the likely impact of this verdict on other manufacturers of electronics?

I think it’s fairly obvious that other companies will take note of this large verdict, and maybe it will put more patent caution into their future phone-design choices and could accelerate the timing of introduction of newer models.

Q.) Can you tell us more about Patstats.org – why was it created, what need does it serve, has it been successful?
We created patstats.org in 2000 to track rulings on 40 issues that commonly arise in patent litigation. We thought there was a need among litigants and their lawyers to know how the courts had been treating each of these issues and to report on them close in time to the dates of the rulings. We therefore chose to post on a quarterly basis how many times a court had ruled on each issue, and which way – favoring the patent owner or favoring the accused infringer. The site has had a large following, usually several hundred visits per day. Our data have been cited in many journal articles and in some court decisions.

Click here to read previous article in the National Law Journal.

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