Apple opposes Samsung's plea to stay damages retrial

Samsung had asked for a stay in the retrial in view of new developments in the reexamination of a key patent

Apple has contested Samsung Electronics' plea for a stay in the damages retrial currently in a federal court in California, stating that the reexamination proceedings by the U.S. Patent and Trademark Office of an important patent in the lawsuit "are not final."

"Samsung's strategy to delay entry of final judgment in this case has crossed the bounds of reason: Samsung seeks to halt the damages retrial in the midst of jury deliberations," Apple said in a filing late Wednesday in the U.S. District Court for the Northern District of California, San Jose division. The reexamination proceedings will not be final even at the USPTO level until the end of 2016 at the earliest, Apple said.

It also raised the possibility that it may subsequently appeal to the USPTO's Patent Trial and Appeal Board, and if unsuccessful, may seek judicial review in an appeals court.

Samsung had earlier asked for a stay in the damages retrial, stating that the examiner at the USPTO had issued Wednesday an "Advisory Action" finding all claims of the U.S. Patent no. 7,844,915 (the '915 patent) invalid. It described the Advisory Action as the examiner's final word on the invalidity of the patent.

Apple was awarded last year US$1.05 billion in damages in the patent dispute against Samsung. Judge Lucy Koh vacated $450 million in damages and ordered a retrial to recalculate damages.

The jury is currently deliberating on awarding damages on an invalid '915 patent for 12 of the 13 products at issue, Samsung said in the filing. The South Korean company moved for a "an immediate stay of this action and requests that this matter be heard by the Court immediately, before the jury completes its deliberations."

The USPTO rejected 21 claims of the patent, known as the "pinch-to-zoom" patent, in July in a decision called a "Final Office Action," as they were anticipated by previous patents or unpatentable. The patent covers the ability to distinguish between the scrolling movement of one finger and two-finger gestures like pinch-to-zoom on a touch-screen to activate certain functions.

Apple said in the filing it is still within the period during which it may respond to the July 26 final office action and persuade the examiner to withdraw the rejection.

In Samsung's view, the options available to Apple before the USPTO were now limited to an appeal. But Apple disagrees on the procedures ahead. An Advisory Action is not the conclusion of reexamination proceedings, or even of proceedings before the examiner, but a communication that states that the previous response did not completely overcome the rejections in the final office action, Apple said in its filing.

John Ribeiro covers outsourcing and general technology breaking news from India for The IDG News Service. Follow John on Twitter at @Johnribeiro. John's e-mail address is john_ribeiro@idg.com

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