Judge pleads for 'global peace' in Apple-Samsung fight

The two sides spent Thursday arguing over a $1 billion damages award to Apple for Samsung's infringement of its smartphone patents

At the end of a long court hearing in California on Thursday that saw Apple and Samsung argue over a US$1 billion damages award granted to Apple this summer, Judge Lucy Koh had a simple yet optimistic request: global peace.

"When is this case going to resolve?" she asked lawyers for the two sides. "This is not a joke; I'm being serious."

The answer, like so much in this protracted legal dispute, was far from simple. Lawyers for both companies spoke -- and, not surprisingly, in neither case did they answer her question. Instead they found fault with the other.

Koh continued: "I don't want to order anyone to meet again because it hasn't proven successful so far, but is there anything else that can be done? I've said this all along, it's time for global peace."

Koh spoke at the end of a hearing at the San Jose District Court in California, the same courtroom where a jury in August found Samsung had violated numerous Apple patents on smartphone technology and design, and ordered Samsung to pay $1.05 billion in damages.

The trial appears to be heading for appeal, but before that the judge has to sign off on the jury's verdict. So on Thursday, a little after 1:30 p.m., in a courtroom packed with lawyers and reporters, arguments got under way about specific points that the lawyers believe the jury got wrong.

A lot of arguments were about the damages award.

The jurors were asked to come up with a damages figure for each phone model, considering whether the phones infringed on the company's design and utility patents. Jurors considered Samsung's profits made on each phone, Apple's lost profits, and any patent royalty fees.

Samsung contends that a lot of the figures were too high, and Apple, of course, contends they are not.

The arguments got deep into the weeds on a number of specific awards for different phones. One of the first up was the Samsung Prevail, which the jury found to have infringed Apple utility patents but not any design patents.

Samsung argued that the jury took into account both Samsung's profits and Apple's lost profits, when they should have considered only the former. Koh seemed to agree. "It appears the damages award is not authorized by law for this product.," she said.

Other phones and patents were also debated and while the specifics were different for each, it often came down to the same question: should any errors be left as they were, should they be recalculated to correct them, or should the entire damages award be thrown out and calculated from scratch.

The arguments over damages didn't stop there. In August, the jury found that Samsung's infringement was willful, which allows Koh to increase the damages by up to three times.

"Apple has not come close to meeting the standard for willfulness," said Kathleen Sullivan, a lawyer with Quinn Emmanuel, representing Samsung.

She argued that of the $1.05 billion award, about 90 percent was immediately not applicable for an increase under law. Sullivan then argued down the remaining $101 million to about $10 million that could be trebled, and then offered reasons why even that should not be increased.

"We're looking at Samsung's state of mind," said Harold McElhinny, an attorney with Morrison Foerster, representing Apple. "This was an intentional attempt by Samsung to copy an electronic product that they knew was covered by literally thousands of patents."

Beyond the damages, Koh also has in front of her a request for an injunction to stop sales of the 26 Samsung handsets covered in the case.

Apple supports an injunction, but Samsung argued that most of the handsets aren't on sale anymore. It did reveal that 77,000 units of the Galaxy SII, one of the phones covered in the case, are still with retailers in the U.S.

The two sides also clashed over jury foreman Velvin Hogan. He was party to a lawsuit in 1993 against Seagate -- a company that last year acquired Samsung's hard-disk drive business in return for a 10 percent share of the company. Samsung contends that Hogan should have disclosed this before the jury was selected.

"We know that he was dishonest in a court question and we know from interviews he has given that he very much wanted to be on this jury," Samsung lawyer Tom Quinn said, referring to interviews Hogan granted reporters after the case.

"At a minimum, the court needs to hold a hearing, foreman Hogan be brought in and we have a chance to question him, and the other jurors be brought in and we have a chance to question them on his influence," said Quinn.

Koh expressed some skepticism at the argument.

"Hogan said he worked for Seagate, why didn't you ask him?"

Martyn Williams covers mobile telecoms, Silicon Valley and general technology breaking news for The IDG News Service. Follow Martyn on Twitter at @martyn_williams. Martyn's e-mail address is martyn_williams@idg.com

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