FOSS PATENTS: Apple’s and Samsung’s pre-trial statement and motions in limine

We’re only about three weeks away from the Apple v. Samsung (and vice versa) trial in California. On Thursday, the parties filed their motions in limine (motions to exclude evidence and arguments), and on Friday, they filed a joint pre-trial conference statement.

The parties had previously narrowed their claims.

Apple would like to attack 31 Samsung products, five of which are different versions of the Galaxy S II (AT&T; i9100; T-Mobile; Epic 4G Touch; Skyrocket). Samsung disputes that any version of the S II is at issue, arguing that Apple was too late in adding those devices to its list of accused products. Samsung would even like the Galaxy Ace and Galaxy S (i9000) excluded, arguing that they “are not sold in the United States”.

Samsung’s motion in limine relating to the S II is yet another example of how slow patent litigation is, especially in the U.S., compared to the rapidly-evolving nature of the market for wireless devices. At a time when Samsung is shipping the S III, Apple may not even be allowed to attack its predecessor, the S II, at trial. If Apple won an injunction concerning one or more of its patents, there would be considerable risk to Samsung if it infringed the same patents in pretty much the same way in other products. But Apple would need a separate lawsuit to collect damages, and Samsung could always argue that the infringement pattern differs from the one the court evaluated.

Apple asserts its four design patents against a relatively large number of Samsung products. 19 devices are accused of infringing one or more design patents. If the court insists on some more narrowing, I guess Apple will drop some of those infringement claims, even though it won’t actually take the jury too much time to look at those devices and decide the infringement question.

Two of Apple’s three software patents-in-suit (the ‘163 and ‘915 patents) are asserted against all of the Samsung devices at issue. The ‘381 (“overscroll bounce” or “rubber-banding”) patent is asseretd against most of those devices, but not against some relatively new products such as the T-Mobile and Skyrocket versions of the Galaxy S II. There could be discovery-related reasons for that, but I believe the reason is that some newer Samsung devices steer clear of infringement of that particular patent. It still makes sense for Apple to enforce the patent against older devices. It can collect damages and discourage Samsung (or other Android device makers) from infringing the ‘381 patent going forward.

The parties also submitted their witness lists. Both companies’ CEOs do not appear on those lists.

I will go into more detail on the motions in limine after the parties have filed their response briefs and, especially, after Judge Koh has decided on them. A few items are worth noting. While Apple says “[o]ut-of-court statements by Mr. Isaacson about what Mr. Jobs allegedly said to his biographer are inadmissible hearsay irrelevant to any issue in this case”, Samsung points to Judge Posner’s pretrial order that barred Apple from turning the (ultimately canceled) Chicago trial with Motorola into a popularity contest. Samsung also points to Judge Posner’s final decision and quotes from the part concerning the ‘263 “realtime API” patent (which he said does not give Apple a monopoly on video streaming). I understand that Samsung would like Judge Koh to adopt some of Judge Posner’s approaches, but the ‘263 patent is very different from the user interface and design patents Apple is asserting in the Samsung case.

Apple does not want Samsung to present “evidence or argument regarding the financial terms of Apple’s acquisition of Fingerworks”. That ยง13.5 million acquisition involved multitouch hardware patents. Samsung argues that the price Apple paid for Fingerworks and its patents shows that the value of the multitouch patents it asserts in the California litigation is rather limited, and as a result, there’s no irreparable harm and a reasonable license fee would be low. But as Apple notes, “[t]he Fingerworks acquisition did not involve any of the patents-in-suit”. Apple also explains that the Fingerworks patents were referenced by Apple hardware patents that it has already dropped from this litigation. The multitouch patents that will go to trial in this California case are software patents (they also claim hardware, but all of the innovation lies in the operating software).

One of Samsung’s motions in limine is not even opposed by Apple: Samsung wanted to ensure that Apple would no longer claim that “is presently licensed” to the allegedly standard-essential patents-in-suit. Apple apparently doesn’t intend to make that claim, as a result of Judge Koh’s ruling on a Samsung motion to dismiss Apple’s FRAND-related counterclaims. Apple will instead argue that it is entitled to a FRAND license, and one of Apple’s goals in this litigation is to receive a license on terms set by the court.

From: http://www.fosspatents.com

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