Apple, Samsung Lawyers Gear Up for Retrial of the Century

, The Litigation Daily


Julia Love writes for The Recorder, an American Lawyer affiliate.

SAN FRANCISCO — If U.S. District Judge Lucy Koh has her way, Apple, Samsung and their teams of elite lawyers will spend next week reliving the patent trial of the century.

The parties are reuniting in a San Jose courtroom to make their cases to a jury once more, this time dueling over how much Samsung should have to pay Apple for copying several of its patented features. Koh ordered the retrial in March, finding the original jury's landmark $1.05 billion award to Apple was tainted by an improper notice date. She has insisted that the new trial must be a virtual replay of the first and barred the parties from introducing new evidence or legal theories.

But some changes cannot be helped. Chicago accountant Julie Davis will be stepping in for Apple's original damages expert, Terry Musika, who died in December. And though they are sticking with the same firms, both tech giants have adjusted their legal lineups.

Morrison & Foerster partner Harold McElhinny is leading the retrial team for Apple, joined by William Lee of Wilmer Cutler Pickering Hale and Dorr, another fixture of the first trial. But Michael Jacobs, who led the charge for Apple with McElhinny last fall, will be on the other side of the country in Wilmington, where he is scheduled to argue a motion for summary judgment for another client.

Meanwhile, Quinn Emanuel Urquhart & Sullivan partner William Price is moving into the driver's seat for Samsung. Quinn partner Charles Verhoeven, who gave openings and closings for the Korean company in its first round with Apple, has been absent from pretrial conferences. Firm founder John Quinn wrote in an email that he does not expect to return for the retrial either.

And although infringement and validity have already been decided, lawyers on both sides are fighting to revise Samsung's bill in their favor.

"The judge cut back on the number of Samsung sales that are at issue, which argues for less money," Durie Tangri partner Mark Lemley, a Stanford law professor, wrote in an email. "But there is some reason to think that, believe it or not, the jury actually undercalculated the damages Apple was owed for infringement of its design patents. So the amount awarded could actually increase on remand."

In her March 1 order, Koh subtracted $450.5 million from Apple's billion-dollar award, ruling that the jury had improperly calculated infringement damages for certain Samsung phones using sales that occurred before Samsung was given notice. (She later reversed her order as to one product, handing $40.5 million back to Apple.) Jurors will now decide how much Samsung owes Apple for those 13 devices on the basis of new notice dates.

Koh's order was seen as a win for Samsung. And yet Apple could walk away with a fatter award if the new jury assesses damages at a steeper rate, IP litigators say. The first jury awarded just a fraction of the $2.75 billion that the Silicon Valley stalwart asked for.

Still, Koh's determination to restage the first trial means that the parties will be bound by their prior strategic decisions, both large and small. At a pretrial conference on Nov. 5, she shot down McElhinny's request to bring in a witness that Samsung wanted to call for the first trial.

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