• Home
  • Latest
  • Fortune 500
  • Finance
  • Tech
  • Leadership
  • Lifestyle
  • Rankings
  • Multimedia

Trendingnow

1

Google cofounder Sergey Brin has spent $102 million to fight California’s proposed billionaire tax—he could owe $13 billion if he loses

2

The 'golden passport': Argentina to offer citizenship for foreigners that make a $350,000 contribution to its treasury—or invest $800,000 in its bonds

3

Where Americans are moving by generation, according to U-Haul: Boomers pick the Carolinas, Gen Z picks Texas and California

1

Google cofounder Sergey Brin has spent $102 million to fight California’s proposed billionaire tax—he could owe $13 billion if he loses

2

The 'golden passport': Argentina to offer citizenship for foreigners that make a $350,000 contribution to its treasury—or invest $800,000 in its bonds

3

Where Americans are moving by generation, according to U-Haul: Boomers pick the Carolinas, Gen Z picks Texas and California

Apple favored in 4 of 5 issues in Thursday’s Samsung hearing

By
Philip Elmer-DeWitt
Philip Elmer-DeWitt
Down Arrow Button Icon
By
Philip Elmer-DeWitt
Philip Elmer-DeWitt
Down Arrow Button Icon
December 6, 2012, 6:54 AM ET
Google source logo
Add Fortune on Google for similar content.

FORTUNE — “All eyes are on San Jose,” writes Christopher Carani in a preamble to his analysis of the big Apple v. Samsung hearing scheduled for Thursday in Judge Lucy Koh’s federal court.

“This is a major hearing in an extremely important patent case that impacts one of this country’s most critical and fastest growing industries… This case will have implications far beyond the confines of these proceedings. It will impact the industry at large and how IP [intellectual property] is used.”

Carani, a partner at the Chicago-based IP law firm McAndrews, Held & Malloy, is an design patent law expert whose pre-trial analysis of the  case proved prescient. He’s identified five major issues to be addressed Thursday, and suggests that the odds favor Apple (AAPL) in four of them.

1. Liability: Will Judge Koh set aside any of the jury’s findings on liability? The judge, Carani writes, had a chance to accept Samsung’s arguments before the trial. She didn’t. She did, however, agree with Apple on a charge the jury rejected: That Samsung’s Galaxy Tab copied the iPad’s design. There’s a chance she could play a trump card and overrule the jury on that issue.

2. Juror Misconduct: Will Judge Koh set aside the verdict and grant a new trial based upon alleged juror misconduct? A spat the jury foreman had with a third party 20 years ago may “make for good TV,” Carani writes, “but [is] unlikely to gain much traction.”

3. Injunction: Will Judge Koh enter a permanent injunction, prohibiting the sales of the 24 Samsung telephones in the U.S.  Like most observers, Carani assumes she will. But Apple’s recent settlement with HTC — in which Apple agreed to license some of its patents subject to an anti-cloning agreement — complicates things. “If no injunction, what will be her order? A compulsory license?” Carani asks. “If one feature of thousands in a smart phone is infringing, should a court ban the entire product?  This is cutting-edge law.”

4. Enhanced Damages: Will Judge Koh increase the amount of damages based on the jurors’ findings of willful infringement? In theory, the jury’s $1.05 damage award could be tripled, but that’s not likely. For one thing, design patent awards can’t be tripled. Any damage increase, Carani writes, is likely to be modest.

5. Supplemental Damages and Interest: Will Judge Koh tack on more $$ for supplemental damages (i.e. infringing sales since jury’s finding) and prejudgment and post-judgment interest. Carani thinks so. Post-judgement interest is mandatory, and denying pre-judgement interest would be unusual.

All in all, Carani believes things look better for Apple than the commentary of its harshest critics — particularly at Groklaw — have suggested.

Judge Koh could rule on these issues before the end of the year, but early 2013 is more likely.

About the Author
By Philip Elmer-DeWitt
See full bioRight Arrow Button Icon

Latest in


Most Popular

Fortune Secondary Logo
Rankings
  • 100 Best Companies
  • Fortune 500
  • Global 500
  • Fortune 500 Europe
  • Most Powerful Women
  • World's Most Admired Companies
  • See All Rankings
  • Lists Calendar
Sections
  • Finance
  • Fortune Crypto
  • Features
  • Leadership
  • Health
  • Commentary
  • Success
  • Retail
  • Mpw
  • Tech
  • Lifestyle
  • CEO Initiative
  • Asia
  • Politics
  • Conferences
  • Europe
  • Newsletters
  • Personal Finance
  • Environment
  • Magazine
  • Education
Customer Support
  • Frequently Asked Questions
  • Customer Service Portal
  • Privacy Policy
  • Terms Of Use
  • Single Issues For Purchase
  • International Print
Commercial Services
  • Advertising
  • Fortune Brand Studio
  • Fortune Analytics
  • Fortune Conferences
  • Business Development
  • Group Subscriptions
About Us
  • About Us
  • Press Center
  • Work At Fortune
  • Terms And Conditions
  • Site Map
  • About Us
  • Press Center
  • Work At Fortune
  • Terms And Conditions
  • Site Map
  • Facebook icon
  • Twitter icon
  • LinkedIn icon
  • Instagram icon
  • TikTok icon
  • YouTube icon

    Latest in


    Most Popular

    © 2026 Fortune Media IP Limited. All Rights Reserved. Use of this site constitutes acceptance of our Terms of Use and Privacy Policy | CA Notice at Collection and Privacy Notice | Do Not Sell/Share My Personal Information
    FORTUNE is a trademark of Fortune Media IP Limited, registered in the U.S. and other countries. FORTUNE may receive compensation for some links to products and services on this website. Offers may be subject to change without notice.