Patent lawyers doubt Apple v. Samsung will create precedent

CHICAGO - While non-lawyers might not know the ins-and-outs of the America Invents Act, most have at least some familiarity with patent law thanks to the legal battle brewing between Apple and Samsung.

The litigation between the two smartphone giants has snowballed into a series of patent disputes in at least four continents since last year, when Apple sued Samsung for patent infringement in federal court in California.

With the continuing popularity of smartphones, the case has captured front-page headlines and the attention of patent lawyers, technology junkies and millions of people who use the two company’s devices.

Despite the attention, some patent lawyers say the case might not do as much as some expect when it comes to setting precedent in the intellectual property world, one that has seen significant change in the past year with the passage of the AIA.

Deirdre Fox, a patent attorney at Scharf Banks Marmor in Chicago, said the legal battle “has gotten a lot of attention because it’s a $1 billion case,” but doesn’t expect it to reach “landmark” status.

Fox spoke during a recent continuing legal education program presented by the Illinois State Bar Association, “Apple v. Samsung: Is it the Patent Case of the Year?”

She was joined by fellow patent attorneys Eugene Friedman of Friedman & Friedman and Christopher McGeehan of McGeehan Technology Law.

McGeehan said it might not end up being a so-called landmark case, but finds the patent dispute, specifically Apple’s interface design patent claim, “very interesting.”

The case, he said, began in 2011, when Apple filed suit against Samsung. Apple makes iPhone and iPad products while Samsung makes Android devices, including the Galaxy smartphone.

Apple, which was in the middle of a patent war with Motorola at the same time, accused Samsung of infringing on three of its utility patents and four of its design patents.

Among other claims, McGeehan said Apple claimed Samsung of infringing on its “bounce back effect”, fingertip scroll and “tap to zoom” patents. The design patents Apple asserted cover the appearance and shape of its products, including “rounded corners” and “tapered edges.”

Samsung then countersued Apple, claiming that Apple infringed on its mobile-communications technologies. And within months, the two companies were litigating more than a dozen disputes around the world.

In August, a jury returned a verdict in the California case, finding that Samsung had infringed on Apple’s design and utility patents. It awarded Apple a verdict of slightly more than $1 billion in damages.

After securing the victory, Apple asked for a sales ban on more than two dozen Samsung products.

A federal judge on Dec. 17 denied the injunction request, saying that while a jury determined Samsung infringed on some of Apple’s patents, a sales ban wasn’t needed.

Apple on Dec. 20 appealed to the U.S. Court of Appeals for the Federal Circuit in an attempt to have the denial order overturned.

Fox said while she doesn’t see anything in the trial that created precedent, she did “see a lot of lessons here for trying a case,” including those dealing with jurisdiction, jury selection and time management.

“From the perspective of a lawyer, there is probably more fodder here in terms of litigation strategy than in terms of underlying substantive law,” she said.

Eugene Friedman, who spoke at the recent CLE program alongside Fox, said he found the time limit in the Apple v. Samsung case troubling. He said each party’s attorneys were given about three weeks for testimony.

“I don’t think it achieves just results,” he said, explaining three weeks didn’t give jurors much time to learn the complicated patent process.

Saying that “a single patent could take three weeks to try,” Friedman said he finds it “absolutely stunning” that attorneys didn’t have more time to explain the patents.

Fox said the Apple v. Samsung trial was “not the first case that had a fast pace. Texas is famous for its fast docket.”

The time limit of 25 hours per side “made the parties streamline the case.”

“A jury isn’t going to reach the best decision if it sits there for six months,” she said, adding that “Twenty five hours is definitely short.”

Time aside, Fox questioned whether Apple and Samsung made a mistake by leaving the juror foreman on the jury.

McGeehan said the foreman had two patents and a third one pending so he was obviously familiar with the issues.

Given that the trial took place where Apple is headquartered, he said “it’s quite likely you’re going to have people with some knowledge of the industry” on a jury.

Friedman said he “can’t see why they left him on the jury.” He was obviously favorable toward the patent holder and as foreman, had a lot of sway over his fellow jurors, Friedman said.

In cases like this, where there is “so much involved, so many patents, so many lawyers,” Friedman said “anything can happen.”

Going forward, McGeehan said “Apple is setting itself up for a long campaign against Samsung.”

Apple has terminated most of its supply agreements with Samsung, he said. Interestingly enough, McGeehan said, Samsung used to supply Apple with its LCD screens.

The type of patent war that Apple and Samsung are engaged in is a “fight we’re going to see go on and on,” Fox said.

Years from now, Fox said, the case will probably known for “having a substantial cost in the courtroom, but not derailing competition in any real way."