Lost profits ineligible as damages theory for several Apple patents in Samsung retrial

“Shortly after the start of the Apple v. Samsung limited damages retrial in the Northern District of California I concluded from various reports that ‘modesty and humility reign,'” Florian Müller writes for FOSS Patents. “The court ‘only’ allowed Apple to present a damages claim of $380 million to the jury, slightly short of the corresponding portion of last year’s award ($410 million), and Samsung is pretending contrition in an effort to propitiate the jury.”

“Apple’s claim became publicly known only when the trial started. Before trial, it was just known that Samsung complained about Apple seeking “vastly greater” damages, allegedly ‘hundreds of millions’ more than the year before,” Müller writes. “It was also discoverable that Samsung’s pretrial motions had succeeded in part to constrain Apple’s ability to seek damages. The quantitative impact was unclear, however.”

“Late on Friday, Judge Koh entered a motion on certain motions for judgment as a matter of law, and that order, in conjunction with a couple of previous decisions, suggests to me that the most important legal question on which Samsung prevailed (subject to an appeal) is about the underlying, hypothetical assumption of when Samsung would have begun to avoid infringement of the infringed patents: when actual infringement began or when it received notice of Apple’s infringement claims,” Müller writes. “For example, the designaround period for the relevant design patents is considered to be one month. The question is when that month would begin.”

“The district court agreed with Samsung that Apple’s claim of lost profits due to Samsung’s infringement must be based on the assumption that Samsung’s designaround efforts would have started when infringement began, not when Apple notified it of its infringement claims,” Müller writes. “On this basis, Apple can seek lost profits only with respect to the ‘915 pinch-to-zoom API patent, but not with respect to four other patents (two design patents, the rubber-banding ‘381 patent, and the tap-to-zoom-and-navigate ‘163 patent) that Samsung would have hypothetically worked around even before it had notice, i.e., before the relevant damages period.”

Read more in the full article here.

MacDailyNews Take: It’s difficult to imagine Apple ever being properly compensated for the damage inflicted due to the slavish copier Samsung’s serial IP thefts.


  1. They should screen the judge just as intensely as they screened the jury. This Kuh C*** seems to blatantly be as biased against Apple inc. as the hired Astroturfers that Samsung hires. I sure hope to God she is no where near the trial that starts in late march. As well, an all out investigation towards Koh needs to take place.

    1. … are a P****? Your limited vocabulary suggests your comprehension may be similarly … limited. Yes, Apple could have done a better job in judge-shopping.
      We have had people here – many people here – who have commented on the exaggerated claims made against Apple in similar suits and suggesting they should, at the very least, be much smaller. Now this P**** comes in and throws the C**** word at a jurist who seeks to keep the financial burden of a similar suit smaller than the plaintiff would have asked for.

        1. … Because you agree that you don’t like the judge’s decision? I’m not sure I do either, but that’s no good reason to make sexually derogatory comments about her. What stupid – and irrelevant – comment would “Hmmmm” have made were the judge a HE? And, who here has NOT criticized the excessive size of claims against “deep-pockets” Apple?

          1. Some vehement misogynist comments have shown up around here, and have been obscenely defended before. Very sad and pathetic. No doubt I’ll be flamed just for pointing out these woman-phobic rants.

            Meanwhile, however, Judge Koh has proven herself to be incompetent if not crooked. As I’ve ranted myself a few times, this entire retrial is Judge Koh’s fault, and no one else’s. If she had competently told the jury how to award damages, none of this current rubbish would be occurring. I’d personally enjoy putting HER on trial at this point. Therefore, I understand why people want to sling derogatory insults at here. But as usual, it’s best to throw the facts in her face, not abstract hate.

  2. I think most of you should realize that no one is going to come to Apple’s rescue. Apple has made an awful lot of enemies in the tech industry and Apple was absolutely terrible when it came to spending money on lobbying. A company the size and wealth of Apple could have made a lot of friends to protect them. Instead, no court system is going to give Apple any consideration. Google was smart to spend lots of money on lobbying and putting money into the right people’s hands. Anything related to Android will be protected. That’s why Google has become the high tech darling of Wall Street and Apple is being left hung out to dry. Apple’s IP will not be protected and at most they’ll get some token payment from Samsung after that company made billions of dollars from IP theft.

    Apple has more than enough money to bribe officials but chooses to do everything the hard way. I can assure you if Apple had bribed the top people at China Mobile, they would have already had official iPhones on the carrier by now. Apple just doesn’t understand how to play the game and they’re being simply buried in red tape. It’s a rather corrupt world and if you’re willing to pay, things will go much more smoothly. Now Apple has to travel a rocky road for everything. Nobody cares about honesty or morality. Not Wall Street or even the so-called justice system.

    Because Frank Sinatra was happily singing, “I did it my way” he probably had more Mafia connections than any popular singer around. Apple would be smart to get better connected if they expect to hold onto anything they have.

    1. Apple is under investigation in Italy for tax evasion. Its IP consists of a rounded rectangle and a bounce that any programmer cut their teeth on. Now their R&D involves lifting features from Android that were in the latter years ago. People see them as petulant and litigious, greedy and arrogant. What is not to like?

  3. So the deal may be, if you don’t KNOW you are copying, you are not responsible for your copying until you are told you are copying and that you have a reasonable amount of time to do a work around? So then as SOON as a new product comes out EVERY competitor MUST write a letter to the offender and tell them they are offending JUST IN CASE they are offending so that they can get a maximum of benefit from the lawsuit? And Apple wants almost $100 per phone in lost profit? Wow, this is above my pay grade!

  4. So let me get this straight.
    Samsung doesn’t have to pay for loss of profit, because they were theoretically working on a workaround for a patent before they knew they were infringing it?
    how did judge Koh buy this completely illogical argument?

    Judge Koh just strikes me as lazy rather than biased.
    She is looking for ways to reduce the scope of the case , and any argument that accomplishes this will do.

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