Apple, Samsung once again haggle over damages

Apple and Samsung head back to court to hash out some of the remaining details in the case that was decided largely in Apple's favor.

The Robert Peckham courthouse in San Jose, California.
The Robert Peckham courthouse in San Jose, California. Josh Lowensohn/CNET

SAN JOSE, Calif. -- Depending on who you ask, the $1.05 billion in damages awarded to Apple against Samsung was either too much or too little, but both companies today had much to say about some of the details in how that decision was reached.

At the heart of it, there's a disagreement on Samsung's side about how the jury came to decide the damages for the Prevail, one of Samsung's devices that was found to infringe, and made up $57.9 million of the tally. The only problem, Samsung argues, is that the jury was making up the tally based on bad projections that not only included Samsung's profits on the device, but also Apple's lost profits.

If that number ends up getting changed, it could lead to a retrial between the two companies in the Ninth Circuit court, Samsung's lawyers said here. Citing a case between Verizon and Vonage, Samsung argued that there had been a failure to separate the types of damages between patent and product, something that would result in a retrial under Ninth Circuit court laws.

The issue is just one of many at a hearing that comes some three and a half months since the verdict, which landed almost entirely in Apple's favor. The two companies have since filed more than 250 items of paperwork, including an effort from Samsung to get a retrial, citing what the company believed was misconduct by the jury foreman.

That jury decision, which U.S. District Court Judge Lucy Koh today referred to as "precise," was under close examination. Samsung's attorney Charles Verhoeven, who argued much of the trial for the company, said that the jury did not have enough information in some cases, to make good calls on whether certain devices infringed on parts of patents.

"That the jury didn't have enough information to distinguish between the products, ties back to the way this case was tried," Verhoeven argued, saying that Apple didn't do a good enough job of going through through how each of Samsung's products infringed certain patents.

Also at issue is if the total damages amount can be tweaked based on when Samsung was made aware of infringing, something that affects lost royalty rates. There's a 14-month span between when Apple approached Samsung with its 2010 presentation accusing Samsung of infringing, and when an amended lawsuit was filed last June. In Samsung's case, that could cut the damages tally by more than half if the court decides to make adjustments.

"There has never been a case in which the evidence was so strong and a specific product was targeted, copied, and by a person who claimed to have patents, and did it to have an advantage" argued Apple attorney Harold McElhinny. "That is willfull blindness."

Since the August verdict, the two companies have continued to escalate a separate lawsuit against one another, set to go to trial in 2014. That spat includes more recent devices on both sides, including Apple's iPhone 5 and iPad Mini, and Samsung's Galaxy S3 and S3 Mini.

The hearing is set to go the rest of the day. Stay tuned for additional decisions.

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