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The largely unproven patents behind the Apple v. Samsung dispute

The mobile giants accuse each other of infringing patents on their devices. Worth noting: these patents haven't passed legal muster in the past.

Apple has accused Samsung of infringing on its patent for slide-to-unlock. James Martin/CNET

SAN JOSE, Calif. -- Apple and Samsung on Tuesday made their final pitches to a jury, each arguing why it believes its rival infringed its smartphone and tablet patents. Now the question is who's going to win?

So far, Apple is 2-for-2 in its jury trials versus Samsung. A verdict in the latest case could be delivered as early as this week, when we'll find out whether that record improves to 3-for-3 or Samsung gets into the win column.

Forecasting the outcome won't be easy. While jury trials are always tough to predict, precedents with the patents being debated in this case make it difficult for even the experts to call. Still, it's enlightening to look back at the road already traveled.

Lex Machina, a Silicon Valley startup that crunches data to help companies such as Qualcomm and Hewlett-Packard change the way they approach patent lawsuits and licensing, shared historical data about the patents asserted by Apple and Samsung.

Neither of the two Samsung patents at issue -- which the Korean electronics maker acquired in 2011 -- have ever been asserted in federal court, according to Lex Machina. And only one of Apple's four patents, known as '647 or "quick links," has been extensively tested. So far, Apple has asserted that patent in seven other cases (four against Motorola, two against Nokia, and one against HTC).

However, only one case involving '647 has ever gone to a ruling, and that didn't end in Apple's favor.

That particular suit, against Motorola, was dismissed by Judge Richard Posner of US District Court for the Northern District of Illinois in a summary judgment in 2012. Posner cited a lack of evidence for either company to prove its case and dismissed all claims. He also formed a certain interpretation of the '647 patent that limited Apple's claims and resulted in much lower royalties demanded from Motorola than what Apple is asking from Samsung. (Apple wanted 60 cents per Motorola device deemed to violate its patent versus $12.49 per Samsung unit.)

An appeals court last week threw out Posner's judgment, allowing the case to proceed. At the same time, the court upheld Posner's interpretation of the '647 patent. It's unclear what will happen in the ongoing suit.

As for Apple's other patents, two of them -- '721 for slide-to-unlock and '172 for predictive text -- were asserted in cases against Motorola and HTC, according to Lex Machina. Apple and HTC settled all of their patent disputes in late 2012. The other two patents haven't been asserted in any cases, Lex Machina said.

While patent history may not be a foolproof guide for predicting the outcome of the Apple v. Samsung trial, the other jury trials between the tech giants may offer a stronger hint of how the current case will turn out -- maybe.

In 2013, Apple faced 60 patent cases as defendant. Lex Machina

"Juries tend to vote slightly emotionally in the sense that if you're expecting the jury to analyze and retain every technical point, every detail, every argument that was presented in the case, that's really not how it happens in the real world," said Pierre R. Yanney, a patent attorney and partner at Stroock & Stroock & Lavan. "It's really hard to tell which way it would go at this point."

Apple didn't respond to requests for comment for this story, and Samsung declined to comment.

Apple initially filed suit against Samsung in April 2011, accusing its rival of copying the look and feel of its iPhones and iPads. Samsung countersued, and the case went to trial in August 2012. A nine-person jury sided with Apple on a majority of its patent-infringement claims against Samsung. The jury awarded Apple $1.05 billion in damages, much less than the $2.75 billion sought by the Cupertino, Calif., company. Samsung, which asked for $421 million in its countersuit, didn't get anything.

However, US District Court Judge Lucy Koh, who is overseeing the current trial in San Jose, Calif., in March 2013 ordered a new trial to recalculate some of the damages in the case, striking $450.5 million off the original judgment against Samsung. A jury in November awarded Apple an additional $290.5 million in damages, bringing the total damages to $930 million.

What's at stake now

Almost two years after Apple and Samsung faced off in the earlier, messy patent dispute, the smartphone and tablet rivals returned to the same courtroom in San Jose to argue once again over patents before Judge Koh. Apple argued that Samsung infringed on five of its patents for the iPhone, its biggest moneymaker, and that Apple is due $2.2 billion for that infringement. Samsung wants about $6.2 million from Apple for infringing two of its software patents, and it argued that if it did infringe all of Apple's patents, it should only have to pay $38.4 million.

Although the companies are asking for damages, the case is about more than money. What's really at stake is the market for mobile devices. Apple now gets two-thirds of its sales from the iPhone and iPad; South Korea-based Samsung is the world's largest maker of smartphones; and both want to keep dominating the market. So far, Apple is ahead when it comes to litigation in the US. Samsung has been ordered to pay the iPhone maker about $930 million in damages.

Most Samsung features that Apple says infringe are items that are a part of Android, Google's mobile operating system that powers Samsung's devices. All patents except one, called "slide to unlock," are built into Android, Samsung said. Apple argues that the patent-infringement trial has nothing to do with Android. But Samsung called Apple's suit an and said Google had invented certain features before Apple patented them. It came out during the trial that Google has been helping Samsung fund its defense against a couple of Apple's patent claims because of a "Mobile Application Distribution Agreement" for Samsung to use Google's apps.

There are seven patents at issue in the latest case -- five held by Apple and two by Samsung. Apple accused Samsung of infringing US patents Nos. 5,946,647; 6,847,959; 7,761,414; 8,046,721; and 8,074,172. All relate to software features, such as quick links for '647, universal search for '959, background syncing for '414, slide-to-unlock for '721, and automatic word correction for '172. Overall, Apple argued that the patents enable ease of use and make a user interface more engaging.

Samsung, meanwhile, accused Apple of infringing US patents Nos. 6,226,449 and 5,579,239. The '449 patent, which Samsung purchased from Hitachi, involves camera and folder organization functionality. The '239 patent, which Samsung also acquired, covers video transmission functionality and could have implications for Apple's use of FaceTime.

The Samsung gadgets that Apple said infringe are the Admire, Galaxy Nexus , Galaxy Note , Galaxy Note 2, Galaxy S2, Galaxy S2 Epic 4G Touch, Galaxy S2 Skyrocket, Galaxy S3, Galaxy Tab 2 10.1, and Stratosphere. Samsung, meanwhile, said the iPhone 4 , iPhone 4S , iPhone 5, iPod Touch (fifth generation) and iPod Touch (fourth generation) all infringe. It initially accused the iPad 2 , iPad 3, iPad 4, and iPad Mini of infringing its '239 patent, but it later dropped those claims. That also reduced the amount Samsung wanted in damages to $6.2 million from its originally requested $6.8 million.

Following the conclusion of closing arguments shortly before 3 p.m. PT Tuesday, the case was handed to the jury of four men and four women. The jury -- made of tech novices, including a police officer and a retired teacher who likes salsa dancing -- will deliberate every business day until it has a verdict.