“There will be other pretrial orders, and also some further briefing on certain issues in the build-up to another pretrial conference on November 5, Florian Mueller writes for Foss Patent. “For example, the court appears inclined not to allow references to the Apple-HTC license agreement, but Samsung still has the chance to make a case for why such references should be allowed. The incomplete nature of the Friday order and limited access to information on the parties’ damages calculations make it hard, and in some respects impossible, to assess who primarily benefits from the order. As far as I can see, it appears pretty balanced. Both parties have prevailed on various items that matter to them. I’m now going to focus on two of Apple’s victories for only one reason: the relevance of those victories and the topics they relate to are easily understood from the outside.”
One of the issues in this upcoming trial is that Samsung does not want Apple to use this platform as a smear campaign to brand them.
Mueller said: Samsung alleged that Apple wants to “smear” it on copying and “inflame the jury” in the upcoming damages retrial with allegations of copying. Apple argued that it’s key for the jury to learn about anything relevant to demand, such as “whether it is more probable than not that, in the absence of infringing Samsung products, consumers would have purchased more iPhones and iPads”. Apple also made the following statement on the distinction between competition and copying:
“Apple thinks competition is great, when each competitor comes up with its own unique ideas and the customer decides what they like better. Copying is not fair competition, because when one company copies the ideas of another company, they are trading off all the good will and investment that the second company built on its own ideas, and taking all that investment for itself. Samsung’s actions have had a large impact on the smartphone market, by diminishing the value of Apple’s ideas, particularly its unique designs, and negatively impacting Apple’s sales, both by initial purchasers and because purchasers enter the Samsung ecosystem rather than Apple’s.”
Judge Koh has denied Samsung’s motion to exclude evidence of “copying” without prejudice (meaning that case-by-case objections at trial are still permitted). It was probably a smart move by Apple to clarify that its damages expert was not going to use the word “copying” anyway, demonstrating a focus on facts and an intent not to “smear” Samsung.
There is no substitute for innovation — it is a key driver for growth. But relying on imitation is a losing strategy as well, and Samsung has been heavily imitating Apple in many respects.