Originally Posted by KDarling
In this case, she felt that anyone with knowledge of prior art would've objectively believed that Apple's touch patents could be invalid, and thus there can be no extra damages for willfulness over and above the infringement awards.
Note that it does not matter for this part, whether Samsung thought they were invalid or not. It only matters what the judge thinks an objective observer would think.
So that knocked out extra damages for the patents.
As for trade dress award enhancement, that is not done as punishment, but only to compensate for any extra loss that the jury award misses.
Here, the simple jury award form that Apple pushed so hard, later came back to haunt them. By lumping all awards together for each device, Apple could not later claim that the jury had not considered everything together in its award amounts.
Thus, no extra damages for trade dress, either.
So the original jury awards were left as they were, which was still much more than Apple themselves had valued their IP at... something most people don't realize.
Are you referring to this current judgement?
If so, I re-read it again and se nothing about what you stated above. Actually Apple will be awarded supplemental damages. Ko just did not dise with the way Apple wanted to calculate supplemental damages (As a proportion of all infringing devices v. the exact amount of sales for each infringing device that was sold sold after the original trial). However, since there are still appeals and the fact that sales numbers on these devices are not know or avail to the court to make this determination, she will wait until the appeal process completes before hearing evidence on this.
Also, I see nothing about the award form causing an issue or affecting how any of her determinations were made. The issue's for a re-trial on damages being necessary were two fold:
1) The Galaxy Previal (I incorrectly mentioned the Samsung Fascinate above) was only found to infringe on utility patents. However, her determination was that the award was made on lost profits or included lost profits in the calculation. Lost profits are not legally permitted for solely a utility patent infringement. Since it was much higher then the compensation Apple requested, the fact Apple did not provide an amount for a reasonable Royalty, and since there is no way to determine what would be considered the excess (i.e. amount just attributed to lost profits), a new trial was ordered to determine damages for this item.
2) As far as the other damages that were set aside, it was due to the fact that Apple's expert stated starting damage amounts for ALL infringing devices/patents based on the 1st notice date on Aug 4, 2010. However, her determination was that Apple did disclose one specific patent on that date and she could not find any proof that Samsung was told specifically that they were infringing on the other patents at that time. Only that Apple mentioned that they were infringing on other patents (not specifically what those patents were) until April 15, 2011. Since the Experts numbers were based on the Aug 4, 2010 start date and the fact that the jury's award was an exact percentage to the dollar, based on those figures, the Jury's award took into account infringement for certain patents during the period where judge Ko determined there wasn't any infringement due to insufficient notice (Between 2010-2011). Since Apple's expert did not break down sales figures and damages by Samsungs devices within this period (were only broken down by fiscal quarter), there was no way for Ko to make the correction. Thus, a new trial for damages on those devices.
3) Apple asked for extra damages wich were denied. The basis was that Apple stated that the award should be increased since the Jury awarded less then the amount by Samsungs own expert. It was only denied because there is a longstanding rule that the 7th amendment prohibits judicial increases to awards made by a jury. In addition, the Jury is not bound by the amounts given by any expert.
In regard to #2, there could be good reason for the lack of any proof of earlier notification. Did Judge Ko and other forget about all the document shredding Samsung was doing prior to the trial? On this alone she would of had reason to side with Apple and deny Samsung their motion. IMO, the onus should have been on Samsung to prove in some way that they were never notified since the court could have claimed that there was a high probability that they destroyed evidence to the contrary.
Also, Lucy Ko's actions of making both parties pair down their cases played a part in this as well. I would have figured that first there would have been determinations made as to the each patent and their corresponding "infringement dates". As well as hearings on sales figures etc within those dates for both sides. Then there would have been a trial to determine if in fact either party infringed on each other patents and the award dates and sales figures would have been pre-determined from the prior hearings.