|Gardere Technology Attorney Peter Vogel's Commentary Published in The E-Commerce Times |
Email Trashing May Cost Samsung More Than $1B
|September 12, 2012 11:05 pm|
By E-Commerce Times columnist Peter S. Vogel who is a trial partner at Gardere Wynne Sewell, where he is chair of the eDiscovery Team and Chair of the Technology Industry Team. Before practicing law, he was a systems programmer on mainframes, received a masters in computer science, and taught graduate courses in information systems and operations research. His blog covers contemporary technology topics.
The verdict may be in on Apple v. Samsung, but the story hasn't reached its end. Appeals in patent infringement cases are unlike other civil trial appeals. Rather than rely on the jury verdict, the Federal Circuit evaluates the patents on its own in what is referred to as a "de novo" review. This process effectively gives patent infringement litigants an opportunity to retry their cases on appeal.
If Apple gets its way, Samsung will no longer be able to sell any cell devices that it claims infringe on Apple's patents. This could be devastating, since as of July 2012, Samsung owned 25.6 percent and Apple just 6.3 percent of the mobile market, according to a comScore report. However, the Apple v. Samsung battles will continue for quite some time, and just because the jury gave a US$1 billion verdict to Apple in California does not mean the end is near.
Lawyers will be filing motions regarding the jury verdict: Apple to affirm and try to force Samsung to stop selling infringing products, and Samsung to set aside the jury verdict for a myriad of reasons. Regardless of how the judge rules on each of these issues, surely the case will be appealed to the U.S. Federal Circuit.
Based on the evidence presented to the jury and the adverse inference of destroyed evidence, Samsung is clearly at risk in its patent battles with Apple.
However, the trial judge has not ruled on post-trial motions, and the Federal Circuit Court of Appeals has not received the case and will not until all the post-trial motions are ruled on. That could take months or years.
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