Judge Koh's Order in Apple v Samsung: No Stay on Damages Retrial, Unless... ~pj

Judge Lucy Koh has reached a decision [PDF] on going forward on the retrial on damages in Apple v. Samsung. Trial is set now for November 12th, on damages only, same Daubert rulings, motions in limine, discovery disputes, and evidentiary objections ruled on the same as the first trial, meaning if she made mistakes in the first trial, they'll be repeated in the retrial. "The parties may not relitigate these issues," she writes. So it's all for the appeal court to figure out. She isn't interested in reviewing all that. So if the appeals court orders a third trial, that's the way it will have to be. She wants to keep the damages retrial short and sweet and limited to just one issue, and then send it on its way to appeal, so no new theories and no new fact discovery. There is a schedule for expert discovery. The jury will be 8 people, with the parties' given three peremptory challenges each. Apple asked for the very same jury instructions, but she says they will get together on October 17th to discuss "how to present infringement and validity findings" to the new jury. Other than that, she is silent on that point.

There is one proviso. If the USPTO does not reopen the reexaminations on the two Apple patents that so far it has found invalid, then Samsung can submit a new motion asking for a stay, but that's only meaningful if the USPTO acts faster than the trial. If not, the damages issues will include the currently invalided patents. No, I can't explain the logic. I'm like Alice in WonderLand watching this.

It's mostly tilting Apple's way at the moment, with a Hail Mary pass possible for Samsung, if certain milestones at the USPTO happen quickly enough. As I've told you many times, US patent law favors patent holders, not defendants. That's one reason trolls can do what they do, bully victims into paying up rather than risking the uncertain outcomes of expensive trials that can illogically go against you even when the trial centers on stupid patents that shouldn't have issued in the first place, because once issued there is a presumption the patent is valid. Even if you win at trial and the patent is invalidated or the jury decides you didn't infringe, nobody pays you back all the millions you've spent defending yourself. Your US patent law at work. How do you like it?