Apple and Samsung Maneuver How to Handle 2nd Damages Trial - Now or After Appeal? ~pj

Every time I look away for a bit from the Apple v. Samsung post-trial motions saga, they file a zillion more. So I have them all for you, bringing us up to date since the last time we looked in. And I'll explain a little bit, so you'll be fortified against some peculiar spin in a side show championed by Fortune. But the issues are much deeper and more nuanced than Fortune seems to notice, as I'll try to show you.

The current moves result from Judge Lucy Koh's ruling ordering a new trial on 14 Samsung products to recalculate the damages owed to Apple, because, she ruled, the jury awarded damages on those products based on a legally impermissible theory. In the vernacular, they goofed, so the math was wrong. It was so messed up by the jury, and so untraceable as to methodology followed, she couldn't fix it for them but rather decided to order a new damages trial instead. But on other products and on Samsung's counterclaims, she said the jury's rulings should stand, subject to appeal.

It's the new trial in particular that is causing strategic maneuvering. When should it happen? The judge encouraged the parties to wait until after the appeals court rules on whether or not there were errors in the first trial. Except for the 14 products, the rest is ready to be ordered as a partial final judgment. Samsung would like the judge to do exactly that, while also ordering a stay pending the appeal, saying it makes sense to wait in that "the Federal Circuit's decision will shape the course of any new trial, including issues related to patent validity, trade dress dilution, liability instructions and the proper measure of damages."

But Apple wants to go forward with the damages trial right away, before these issues can be resolved. Ask yourself why.