Next step for Samsung after losing v. Apple? Take it to D.C.
Samsung has a very low legal barrier to overcome to challenge the Apple victory in the District Court of Northern California: it needs to show “substantial evidence” that the decision was incorrect. Substantial evidence is evidence that a reasonable person could accept as adequate to support the appellant’s conclusion. This is lower than the civil standard for a verdict and is famously defined as “more than a scintilla but less than preponderance.” Basically, if you’ve got some evidence that you think the court didn’t give adequate hearing to, you’re in.
On August 1st Samsung lawyers Quinn Emmanuel released to the media further supporting evidence which the District Court judge had refused, thereby cementing a case for appeal on substantial evidence while making an arguably effective appeal for public sympathy as an underdog versus colossus Apple. Not bad for a huge Korean conglomerate with the world’s 2nd largest patent portfolio.
What do I think of the ruling? (the jury verdict is here)
For one, I’m not a fan of competition through litigation and moreover, a lot of questionable “soft” patents (design, software functionalities, business processes) were granted over the past 10-15 years—at least before Dave Kappos took the helm at USPTO and repaired a dysfunctional and understaffed agency.
That said, I think that both Apple and Samsung have a case to make. Samsung has patents (notably the ‘460 patent) that look like they may have been infringed and that the jury simply decided to ignore. Moreover, they checked “Y” next to every Samsung smartphone variant on the list they were submitted.
I find it hard to believe that the jury could have tested each of the phones versus an iPhone. For example, if you look at the functionality of the Nexus S 4G, it is completely different from an iPhone. No central home button, widgetized homescreens, an app list that has to be called up specifically to be accessed and a notification bar that Apple arguably copped for iOS 5. However, the Galaxy S, with its Samsung TouchWiz layer on the Android and the central home button is arguably very similar to iPhones 1-3.
So what do I think Samsung will do? I think it needs to immediately appeal to the Court of Appeals for the Federal Circuit in Washington. Nothing against Judge Koh or the 9th District, but I don’t think that Samsung ultimately got a fair hearing or a fair verdict with this particular court and jury (which apparently included some people familiar with engineering and design). The case should be retried by a court with a stronger expertise in patent cases.
Updated: Apple v. Samsung jury foreman and others speak out on how they reached the ruling. The pitiful level of analysis is breathtaking. Great reporting from FoxNews.
Updated 2: Keith Sawyer’s Innovation & Creativity blog has a great post expanding on some of the points raised here.