In a saga of epic proportions, sprawling across the globe, Apple and Samsung have been duking it out over smartphone design and features.Apple vs Samsung phones

That’s billion, with a “B”

District Judge Lucy Koh of California entered judgment in favor of Apple to the tune of $1 billion. That’s billion, with a “B.”

On appeal, the U.S. Court of Appeals for the Federal Circuit knocked out half of that award—the half based on trade dress—and affirmed the half based on design patents.

OK, Samsung, fork it over

The damages for design patent infringement were determined according to the following formula.

How much profit did Samsung make on the infringing sales?

Half a billion?

O.K., Samsung, fork it over to Apple.

That’s the part of the judgment that was affirmed by the Federal Circuit in May. Here’s the unanimous opinion of the three-judge panel.

But lawyers, in their best imitation of James Bond, never say die.

Samsung is back in Court, asking the Federal Circuit for rehearing en banc. They don’t want to pay half a billion to Apple. They’re asking a majority of the Court (that would be 7 of 12) to rehear the appeal, hoping for a better result.

Samsung: Never say die

In the last few days, there have been hundreds of media reports as follows.

Silicon Valley tech giants Google, Facebook, eBay and others have joined in an amicus curiae (friend of the court) brief urging the Court to give Samsung a mulligan.

There are two points missing from the news stories.

Copy or die; now pay up

First, on the merits, the fact is that Apple really did come up with a radical new design back in 2007. It’s hard to remember—but before Apple, cellphones were clunky. See attached photo of trial exhibit contrasting Apple with four old Samsung phones. The old phones had lots of buttons. The screens were small. Yes, some of that is functional, but some of it is aesthetic, i.e., the stuff of design and design patents. And Samsung did immediately embrace that new sleek design. They had to. Otherwise they would have gotten killed in the marketplace. (Where’s Nokia? Blackberry? Motorola?) And they did make half a billion dollars in profit as a result. And the law permitted the District Judge to make them pay.

Rehearing? Almost never granted

Secondly, petitions for rehearing en banc are rarely granted. The question isn’t whether the District Court could have awarded lower damages. It isn’t whether the Federal Circuit panel of three judges could have reversed on the issue of design patent damages. No, the bar is much higher. Samsung and friends must convince 7 of 12 Federal Circuit judges that the three who decided the appeal failed to understand and apply the basic legal principles.

Now, here’s the thing. All of the Federal Circuit judges already know what the panel decided. They watched as the panel opinion was handed down and published. And all but the newest appointee were on the Court when that happened. If they didn’t like the panel opinion, they had the chance to speak up, internally. Any one of those judges could have (and perhaps did) ask for en banc hearing. We may never know: Those internal communications are confidential. What we do know is that the panel opinion was released without the Court taking it up en banc.

Very few cases are decided en banc. For one thing, it’s inefficient. And some of those rare cases are taken en banc because of the internal review of opinions before they are released. That didn’t happen then. It probably won’t happen now.

My prediction is this. Samsung’s petition for rehearing en banc will be denied. They might file a petition for certiorari in the Supreme Court. That also will be denied.

How much?

Samsung: Get out your checkbook.