|By Maureen O'Gara||
|July 25, 2012 11:00 AM EDT||
Ahead of the great Apple v Samsung Android trial that starts Monday in California Apple filed a damages claim with the court seeking $2.525 billion from Samsung.
Good ole reliable FOSS Patents got to it first and isolated the key passage. It reads:
"Samsung adopted as its number one goal to [redacted]' in the smartphone and tablet markets, and it chose to compete by copying Apple. Samsung's infringing sales have enabled Samsung to overtake Apple as the largest manufacturer of smartphones in the world. Samsung has reaped billions of dollars in profits and caused Apple to lose hundreds of millions of dollars through its violation of Apple's intellectual property. Apple conservatively estimates that as of March 31, 2012, Samsung has been unjustly enriched by about [redacted; presumably $2 billion] and has additionally cost Apple about $500 million in lost profits. Apple also conservatively estimates that it is entitled to over $25 million in reasonable royalty damages on the proportionately small set of remaining sales for which it cannot obtain an award of Samsung's profits or Apple's own lost profits, for a combined total of $2.525 billion."
Apple wants Samsung to disgorge $2 billion in profits for unjustly infringing design patents that make the iPhone the iPhone and the iPad the iPad.
The number obviously covers past infringement so it could theoretically go up and parts of it, the blog says, could be tripled for willful infringement.
If Apple doesn't get a permanent injunction against Samsung's copying - its truly preferred solution - then wants a "reasonable" per-unit royalty, which it figures would be $2.02 for its "overscroll bounce" (or "rubber-banding") ‘318 patent; $3.10 for its "scrolling API" ‘915 patent; $2.02 for its "tap to zoom and navigate" ‘163 patent; and $24 for the use of any of Apple's design patents or trade dress rights.
Apple's people did a study that says buyers are willing to pay $90-$100 more than "the base price of a $199 smartphone and a $499 tablet, respectively, to obtain the patented features covered by Apple's utility patents."
After some winnowing, Samsung's counterclaims are now based on two standard-essential patents (SEPs) and three non-standard-essential patents. As FOSS points out the SEPs raise antitrust issues, especially since Samsung wants 2.4% of Apple sales for them although it's obliged to license them on FRAND terms.
Apple figures based on other SEP deals it's done and the market value of baseband chips that "to the extent that Samsung is entitled to any remedy, its FRAND damages cannot exceed $0.0049 per unit for each infringed patent."
On Monday Reuters reported that Apple CEO Tim Cook and Samsung vice-chairman Choi Gee-sung met last week and that their attempt to thrash out a settlement failed. Now we know how far apart they are.
FOSS says "Even though parties obviously take extreme positions when they go to court, there are too many indications that Samsung hopes to be able to command outlandish royalties for its FRAND-pledged SEPs in order to gain leverage in a cross-license deal with Apple."
The blog also says when Apple and Samsung eventually settle and Samsung will have to pay "a significant per-unit royalty rate and it will have to accept restrictions in terms of which Apple patents it's allowed to use and in which ways. Samsung will ultimately get paid for its SEPs, but the amount will be tiny compared to what Samsung owes Apple if it chooses to license its non-SEPs."