|By Maureen O'Gara||
|April 8, 2013 07:45 AM EDT||
Samsung rushed in to tell District Court Judge Lucy Koh the other day that the US Patent and Trademark Office had found a major claim in Apple's so-called Rubber-banding patent invalid (US Patent No. 7,469,381).
The PTO said it wasn't novel based on prior art.
The decision is a so-called Final Office Action, which - in the bureaucratic scheme of things - isn't really final until Apple exhausts all appeals available, a process likely to take years.
Last August a jury found the patent valid and infringed by Samsung. Then a PTO re-examination found it invalid in what they call a First Office Action.
The PTO has found three claims in the patent valid and tossed out 17 other claims including the one important in Apple's infringement case against Samsung, claim 19.
It could ultimately impact Apple's jury-awarded damages and FOSS Patents says it could require a new trial because the original decision was based on product not patents.
There's a move by Google and Motorola Mobility to invalidate the rubber-band in Europe too.
Apple claims more than 20 Samsung phones and two tablets infringe its 381 "bounce-back" patent.
Meanwhile, Samsung acknowledged in another filing late Friday that Apple could get more than the $1.05 billion awarded by a California jury last year if there's new trial.
In fact, $1.05 billion only represents 40% of what Apple could have gotten on its post-Daubert claims so Samsung could be out like $2.5 billion - and it doesn't quite frankly matter that the judge just corrected the jury's arithmetic and sliced $450 million off the award.
Another jury could, as they say, recapitulate.
Apple's legal strategy, however, is still aimed at getting the injunction it always wanted against Samsung as quickly as possible, not the money, which is why it's contesting Samsung's bid for a partial final judgment on the 14 products where the damages verdict is still intact.
It says a partial judgment is only applicable when claims are completely decided.
Samsung doesn't want the ordered new trial to focus exclusively on damages. It basically wants the whole thing reheard. Apple objects in order to get heard by the Federal Circuit sooner.
According to FOSS patents Apple might embarrass Judge Koh into the decision it wants by arguing that a partial final judgment is premature and likely to be overturned particularly because of her $85 million error over at least the S II AT&T phone.
FOSS says done Apple's way a new jury will never know about it.