Christopher Carani

Apple favored in 4 of 5 issues in Thursday's Samsung hearing

December 6, 2012: 6:54 AM ET

The odds are stacked against Samsung on jury misconduct, liability, injunctions etc.

376486778150FORTUNE -- "All eyes are on San Jose," writes Christopher Carani in a preamble to his analysis of the big Apple v. Samsung hearing scheduled for Thursday in Judge Lucy Koh's federal court.

"This is a major hearing in an extremely important patent case that impacts one of this country's most critical and fastest growing industries... This case will have implications far beyond the confines of these proceedings. It will impact the industry at large and how IP [intellectual property] is used."

Carani, a partner at the Chicago-based IP law firm McAndrews, Held & Malloy, is an design patent law expert whose pre-trial analysis of the  case proved prescient. He's identified five major issues to be addressed Thursday, and suggests that the odds favor Apple (AAPL) in four of them.

1. Liability: Will Judge Koh set aside any of the jury's findings on liability? The judge, Carani writes, had a chance to accept Samsung's arguments before the trial. She didn't. She did, however, agree with Apple on a charge the jury rejected: That Samsung's Galaxy Tab copied the iPad's design. There's a chance she could play a trump card and overrule the jury on that issue.

2. Juror Misconduct: Will Judge Koh set aside the verdict and grant a new trial based upon alleged juror misconduct? A spat the jury foreman had with a third party 20 years ago may "make for good TV," Carani writes, "but [is] unlikely to gain much traction."

3. Injunction: Will Judge Koh enter a permanent injunction, prohibiting the sales of the 24 Samsung telephones in the U.S.  Like most observers, Carani assumes she will. But Apple's recent settlement with HTC -- in which Apple agreed to license some of its patents subject to an anti-cloning agreement -- complicates things. "If no injunction, what will be her order? A compulsory license?" Carani asks. "If one feature of thousands in a smart phone is infringing, should a court ban the entire product?  This is cutting-edge law."

4. Enhanced Damages: Will Judge Koh increase the amount of damages based on the jurors' findings of willful infringement? In theory, the jury's $1.05 damage award could be tripled, but that's not likely. For one thing, design patent awards can't be tripled. Any damage increase, Carani writes, is likely to be modest.

5. Supplemental Damages and Interest: Will Judge Koh tack on more $$ for supplemental damages (i.e. infringing sales since jury's finding) and prejudgment and post-judgment interest. Carani thinks so. Post-judgement interest is mandatory, and denying pre-judgement interest would be unusual.

All in all, Carani believes things look better for Apple than the commentary of its harshest critics -- particularly at Groklaw -- have suggested.

Judge Koh could rule on these issues before the end of the year, but early 2013 is more likely.

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