Bitter Apple-Samsung feud goes before a jury once again

SAN JOSE, CALIF. – In what has become a ritual, U.S. District Judge Lucy Koh last week finished off a pretrial hearing in the patent showdown between Apple Inc. and Samsung Electronics Co. by removing her reading glasses, looking down at the armada of lawyers and asking plaintively, "You sure you want to do this?"

Yes, judge, they do.

On Tuesday, the most powerful players in the smartphone and tablet world will square off again in Koh's San Jose courtroom, this time in a retrial to decide how much Samsung must pay Apple for 13 products deemed to have violated Apple's patent rights.

The trial is a redo of part of last year's unprecedented legal battle that resulted in a jury finding that Samsung went too far in imitating Apple iPhone and iPad technology. One Apple lawyer recently called the retrial "groundhog day."

After last year's trial, Koh slashed about $450 million from the jury's $1 billion award, concluding that the panel improperly calculated damages on 13 of the more than two dozen Samsung devices found to have violated patent and trademark protections.

As a result, Apple and Samsung will collide again, giving both sides an opportunity to sway a new jury with their competing versions of how the two companies have emerged as leaders in the industry.

From a practical standpoint, the six-day trial will be an opportunity for Apple to try to pad the damage award for the sales of Samsung smartphones and tablets, such as the Nexus S 4G phone and original Galaxy tablet, that are so outdated they are a mere blip on the U.S. market. This slimmer version of last year's trial also gives Apple another shot at its true rival, Google, whose Android operating system runs Samsung's increasingly popular products.

"I don't know that I would call it symbolic, but I do think the main effect of the trial will be to set up the whole case for appeal," said Mark Lemley, a Stanford University law professor.

Added Brian Love, a Santa Clara University law professor: "The retrial sets precedent for the next case. and the next and the next if the two parties continue to litigate over newer and newer products."

Apple and Samsung declined to comment on the trial.

But in a hearing last week, Apple attorney Harold McElhinny summed up its focus: The "big question" will be showing how much Apple lost from the sales of the 13 Samsung devices. Apple argues that consumers would have bought iPhones and iPads if Samsung had not been selling devices it considers copies.

"Did we lose a sale because they infringed?" McElhinny said to the judge. "That's what we have to prove."

The trial takes place as the two companies continue to battle for global sales as they release newer versions of their signature products, most recently Apple's iPad Air.

And it will certainly not be the last round. A second patent case pushed by Apple, raising similar claims involving newer products, is scheduled for next spring.