Apple Vs. Samsung Returns To Court

A California jury may have already decided that some of Samsung's smartphones infringe on Apple's patents and trade dress, but a hearing Thursday will play a major role in determining how the initial verdict is interpreted and acted upon.

The hearing, which will take place in San Jose, will see Apple and Samsung argue the merits of the decision, the jury's conduct and what types of damages should be awarded, if any. The original verdict awarded Apple $1.05 billion in damages, but that is likely to be revised.

One of the key portions of the hearing will cover the behavior of the jury foreman. Samsung alleges the foreman misconstrued his history with technology companies and experience with litigation.

The foreman was at one point employed by Seagate and was sued by the company. Samsung argued that it has a "substantial strategic relationship" with Seagate (which makes hard drives and other computer parts), and that the foreman should have disclosed this prior relationship to the judge. During jury selection, the foreman was asked if he had been involved in any lawsuits in the last 10 years. The lawsuit he was involved in with Seagate took place outside of that date range. The foreman insists he did not hide anything.

[ Apple is fighting several companies on several fronts. Read Schmidt: Apple, Google Waging A Cold War. ]

Earlier this month, U.S. District Court Judge Lucy Koh ordered, "The Court will consider the questions of whether the jury foreperson concealed information during voir dire, whether any concealed information was material, and whether any concealment constituted misconduct."

If Samsung is able to prove juror misconduct, it could overturn the entire verdict, but the likelihood is small.

Apple plans to ask the judge to ban Samsung from selling eight of its Android smartphones in the U.S. What's not clear is if the injunction will be permanent, temporary or if a mandatory licensing agreement between Apple and Samsung will be enacted. If the injunction is allowed, Samsung won't suffer too much, as many of the infringing devices are already out-of-date and off store shelves.

Then there are the monetary damages to consider. The initial award could be increased based on several factors. For example, Apple may be awarded interest for Samsung's sales both before and since the initial judgment. Apple will also try to play up the jury's "willful infringement" language, which could lead to a higher payday for Apple.

The results of this phase of the trial will be watched by the entire industry. It could set the tone for future patent lawsuits and the resulting trials and damages.