At a certain point, the truth becomes so much stranger than fiction that it's hard to differentiate a real headline from one crafted by the talented folks over at The Onion. It appears that we've now reached that point in Apple's ongoing patent dispute against Samsung.
A few weeks ago, Judge Lucy Koh oversaw an Apple/Samsung retrial that focused solely on calculating how much Samsung owes to Apple for being found guilty of patent infringement. After a brief trial, a jury determined that Samsung should pay Apple a grand sum of US$930 million.
Now, believe it or not, Samsung wants a retrial of the retrial. Why? Because they allege, amongst other things, that Apple's attorneys relied on "racial prejudice" in arguing their case.
Florian Mueller reports that Samsung filed a motion seeking a Judgment as a Matter of Law (JMOL), a new trial altogether or a substantial reduction in the damages it owes.
Samsung's arguments for a retrial of the retrial have two truly interesting aspects and one that is idiotic. The stupid point Samsung makes can be addressed quickly. It claims, as it did at trial, that Apple's lead counsel, Morrison & Foerster's Harold McElhinny, appealed to "racial bias" against Asians. But he didn't use any pejorative terms of the kind you can hear at the beginning of Full Metal Jacket or say anything other that really has to do with race. At most one can say that he appealed to patriotism, but even that would be at least an exaggeration given that he just explained how domestic companies go out of business if they can't defend their intellectual property against foreign copyists. I just don't understand why Samsung made the decision to press this non-point instead of focusing on its more reasonable arguments.
Samsung's motion, with respect to its claims of racial prejudice, reads in part:
Independently, new trial is warranted under Rule 59 because Apple's appeals to prejudice against race, ethnicity, and nationality, which have no place in American courtrooms, rendered the trail unfair to Samsung.
Such appeals to prejudice are "an affront to the Constitution's guarantee of equal protection of the laws" and "offend the defendant's right to an impartial jury." Because Apple engaged in such improper appeals, Samsung's renewed motion for mistrial should be granted.
Apple's insidious "American-us versus foreign-them" theme permeated the trial. Apple's counsel referred to SEC employees as the "Korean bosses" of "Samsung America." Throughout trial, Apple gratuitously reinforced SEC's foreign status, rebranding it as "Samsung Korea," "Korean Samsung," the "Korean parent," and "the Korean company," or simply equating SEC with Korea. Apple injected additional reminders of "otherness," repeatedly pointing out when witnesses could not speak or read Korean and that certain Samsung engineers "don't speak English." By closing, Apple lumped all the defendants with "Samsung Korea," arguing that no "Samsung executive has been brave enough to come into this courtroom"...
Meanwhile, Apple's counsel appealed to U.S. nationalism and local parochialism, describing the Bay Area as "the center of one of the most vibrant economies in the world," and threatening: "if we allow [the patent] system of law to decay, investors will not invest, people will not take risks, and our economy will disappear." His meaning was clear: accept Apple's arguments or a foreign company will destroy Silicon Valley business.
Samsung, as one would expect, also tosses out the argument that the jury, yet again, did not apply proper frameworks when calculating their final damages amount.
It's just bizarre, as Mueller points out, that Samsung would resort to a racial/ethnic based argument in pleading for an appeal.
You can check out Samsung's full 51-page motion below.