Apple aims for salted earth in Samsung fight

@CNNMoneyTech July 31, 2012: 10:34 AM ET
Apple is suing Samsung over what it sees as its copycat smartphone and tablet designs.

Apple is suing Samsung over what it sees as its copycat smartphone and tablet designs.

NEW YORK (CNNMoney) -- As the high-stakes patent trial between Apple and Samsung Electronics moves into its second day Tuesday, one thing is clear: Apple is committed to waging total war. Like the Roman Empire in its victory over Carthage, Apple seems determined to salt the earth so that its competitor can never rise again.

Apple is seeking to have the court case declared "exceptional," a legal standard under which the jury could award treble damages. That's three times the amount of actual, provable damages -- which Apple is claiming run to billions of dollars.

Apple (AAPL, Fortune 500) is also seeking to recoup 100% of Samsung's profits from the sales of any products found to be in violation of Apple's patents. Although the bone of contention is the allegedly infringing outward appearance of Samsung's smartphones and tablets -- "trade dress" in patent-law lingo -- Apple says that it is entitled to revenues from the whole enchilada.

It's also seeking a permanent injunction to stop Samsung from selling all infringing products.

Apple partially got its way when Judge Lucy Koh, a former patent lawyer, issued an injunction barring sales of Samsung's Galaxy Tab 10.1 tablet while the trial proceeds. In a second, related case, Koh issued a similar injunction to stop U.S. sales of the Galaxy Nexus smartphone. The Nexus remains on sale, though, thanks to a temporary stay from an appeals court.

Apple's thirst for blood isn't unusual. "You always wage total war in litigation -- that's the way this works," said Harold Edgar, a professor of law and technology at the Columbia Law School.

Apple's accusations -- among them that Samsung practices "a corporate policy of deception" -- provoked a furious response from the Korean electronics manufacturer.

"Apple's overreaching claim for damages is a natural extension of its attempt to monopolize the marketplace," Samsung said in its trial brief. It added that Apple's key design patent "shows little more than a blank rectangle with rounded corners."

Samsung's counter-claim is that Apple should pay Samsung for Apple's use of Samsung's core smartphone technology, including a patented five-step method for "sending text-only emails, sending emails displaying both text and an image, and sequentially displaying images stored on the device."

Should Samsung carry the day on those allegations, Apple would be required to pay Samsung royalties.

Silicon Valley is constantly embroiled in patent battles, but this is a high-profile skirmish in Apple's worldwide crusade against Android. Steve Jobs, before his death, vowed to go to "thermonuclear war" on Google and the Android phone makers that he felt had blatantly ripped off Apple's iPhone.

"The dollar volume is potentially very high in terms of money and product that could be influenced," Edgar said of the Samsung battle.

Even if Apple wins, though, it's unlikely to get anything close to the full amount of damages it asked for in its brief. Edgar thinks the case's overall effect on the smartphone market will be limited.

"I would be surprised if any outcome here had as its consequence giving either party domination in the cell-phone business that was anything like Polaroid's victory over Kodak," he said.

In 1985, Polaroid won a decisive case against Kodak after a nine-year battle over instant-photography patents. As a result, Kodak abandoned the instant-camera market. To top of page

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