As Apple and Samsung prepare for a new trial on damages, Apple filed a motion to exclude part of the damage calculation set forth in Samsung's updated expert report on damages. In particular, Apple moved to exclude the damage calculation pertaining to the Samsung Gem phone on the ground that these calculations are based on fewer sales than were originally included in the 2012 expert report. The 2012 expert report calculated damages for the Gem based on total sales and the new report calculated sales only for Gem phones sold through Verizon. Samsung asserted that the updated damages calculations were proper because Apple presented evidence of infringement only for Gem phones sold through Verizon at the 2012 trial and Apple therefore failed to meet its burden to prove its entitlement to damages for Gem phones sold through other carriers.
The district court began its analysis of the issue by noting that "[n]either party sought to differentiate Gem models by carrier before or during trial, nor did Samsung ever once object that Apple's failure to present infringement evidence regarding Gem phones sold through other carriers limited the amount of damages Apple was entitled to seek for the Gem. Samsung's noninfringement contentions did not argue that infringement hinged on the particular carrier model for any accused phone, Robinson Decl. Exs. D-E, nor did any Samsung technical expert raise this noninfringement theory, id. Exs. F-H."
The district court then explained that "Samsung was obligated to raise all of its noninfringement contentions in advance of the 2012 trial. Thus, Samsung's failure to raise its Gem noninfringement contentions prior to the 2012 trial is itself sufficient to find that Samsung forfeited the right to raise the issue now. What is more, Samsung did not raise the Gem issue during or even after the 2012 trial concluded."
Samsung contended that because Apple bears the burden of prove on its entitlement to damages that enabled Samsung's damage expert to present a damage calculation based only on Gem phones sold through Verizon. The district court did not find this argument persuasive. "Samsung misinterprets the relevance of Apple's burden of proof in this instance. While Apple certainly bears the burden of proof to show that it is entitled to damages, see, e.g., SmithKline Diagnostics, Inc. v. Helena Labs. Corp., 926 F.2d 1161, 1163-64 (Fed. Cir. 1991), to this day Samsung has failed to present any evidence that the non-Verizon Gem models differ from the Verizon Gem in any way that could impact Apple's entitlement to damages."
As a result, the district court found that Samsung had forfeited the argument. "Accordingly, this case has proceeded along the assumption that proof of infringement as to one Gem model was adequate proof of infringement as to all models. To the extent this assumption was incorrect, it was up to Samsung to raise this noninfringement argument before the 2012 trial. Because Samsung failed to raise this issue before the 2012 trial, and because to this day Samsung has still not produced any evidence to suggest that the various Gem models differ in any way that could conceivably impact Apple's entitlement to damages, the Court finds that Samsung has forfeited this argument."
Thus, the district court excluded the new damage calculation pertaining to the Gem phones.
Apple, Inc. v. Samsung Electronics Co., LTD., Case No. 11-CV-01846-LHK (N.D. Cal. Nov. 4, 2013)