Both Apple and Samsung rested their cases in the U.S. legal conflict between the two parties last week, with the closing statements scheduled for Tuesday, August 21.

Once that last ritual of a trial is completed, the jury will start deliberating on the claims brought by each party against the other, and we should have a verdict in the coming days/weeks.

That seems like the more likely outcome of this patent dispute, as the parties failed, during a third court-ordered meeting, to reach a settlement, or even to “narrow the scope of the claims at issue in the lawsuit in out-of-court talks.”

U.S. District Judge Lucy Koh, a “pathologically optimistic” person, ordered the two sides to meet, once again, for settlement talks and to “simplify the matter for jurors” should a settlement not be reached.

Apple and Samsung executives have already met twice, as instructed by the court (and not counting previous meetings between the parties), but failed to reach an agreement. The third time was not a charm, as settlement talks have proved to be inconclusive yet again. Furthermore, neither Apple nor Samsung was willing to budge on the patent claims each party brought to the trial.

Apple’s and Samsung’s lawyers issued a joint statement confirming the “success” of their encounter:

“The parties have met and conferred about case narrowing, but have not been able to narrow their cases further,” according to a joint filing signed by attorneys on both sides. The filing didn’t refer to talks between the CEOs, Tim Cook at Apple and his counterpart at Samsung, Kwon Oh Hyun.

That means it’s up to the jury to come up with the verdict in this complex patent-based mess, and we’re certainly interested to hear what the jury’s findings will be.

The outcome of the U.S. Apple vs Samsung trial may be very important for other similar proceedings in other markets, as the two giants have sued and counter-sued each other in more than 50 different cases in ten countries spread over four continents. That’s why it may be too late for a settlement that would cover just the U.S. market:

“I think it’s too late to hold out much hope that the parties will settle before the jury comes back,” Mark Lemley, a Stanford University law professor, said yesterday by e-mail after the companies’ reported to the court. “When there is a settlement — and there will be — it will be a global deal involving more than just this case.”

In case you’re interested in this Apple vs Samsung battle, then you’ll certainly want to take a look at the 45-page jury instruction from Judge Koh embedded at the end of this article – although it’s not the final one. Here’s one very enlightening passage from the document, that reveals just how complex the case is, when it comes to looking at the intellectual properties each party is accusing the other of infringing, for the jurors who are to deliberate on these patent claims starting with August 21:


I will now again summarize for you each side’s contentions in this case. I will then tell you what each side must prove to win on each of its contentions.

As I previously explained, Apple seeks money damages from Samsung for allegedly infringing the’381, ’915, ’163, D’889, D’087, D’677, and D’305 patents by making, importing, using, selling, and/or offering for sale the tablet and smart phone products that Apple argues are covered by claim19 of the ’381 patent, claim 8 of the ’915 patent, claim 50 of the ’163 patent, and the D’889, D’087, D’677, and D’305 patents. Apple also argues that Samsung’s Korean parent, Samsung Electronics Company (“SEC”), actively induced the U.S. Samsung entities, Samsung Electronics America, Inc. (“SEA”) and Samsung Telecommunications America, LLC (“STA”), to infringe the patents. Apple also contends that Samsung’s infringement has been willful.

Samsung denies that it has infringed the asserted claims of Apple’s patents and argues that, in addition, those claims are invalid. Invalidity is a defense to infringement.

Samsung has also brought claims against Apple for patent infringement. Samsung seeks money damages from Apple for allegedly infringing the ’941, ’516, ’711, ’460, and ’893 patents by making, importing, using, selling and/or offering for sale Apple’s iPhone, iPad and iPod products that Samsung argues are covered by claims 10 and 15 of the ’941 patent, claims 15 and 16 of the’516 patent, claim 9 of the ’711 patent, claim 1 of the ’460 patent, and claim 10 of the ’893 patent. Samsung also contends that Apple’s infringement has been willful.

Apple denies that it has infringed the claims asserted by Samsung and argues that the claims asserted by Samsung are invalid, and for the ’516 and ’941 patents, also unenforceable. Invalidity and unenforceability are defenses to infringement. Apple also contends that, by asserting its “declared essential” patents against Apple, Samsung has violated the antitrust laws and breached its contractual obligations to timely disclose and then license these patents on fair and reasonable terms.

For each party’s patent infringement claims against the other, the first issue you will have to decide is whether the alleged infringer has infringed the claims of the patent holder’s patents and whether those patents are valid. If you decide that any claim of either party’s patents has been infringed and is not invalid, you will then need to decide any money damages to be awarded to the patent holder to compensate for the infringement. You will also need to make a finding as to whether the infringement was willful. If you decide that any infringement was willful, that decision should not affect any damage award you give. I will take willfulness into account later.

To resolve Apple’s claims regarding Samsung’s “declared essential” patents, you will need to make a finding as to whether Samsung violated the antitrust laws and whether Samsung breach edits contractual obligations. If you decide that Samsung violated the antitrust laws or breached its contractual obligations, you will then need to decide what money damages to award to Apple.

Apple accuses Samsung of diluting Apple’s Registered Trade Dress No. 3,470,983. This trade dress relates to the iPhone. Apple also accuses Samsung of diluting two unregistered trade dresses relating to the iPhone. Finally, Apple claims that Samsung has diluted and infringed its unregistered trade dress relating to the iPad.

For each of Apple’s trade dress dilution and infringement claims, the first issue you will have to decide is whether the Apple trade dress is protectable (or valid). An asserted trade dress is only protectable if the trade dress design as a whole, as opposed to its individual features standing alone, i s both distinctive and non-functional.

For Apple’s trade dress dilution claims, the next issues you will decide are whether Apple’s trade dress was famous before Samsung started selling its accused products, and whether Samsung’s accused products are likely to cause dilution of the asserted Apple trade dresses by impairing their distinctiveness.

Apple’s trade dress infringement claim will require you to resolve different issues. You will need to determine whether Apple’s trade dress had acquired distinctiveness before Samsung started selling its accused products, and whether Samsung’s accused products are likely to cause confusion about the source of Samsung’s goods.

If you decide that any Apple trade dress is both protectable and has been infringed or willfully diluted by Samsung, you will then need to decide the money damages to be awarded to Apple.

Samsung denies that it has infringed or diluted any Apple trade dress and argues that each asserted trade dress is not protectable. If a trade dress is not protectable, that is a defense to infringement and dilution.

And that’s only one section (pages 20-21) of the 45-page document. It’s going to be fun for the jury, yes?

Jury Instructions Order