A full-day negotiation
session between Apple CEO Tim Cook, Samsung’s head
of its mobile business JK Shin, and other company
representatives in the first week of February to discuss a
patent lawsuit reportedly failed to reach any agreement. The
two sides were asked by a court to try mediation before a trial
scheduled to start on March 31. A court filing in January said
the companies had agreed to retain a mediator "who has
experience mediating high-profile disputes", but did not reveal
his or her identity.
Although Judge Lucy Koh of
the US District Court for the Northern District of California
had not formally ordered the parties to show up for mediation,
analyst Florian Müller suggests that she "created a situation in which both parties had
to be constructive so as not to alienate her".
In a February 21 California court filing the
two parties revealed that Apple had "more than six" telephone
calls with the mediator and Samsung "had more than four" calls
after the face-to-face meeting.
"Notwithstanding these efforts, the mediator’s
settlement proposal to the parties was unsuccessful," said the
filing. "Parties remain willing to work through the mediator
jointly selected by the parties." The filing was signed by
WilmerHale’s Mark Selwyn on behalf of Apple and
Quinn Emanuel Urquhart & Sullivan’s Victoria
Maroulis on behalf of Samsung.
The lack of any progress was not very surprising given
that previous mediation efforts between Apple
and Samsung have failed. Cook and Samsung CEO Kwon Oh-Hyun met
in 2012 to discuss a different patent dispute but also got
nowhere. San Jose Judge Joseph Spero handled the negotiations
A California jury went on to
find that Samsung infringed a series of Apple patents and
ordered the South Korean firm to pay $1.05 billion in damages.
In that case, Judge Koh found that part of the award had been
improperly calculated and reduced the figure by $450 million.
This was later increased by $290 million in November 2013.
Now the second round is about to
begin, with the trial set to start on March 31. Both companies
have stripped down the list of patents they are disputing, at
the behest of Judge Koh. Samsung says a number of Apple devices
including the iPhone 4, 4S and 5 and iPad 2, 3 and 4 infringe
four of its patents. In turn, Apple says its patents are being
infringed by devices including: the Galaxy Admire; the Galaxy
Nexus; the Galaxy Note and Note II; the Galaxy S II Epic 4G
Touch, and S II Skyrocket; the Galaxy S III; the Galaxy
Stratosphere; and the Galaxy Tab 2 10.1.
Mediation has many merits,
as noted by my colleague Emma Barraclough in a recent blog post and in an upcoming
cover story for Managing IP. But it would have been a big shock
in this case if talks had borne any fruit. The battle lines had
been too clearly drawn and the process was too far along. The
sense was always that the two parties were going through the
motions by agreeing to talks. As noted by IBM’s chief patent counsel
Manny Schecter, mediation will only succeed if there is
buy-in from the two parties. In Apple v Samsung, this
clearly was not true.