After two weeks of Apple laying down their evidence that Samsung has violated their patents and completely ripped-off the iPhone and iPad, Samsung is now going on the defensive in the Apple vs Samsung trial. So far, Samsung’s biggest strategic defense has been to flip the trial around and claim that Apple has infringed on their standard essential patents.
To help their case, Samsung has listed two expert witnesses to justify their claims that Apple should pay up to 2.5% in royalties. One of the experts – David J. Teece, a professor at the University of California, Berkley, was recently used by Motorola in their case against Microsoft related to H.264 patents.
In the Motorola vs Microsoft trial, Teece claimed tthat the number of patents a company violates or uses, does not necessarily correlate to the amount they should have to pay in royalties. His reasoning was that “it only takes one bullet to kill.” Meaning, one important patent may be worth a whole lot more than 2000 smaller patents and that one patent should be enough to destroy the ability of another company to compete in the market.
The “on bullet to kill” phrase was Teece’s justification for why Motorola could demand a 2.25% royalty rate from Microsoft’s sales of Windows 7, Xbox, and any other products that use the H.264 video standard portfolio. However, ITC Judge Shaw claimed that the royalty rate offered by Motorola was excessive, and that Motorola was not interested in good faith negotiations.
It will be interesting to see how Samsung uses Teece’s claims against Apple and whether or not Judge Koh will allow it. Apple already tried to use expert witness testimony in a Samsung case from the UK where Samsung held a different view on patent licensing and royalty rates when they were on the receiving end of royalty feeds. Judge Koh ruled that the UK case was insufficiently relevant to the Apple vs Samsung trial.