Judge "disappointed" over Apple and Samsung jury instructions, orders lead counsel to meet in person

Judge Koh issued the order a day before the Apple v. Samsung patent trial enters its third week, saying the parties need to meet in person to hammer out joint and disputed final jury instructions by Monday.

As noted by FOSS Patents' Florian Mueller, the somewhat unusual order was prompted by Apple and Samsung's failure to resolve disagreements as to what rules the jury must follow in deciding the case. Thus far, the parties have yet to produce a finalized joint document that outlines the agreements and disagreements, on which Judge Koh may need to resolve through a ruling.

In a filing on Friday, Apple said it has attempted to "advance the process" of reaching some sort of consensus regarding jury instructions, but claims "Samsung has stymied those efforts." The South Korean electronics giant filed a similar claim later that day disagreeing with Apple's assessment of the situation, saying it "has agreed to more than twenty revised instructions proposed by Apple and is continuing to review Apple's remaining disputed instructions for any common ground." Samsung's filing goes on to claim that Apple "agreed to only two complete instructions drafted solely by Samsung."

Mueller notes the parties' disagreements are unlikely to be resolved through negotiations, meaning Judge Koh will have to rule on the matter. While the final jury instructions are not required for at least a week, the Court must have time to review the disputed terms before issuing a ruling.

In another order also filed on Sunday, Judge Koh denied "Apple's Offer of Proof Regarding Evidence of its iPhone and iPad Advertisements," saying the Court construes it as a motion for leave to file a motion for reconsideration. Samsung objected to the advertisements' admission into evidence, but was initially overruled on the grounds that they were relevant to the question of "fame" regarding Apple's trade dress claims. A second Samsung objection, however, was successful as the Court agreed with the company and found the clips were "cumulative" and "allowed only the indices into evidence."

From the order:

The Court construes “Apple’s Offer of Proof Regarding Evidence of Its iPhone and iPad Advertisements” (ECF No. 1602) as a motion for leave to file a motion for reconsideration. The Court denies Apple’s motion for leave because the motion does not meet the requirements for leave to file a motion for reconsideration as set forth in Civil Local Rule 7-9(b). Accordingly, Apple may not file a motion for reconsideration.

Apple v. Samsung picks up on Monday when Samsung's first witnesses will take the stand in defense of Apple's patent infringement accusations. According to the Korean company's rolling witness list, Adam Bogue and Clifton Forlines will give testimony relating to prior art to Apple's '915 "pinch to zoom" and '381 "rubber-banding" patents.