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Following a recent retrial in the Apple v. Samsung case that saw the jury award the former with a cool $290 million on top of the nearly $600 million in previous damages over copying patented iPhone technology, Samsung of South Korea now wants a retrial of the retrial, citing a very unusual argument. Apple throughout the trial has painted Samsung as a “threat” to the local and national economy.

As a result, lawyers for the Galaxy maker in a new court filing are now accusing Apple of racial prejudice and asking judge Lucy Koh to grant Samsung a retrial of its last retrial. Wait, what? Yup, you read that right. The full explanation is after the break…

Samsung is basically saying that lawyers for Apple played the patriotic card by painting Samsung as a foreign company which threatened the national economy by carpet-bombing the domestic market with countless products.

Apple indeed drew parallels between Samsung and Asian vendors who flooded the market with cheap knock-off products that put domestic TV set makers out of business.

Patent blogger Florian Müeller has this quote by Samsung’s attorneys:

Samsung respectfully requests a new trial based on Apple’s repeated references to Samsung’s revenues from all infringing products, as opposed to those found to infringe upon Apple’s design patents, and blatant appeals to racial, ethnic and national prejudice.

Throughout the trial, Apple portrayed Samsung as a foreign threat to the local and national economy… Apple’s cynical appeal to racial, ethnic and national sentiment has no place in our system of justice and warrants a new trial.

Müeller opines that Samsung is appealing for the appeal’s sake.

However, this is Samsung we’re talking about, a company known for its perseverance and underhanded tactics, meaning “it’s not unimaginable that Samsung might even try to appeal this issue to the Supreme Court,” according to the blogger.

Samsung also alleged that Apple violated the Entire Market Value Rule, which covers damages for unpatented items.

The iPhone maker, argues Samsung, has misled the jury by comparing its damages claim to Samsung’s $3.5 billion in total revenues generated with the accused products in the U.S. – plus the total number of accused devices sold (10.8 million units) – even though not all of those products infringe design patents.

Müeller added:

I guess what Apple did in the Samsung retrial was not tantamount to using an inadequate theory (given that the numbers presented by its experts were based on court-approved theories), but this kind of argument yet makes more sense than the racial bias story.

I think Samsung is treading the fine line between hope and despair and likely shooting itself in the foot by attempting to play the dangerous racial prejudice card. I doubt Samsung’s race-baiting complaint will sit well with the U.S. court.

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