Settlement talks – How, When, Why?

How do settlement talks happen?

I would dare to say that settlement discussions are ongoing throughout any litigation process. Parties involved in litigation always have a channel open, either directly or through its outside counsels. And settlement is always a topic that is brought up.
In addition, settlement talks are generally confidential, meaning the discussions cannot be used against either party if settlement is not reached and the case proceeds to trial.

I am also confident that there is already an offer on the table from Samsung, likely a lump sum, not really connected to volumes or amount per device. (considering my experience with negotiations with Samsung)
But apparently, it’s not enough for AQ to accept at the moment.

Going to court (i.e. jury trial) is always a risk for both sides.

When is the right time to settle?

  1. Reason 1 to settle: The Markman hearing does not go favourably.
  2. Reason 2 to settle: You see all the evidence after the discovery phase.
  • Note: Documents and depositions from discovery are not made public. Each side chooses what information to use at trial to present to the jury.

Judges generally encourage settlement discussions. Courts often encourage or even orders the parties to engage in settlement talks or mediation.
This could (and I emphasise, could) be the reason for the delays in scheduling of the Texas case. The parties may have requested additional time to discuss a possible settlement. Something the judge, as mentioned, would grant immediately.

If a settlement would not happen soon and the schedule then is set, I believe that a settlement would likely occur much closer to the trial date. By then, both parties would have a clearer understanding of the evidence and testimonies (results from discovery, depositions, etc.). This means the period just before the trial would be the most intense time for negotiating a settlement.

What about external pressure?
Samsung does not care about “media exposure” — they are used to it. Over the last ten years, Samsung (across its various divisions) has been a defendant in 861 patent infringement cases worldwide, with 725 of these cases filed in U.S. courts.


Media exposure does not intimidate them. The only factors that matter are how much they are willing to spend on litigation or on a settlement.

In the end, this is purely a business decision

The specific terms of the settlement may also never be publicly disclosed, as they are typically kept confidential. Once the settlement is finalized, the parties will submit a stipulation of dismissal to the court, formally concluding the litigation. (And ideally, you might be able to trace the flow of money afterward.)

P.S. Just because Samsung would settle does not mean it has any bearing on the Apple case! That case follows its own path entirely.

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