Back on January 9, 2014 we wrote an article that focused on Apple and Samsung heading to a mediator to see if they might be able to resolve their differences ahead of their upcoming patent infringement case that is slated to begin on March 31^st, just a couple of months down the road. The players are all familiar to us now - the venue is the now quite familiar court of now quite familiar Judge Lucy Koh of the Northern District of California, and the players are - right…

Anyway, in our mediation article we expressed the opinion that neither Samsung nor Apple could possibly ever find a way through to an equitable solution through mediation. Why? Because neither side had any real vulnerability against itself or against the other that might compel one or the other party to in fact find some middle ground and give way. That was then. Today perhaps Judge Koh put on the table some things that might convince Samsung it should take mediation a bit more seriously than it otherwise would.

What are these things? In a summary judgment order entered late in the day on January 21, 2014), Judge Koh specifically found Samsung's mobile devices to infringe a patent Apple happens to hold on word recommendations. That is U.S. Patent No. 8,074,172, which covers a "method, system, and graphical user interface for providing word recommendations."

Perhaps you are familiar with Apple's autocomplete feature - the very same that often turns an email or text message into a mass of silly terms if you aren't paying attention. This scenario poses an interesting potential conundrum for other device makers - if Samsung infringes perhaps Apple has some new licensing opportunities ahead of it with any other Android-based smartphone vendor. That would include Google.

Further Judge Koh also specifically declared a Samsung patent on multimedia synchronization invalid. The Samsung patent is U.S. Patent No. 7,577,757 that covers "multimedia synchronization method and device." Apple successfully argued that the patent should not have been granted in light of an earlier-filed one, U.S. Patent No. 7,587,446.

This, in our humble opinion is, as we say in our headline, a real double whammy against Samsung.

To be so clearly labeled as an infringer and to so publically (and loudly in this case) have a patent be declared invalid is a very big deal. To have both of these things take place within the very same stage where the larger patent lawsuit will take place is a significant roadblock for Samsung. No, it is certainly not an Apple slam dunk and no, by no means is an Apple victory assured, but surely the odds have shifted to favor Apple once again coming out as the winner of the upcoming trial.

It is the sort of thing that we would suggest is a real vulnerability - one that Apple now holds against Samsung, and one that Samsung needs to carefully consider going forward. Hmm, perhaps mediation wasn't a bad option to pursue after all. Going forward, if we want to keep score, both Apple and Samsung each had five patents in hand that each claims infringed on the other.

Well, Apple still has all five in hand, one of which has already been declared as infringed by Samsung, and one of Samsung's five is now effectively declared invalid. So the score is now Apple five (actually "five plus") and Samsung four on which patents will ultimately find their way to the jury.

Of course no one needs to remind anyone that the United States came back to win the Americas Cup last year after being down eight victories to none to New Zealand. Perhaps Samsung will rebound, but unlike the Americas Cup, which the American team had been favored to win before falling behind eight to nothing, Samsung is probably living a dream here in terms of winning the day.