Smartphone giants Apple and Samsung are hurtling toward a second patent showdown. Another trial, covering newer products like the iPhone 5 and Galaxy S III, is scheduled to start March 31.

In 2012, Apple won a $1 billion patent and trademark verdict against Samsung, although that sum was reduced to less than $900 million after a re-trial on damages. In the upcoming trial, newly revealed documents indicate that Apple is looking for a patent royalty rate that would allow it to collect billion-dollar sums from Samsung every year—for just five patents. According to patent blogger Florian Mueller, the five patents at issue cover Apple's phone tapping number feature, unified search, data synchronization, slide-to-unlock, and autocomplete.

Yesterday, Mueller published a hearing transcript from February 10 which featured each side's lawyers arguing to limit or throw out the other side's expert report.

We already know the result of that hearing. On February 25, US District Judge Lucy Koh issued an order throwing out much of Samsung's expert report while allowing Apple's. The massive damage numbers are in, and the $40-per-phone demand, or something close to it, will go to the jury.

During the hearing, Apple's lawyer argued that Samsung should be stopped from presenting certain licensing data to the jury. Samsung's lawyer argued that was key evidence to show how out-of-whack Apple's demand was.

"The only reason Apple is bringing this motion is because the licensing data is completely inconsistent with the idea that anyone would pay $40 for five smartphone patents per unit," said Samsung lawyer Scott Watson, according to the transcript. "Apple shouldn't be permitted to just throw up a huge number and then sit down and we've got our hands tied and we can't even show the jury that it's totally disproportionate to what actually happens in the marketplace."

In a case against Motorola involving one of the same patents, Apple said it was worth 60 cents, pointed out Watson. "In this case, they're asking for $12.49 for it," he noted. "And I submit there's simply no Federal Circuit case, or even a district court case, where a court has excluded a license on the exact patents at issue... and the jury is not permitted to see that, and the defendant has to go to trial with no licensing evidence to show the jury at all."

Samsung also wanted to show licensing deals with HTC as a comparison. But Apple lawyer Rachel Krevans pointed out that Apple wouldn't have been willing to accept HTC-like rates from Samsung, which is now one of just two huge players in the smartphone business. Between them, Apple and Samsung earn most of the profits in smartphones worldwide.

"HTC is not one of the horses in the two-horse race," Krevans said. "There is no showing that has been made that any of these terms would have been terms that would have been acceptable in a hypothetical negotiation."

Part of the reason the Apple numbers are so high is that Apple is being allowed to incorporate data about what it believes are its "lost profits" into the royalty rate. Koh agreed with that approach in her order, saying it's squarely in line with Federal Circuit precedent.

The big picture

Samsung sold almost 320 million smartphones last year. If Samsung had to pay Apple's desired royalty rate on just 10 percent of those phones, that would be a $1.28 billion annual payment.

Microsoft patent licenses to Android phone makers have reportedly been in the $7.50 to $15 per phone range, with lower estimates hanging around $5 per phone. As Mueller points out in his post on the royalty demands, those fees are for a license to a wide portfolio of patents, not just five patents being hotly litigated in court.

Eventually, Apple and Samsung are going to have to settle their dispute. At the end of the day, Apple likely won't get what it's asking for, and the never-ending court battles are very likely to cost more than they're worth. But there's a steadfast belief in Cupertino, still seemingly cemented by Steve Jobs' statements, that Android unfairly copied Apple.

Apple wants judicial "facts on the ground"—signposts that it has won victories in the patent war and could keep winning them if it so chooses. It wants to negotiate a deal from the strategic high ground. Actually kicking Samsung phones off the market appears to be a distant-looking dream. Just last week, Koh rejected the idea of an injunction for the second time. Not to mention, the trials will continue to inevitably be over old products, as the pace of litigation just can't keep up with the engineering. (The new trial isn't going to cover the Galaxy S IV, as much as Apple would like that, nor the iPhone 5S.) Still, if another trial ends with an eye-popping, headline-grabbing verdict, Apple will feel it can label Samsung in the public mind as a copyist and a knockoff artist; and it could negotiate a licensing regime that will put its chief competitor at a permanent disadvantage.

It's also possible to earn a lot of money by convincing Android OEMs to pay patent royalties, as Microsoft has shown. One analyst estimates Microsoft is getting $2 billion per year in patent payments over Android.