Apple, Samsung present closing arguments

22nd Aug 2012 | 01:20

Apple, Samsung present closing arguments

Day 14 - Deliberations begin Wednesday

Arguments in the epic patent battle between Apple and Samsung drew to a close Tuesday as both sides presented their closing arguments with the signature flare that's marked this four-week trial.

Before the lawyers could get to talking, the jury walked into a nightmare as a 109-page document outlining their instructions, to be put into effect as they enter deliberations Wednesday, was handed to them.

"I need everyone to stay conscious during the reading of the jury instructions, including myself," U.S. District judge Lucy Koh reportedly said. "[We're] going to periodically stand up, just to make sure we're all alive."

Koh managed to whittle the case's verdict document down from 22 to 20 pages, though how many of its 700-plus questions she knocked off, if any, remains unclear.

In all, 84 instructions were read, covering everything from patent law to trade dress to how to determine whether Samsung's products were "substantially the same" as Apple's designs.

Once the judge and jury got through the lengthy instructions, four hours of closing arguments commenced.

Copying the 'world's most successful product'

First up was Apple, with counsel Henry McElhinny centering his elocution on creating a chronology for the jury.

"If you want to find out what really happened, if you want to see the truth, you need to make a chronology," McElhinny reportedly said.

He then laid out exactly how Samsung copied and profited from Apple's designs.

By Apple's estimations, between 2004 and 2007, the South Korean company produced phones that in no way resembled the iPhone.

However, once the company, which was facing a "crisis of design," saw the shocking impact Apple's iOS device had on the world, they wanted a piece of the profits.

How were they going to achieve that? By copying four years of development work by Apple in three months.

Suddenly, Samsung's profits soared, McElhinny argued, thanks to the product of its plagiarizing, the Galaxy S, born of the company's top echelons scheming to copy the "world's most successful product."

McElhinny turned to a court document presented as evidence almost two weeks ago, an internal Samsung memo providing a side-by-side comparison of the iPhone and the Galaxy SI.

Referred to by Samsung as a "relative evaluation report," or a standard rundown of competitors' devices, McElhinny used it as venom against the corporation.

"They sat with the iPhone and went feature by feature, copying it to the smallest detail," he said.

"In those critical three months, Samsung was able to copy and incorporate the core part of Apple's four-year investment without taking any of the risks, because they were copying the world's most successful product."

Apple confronted Samsung about the infringement, McElhinny said, as evidence of a rejected licensing agreement can attest to.

However, Samsung rebuked Apple's efforts for compromise and filed its own suit against Apple, taking "us down the road that has led us to this courthouse."

Where are your execs?

McElhinny also noted that his company brought two of Apple's most senior executives – Phil Schiller, senior vice president of worldwide marketing, and Scott Forstall, senior vice president of iOS – to testify, while Samsung led no executives to the witness stand.

"From the very beginning, Samsung has disrespected the process," McElhinny said. "Apple brought you two of its most senior executives: Schiller and Forstall. They were willing to face cross.

"No Samsung execs were willing to come here from Korea and answer questions under oath. Instead of witnesses, they sent you lawyers."

To Samsung's point that Apple's designs, like flat screens and rounded corners, are obvious, functional and based on prior art, McElhinny maintained Samsung not only failed to provide any proof that's the case, but also fell short in providing evidence to meet legal obviousness standards.

The number don't lie

After calling Samsung "the iPhone's biggest fan," McElhinny moved to Apple's trade dress claims against the company, referencing documents that showed "real world confusion" among consumers who mistook Samsung devices for iOS products.

Samsung not only succeeded in profiting off of their copycat enterprises, they managed to dilute Apple's market recognition in the process, and opened the door for others to do the same, he maintained.

As to Samsung's claims several of Apple's utility patents, like the one covering the "bounce-back" feature, McElhinny said Samsung failed to prove its case.

Samsung, he concluded, recklessly ripped off a major competitor after it was warned by others that its designs were unquestionably similar to Apple's products.

Besides the timeline of Samsung's success, the other factor that's hard to ignore are the numbers.

According to McElhinny, to date, Samsung's sold 22.7 million devices that infringe on Apple's patent. From those, Samsung has made $8.160 billion (£5.174) in revenue.

He presented four damages scenarios based on what Apple lost, what Samsung gained and what a "reasonable royalty portion" would look like.

The damages range from $519 million (£329) to $2.481 billion (£1.573). It will be up to the jury to decide how much, if any, Apple receives from Samsung.

Samsung's last stand

Samsung attorney Charles Verhoeven nearly ran out of time as he spent the majority of his two hours attempting to discredit Apple's "hired guns" and make a play for healthy competition.

Awarding Apple any damages could "change the way completion works in this country," Verhoeven reportedly told the jury.

Apple chose the courtroom to pick its battle, not the marketplace, he argued, punishing Samsung for its attempts to give consumers products they wanted.

The designs and technologies Apple claims it owns, he said, are products of the evolution of technology, not Apple's innovation.

Walk through Best Buy, he urged, and find devices that don't have flat screens set in rectangular shapes.

"Apple thinks it's entitled to have a monopoly on a rounded rectangle with a touchscreen," he said.

Consumers chose Samsung's devices, he said, and each has distinct Samsung markers, like unique user interface icons and an Android startup sequence, that distinguish them from Apple's products.

Furthermore, Apple selectively picked which devices it deemed in design violation, Verhoeven argued as he presented a board strewn with rectangular frames and rounded corners - Samsung phones Apple left out of this case.

"Apple didn't invent touchscreen technology," he said.

The damages Apple's seeking are "ridiculous," Verhoeven concluded, figures concocted by erroneous witnesses.

Before he wrapped, Verhoeven said Samsung never copied Apple nor did any business with malintent.

Furthermore, Apple's assertions that Samsung is a "copiest" was a deliberate play by Apple's attorneys to mislead the jury.

A is for rebuke

Apple attorney William Lee presented Apple's rebuttal, relating a lawyers' adage that attorneys who don't have a case spend their time attacking the other side's witnesses and counsel in response to Verhoeven's tactics.

He simply stated Apple had no designs to stymie competition and reminded the jury how much Samsung profited from what his side calls a deliberate plan to copy the Cupertino company.

The jury reconvenes Wednesday at 9 a.m.(PST) to begin deliberations.

Via All Things D and San Jose Mercury News

Apple Samsung iPhone iPad Galaxy S patent violation Lucy Koh TRBC
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