updated 07:05 pm EDT, Thu August 2, 2012
'Severe misconduct' and past bad behavior over design patents
Saying "Samsung apparently believes that it is above the law, and that it -- not this Court -- should decide what evidence the jury should see," Apple has petitioned the US District Court hearing its case against Samsung to impose a severe sanction on the South Korean smartphone maker for its stunt of releasing to the press (with an obvious intent of influencing the jury) evidence that was barred from the trial for being inaccurate.
Earlier this week, Samsung appeared to defy the judge's order to exclude its contention that Apple copied the iPhone design from Sony by releasing the excluded slides to the press, along with an inflammatory statement that questioned the court's impartiality and implied that Judge Koh was deliberately withholding exculpatory evidence from the jury. Koh was visibly upset in court when informed of the shenanigans, and demanded information from Samsung on who had created the statement, and who had authorized the release of the barred evidence.
Senior Samsung attorney John Quinn, who has been dogged in trying to get what amounts to an "everyone copies" defense into the case, admitted authorizing the release but claimed it was sent only to media outlets that requested it. In its reply, Apple points to articles from reporters who received the material, unsolicited, directly from Samsung -- and implies that Quinn is lying. It also notes that Quinn has yet to satisfy the court's request to name the author of the press statement.
In the barred evidence, Samsung alleges (based on a single set of 2006 drawings) that Apple created the iPhone based on existing Sony products, including the Walkman music player. Prior to the start of trial, Apple already dispelled the notion by pointing out that the Sony-style drawings were just a "design exercise" for comparative purposes, and produced earlier prototypes and drawings from 2005 that showed the iPhone design to have been created wholly independently in-house. On the basis of the evidence, Judge Koh ruled that Samsung cannot introduce the so-called "Jony" design (a play on the name of Sir Jonathan Ive and Sony) into the trial.
By releasing the slides publicly anyway, along with a statement that said that "fundamental fairness" demanded that the jury see the excluded evidence, Samsung may have been deliberately angling to delay or even cause a mistrial in the case, Apple says. In its filing, Apple urges the court not to declare a mistrial, saying it would "play directly into Samsung's strategy of delay, and only reward Samsung's misconduct." It also notes that the court and Apple have spent considerable time and resources preparing for the trial.
One of the more curious aspects of Samsung's stunt was that its statement was also rife with errors of fact. In the statement released to the press, Samsung said that Apple was allowed to claim in court that the F700 feature phone from 2007 was a copy of the iPhone -- when in fact the company did not contest the F700 (seen below), and only referred to it as a "slider" phone with a QWERTY keyboard that shows the difference in pre-iPhone Samsung designs. The F700 came out about a month after the iPhone was originally announced, and Apple does not believe it infringes any design patents. Samsung also omitted the exculpatory 2005 Apple prototype's existence in its claims that the court suppressed the "Jony" prototype.
Apple wants Judge Koh to award Apple a victory on the design patent portions of the case (in effect say that Apple's design patents are valid -- a point Samsung is trying to challenge -- and that Samsung did indeed infringe on the patents). The case would continue with challenges to Apple's software patents and trade-dress complaints that would be determined by the jury, but the judge would determine liability on the four design patents. The cost to Samsung for the copying of iPhone designs could run to over a billion dollars.
In arguing for such a severe sanction, Apple points out to the court that Samsung has already been sanctioned four times prior to this latest offense for withholding and in some cases deliberately destroying evidence in violation of court orders. It argues that Samsung's "continuing and escalating misconduct merits a severe penalty that will establish that Samsung is not above the law." Apple says Samsung's stunt was a naked attempt to sway the jury on the design patent issues.
Legal pundits are split over whether Koh will go along with Apple's request, and indeed Apple includes a softer penalty option in its brief, suggesting that "at a minimum" the judge should instruct the jury (on top of the already-included sanction that the jury will be informed about Samsung's destroying evidence) that Samsung engaged in "serious misconduct" and that the court has already found that Samsung copied the design patents from Apple. Apple further suggests that Samsung should at least be precluded from mentioning the "Sony design exercise" for any purpose during the trial.
As patent case observer and analyst Florian Mueller points out, if Samsung feels that the current case is unfair or un-winnable given the excluded evidence, they should simply proceed with the trial and then file for appeal (which will inevitably happen anyway should they lose). Samsung, he says, appears to be frustrated that its contention -- that it was working on iPhone-like designs by sheer coincidence around or before early 2007 -- will be shut out of the trial. It's inability to come up with a more substantial defense than a tacit admission that it was "inspired" by Apple but that Apple was "inspired" by Sony, however, is tenuous at best and appears to mask a lack of solid proof that it innovated on smartphone design once the iPhone changed the playing field.
Apple Response to Samsung leaked evidence