updated 05:00 am EDT, Thu August 16, 2012
Picture of defense strategy emerges in third week
The first two weeks of the continuing Apple vs. Samsung patent trial most focused on Apple -- both on its case against Samsung and on the revelation of behind-the-scenes information normally kept out of public view by the notoriously secretive technology giant. In the third week, however, the attention has turned to Samsung and revealed the two main prongs of its defense: the claim that it didn't copy Apple -- but even if it did it was justified -- and that Apple itself has infringed on Samsung patents.
In its turn to present its arguments, Apple focused on the many ways -- hardware, software, packaging and other factors -- in which Samsung copies Apple so closely that, the company argues, it crosses the line into deliberate and willful patent and "trade dress" infringement. One need only look at the packaging of Samsung's hero smartphones after the iPhone came out to see an example of clear, unambiguous copying of Apple.
In its defense, Samsung has variously said that copying in order to improve a product is okay, that it made significant enough changes in its designs to avoid infringement, that everything it has done has been completely original, and that Apple may have copied others -- all as justification for its design choices. It has managed to put forth a case where it claims it did no copying at all, but even if it did Apple's patents are invalid which justifies any copying of, for example, the phone program icon, the concept of an icon dock or the direct copy of the iTunes icon for music.
Under US patent law, companies can still be found guilty of infringing a patent even if the company came up with the identical methodology or design completely independently. On the other end of the spectrum, intentional copying of a patent or protected work can be completely excused if the protection is challenged and later found to be invalid, even if the criminal intent to infringe was there at the time. The latter concept is what exonerated Google after a jury found it guilty of willfully stealing code from Oracle's Java. The judge dismissed the finding based on his ruling that software APIs can't be copyrighted.
What Apple calls patent infringement and "slavish copying," Samsung has tacitly admitted should be found to be simple copying, which may not be illegal if the patent or design element was "obvious," another point of contention. The two companies have fought over the definition of the terms for jury instructions since before the trial got underway, forcing the presiding Judge Lucy Koh to order the teams to meet in person to hash out instructions before the case is handed to the jury next week.
Apple is fighting Samsung not only to stop the South Korean electronics rival from further copying and enriching itself based on copied designs, but also to prevent others from doing the same thing. The damages Apple seeks is not considered a remedy by the company, but more of a disincentive to stop Samsung and others from future infringements. Samsung is seeking to have Apple's patents judged invalid or at least "obvious," which signals its intent to continue "borrowing" ideas from the iPad maker if the judgement goes its way.
Even when Apple has presented copies of documents and emails from Samsung that encourage its engineers and designs to copy or at least design similar-looking or working functionality, the Galaxy Tab maker has simply claimed that it was merely "learning" through the "lessons of the iPhone" and had no intent to make replica devices. One designer, Sungsik Lee, sent a memo trying to encourage his colleagues to draw inspiration from Apple's innovations, but not to simply copy ideas and concepts such as making the "end call" button large and separate from other buttons to let users avoid touching the wrong one, something Samsung quite obviously ending up copying directly.
Lee's email was produced by Samsung to "prove" that it did not intend to simply produce knock-off iPhone-alikes. But it is obvious to those following the case with interest that the fact the Lee felt motivated to product the memo in the first place suggests that he felt the company was already well down the path of direct copying rather than "learning the wisdom" of Apple's design decisions.
Lee encouraged Samsung to absorb Apple's focus on user interaction rather than "logical sense" and tradition of what had gone before, but the company's own documents produce example after example where Samsung designers chose the easier path rather than creating something truly new. Even Lee's own email refers to Apple as the new "standard of the industry." Google likewise advised Samsung that its tablet needed more differentiation from Apple's iPad, advice the company ignored.
Samsung has also charged that Apple itself infringed on three of Samsung's patents, including patents on emailing photos as attachments, bookmarking a photo in an album for later viewing, and a patent for music playing in the background "behind" other apps. In another example of the fine line the company has had to walk, it claims that Apple's patents it is accused of copying are "obvious" and thus should be invalid, but claims its own patents -- like attaching a photo to an email -- aren't obvious and that Apple has copied from them.
Apple rebutted the suggestion that it copied the photo-attachment feature on Tuesday by pointing out that Samsung's own expert had failed to find any evidence that Apple was aware of the patent -- a point of law that says that infringement cannot occur unless the alleged infringer is made aware of the patent and does nothing about the infringement. It also noted that Samsung's own documentation showed that it had -- prior to applying for the patent -- studied Apple's implemention of photo attachments.
Apple's attorneys also noted that Samsung was unable to get any of the actual patent inventors to testify in its defense, and that Samsung doesn't actually use any of the disputed patents in its own products -- making it difficult to accuse Apple of copying a feature that Samsung never used. Apple had met with Samsung twice in 2010 to warn the company that it was copying and probably infringing on Apple's patents, complete with a slideshow with specific and numerous examples. Apple received no such briefing from Samsung.
Samsung has also tried to invalidate Apple's patents by pointing out prior art, mostly drawn from fictional examples or existing concept art for products that didn't actually make it to market, such as Roger Fidler's "digital newspaper" concept. The latter, which Fidler testified he showed to Apple in 1994, essentially put a black frame around a mockup of a newspaper's front page.
This line of attack has been seen by outside observers as having fallen flat, since it is the job of speculative fiction authors to dream up gadgets and concepts society might use in the future -- but those creators cannot be called inventors as they generally do not detail how the invention would work or be practical, a key concept in the patent process. Apple is likely to refute Fidler's claim by pointing out that the company brought in its executive leadership, senior management and most of the engineers that worked on what would become the iPad and iPhone from when co-founder Steve Jobs replaced many Apple staff with his own people from NeXT when he returned to Apple years later.
Under Samsung's argument, Apple could be suing itself from ripping off its own "Knowledge Navigator" concept from 1987, which was created under the leadership of the previous management team, led by John Sculley. The idea that the iPad was drawn from the Knowledge Navigator seems dubious at best.
Samsung's legal strategy also appears to be based on calculated misconduct, seemingly designed to provoke an over-reaction or mistake from the judge that could lead to a mistrial or grounds for appeal. Samsung had been accused of delaying tactics and foot-dragging when complying with orders for months before the trial, leading to a number of sanctions, the most serious of which is the charge that it destroyed evidence -- a finding the jury will be made aware of.
While the judge has had issues with tactics used by both sides -- not unusual in a high-stakes battle like this one -- Samsung has clearly taken the biggest risks and pushed Judge Koh much harder, resulting in numerous rulings and four specific sanctions that went against the company. Among the punishments Samsung has racked up are a reprimand for its lead attorney for "leaking" barred (and flawed) evidence to the press, and the blocking of at least three of Samsung's witnesses against Apple on the grounds that Samsung misled the court or Apple about what it was going to present. Samsung's lawyers also drew criticism from the judge for mentioning the sales injunctions Apple had already won against the company when it was forbidden to do so, among other issues.
Apple has also pushed or overreached on occasion, such as asking for a sanction of summary judgement as a punishment for Samsung counsel John Quinn's antics. The company's bickering with Samsung over trial minutia such as jury instructions has also brought sharp words from Koh. Whether any courtroom "theatrics" (to use Judge Koh's terminology) will have any sway with the jury remains to be seen, but to outside observers the strategy seems like clutching at straws in many places, with Samsung ironically even copying Apple in playing the victim of patent infringement.
Both companies are expected to honor Judge Koh's request to further narrow down their respective claims in order to give the jury less complexity to sort through in deciding their verdict. Apple and Samsung also agreed to have their top executives meet one last time to see if a settlement can be arranged.
Despite a strong case, Apple is at a disadvantage in trying to win both a finding of infringement and monetary damages against Samsung, as this will require a unanimous verdict from the jury of nine people -- whereas all Samsung appears to be shooting for is to convince one or more jurors to have sufficient doubt to result in a hung jury.
However, even that strategy may backfire for the company. In recent rulings between tech companies, at least two judges have put aside jury findings or the inability to come to an agreement and issued rulings on their own that have set precedent that is largely favorable to Apple. Judge Koh has already granted Apple sales bans on several Samsung products and has been seen to be persuaded of Apple's central argument that Samsung set out to willfully copy Apple.
Should she have to decide the issues without the jury's help, she has already hinted that neither company should expect to get a "clean win" out of the situation. Samsung also faces the possibility of further sales bans and high monetary damages as an incentive to re-examine its willingness to settle issues.
The trial will continue with Samsung's final witnesses testifying this week, along with a long line of Apple rebuttal witnesses (Apple has wisely conserved its strict 25-hour witness time limits, allowing for more rebuttal while Samsung is now scrambling to fit its final witnesses into its remaining time). Closing arguments from both companies are set for Tuesday.