updated 10:37 pm EDT, Tue August 21, 2012
Jury: 40-page verdict worksheet, 108 pages of instructions
A full courtroom and overflow gallery marked a day of jury instructions and closing arguments in the Apple versus Samsung patent trial today. After reviewing motions and orders for closing arguments and jury instructions filed as late as 3 a.m., Judge Lucy Koh commenced the day with a reading of the 109 pages of jury instructions. Wrapping up the day, both Apple and Samsung concluded the cases with expectedly contentious final arguments and rebuttals.
The expansive jury instructions occupied hours of the court's time even before the closing arguments. In a nod to the repetitive, yet important nature of the jury instructions, the judge ordered that they would all periodically stand "to make sure we're alive." Topics covered in court, such as willful infringement, trade dress dilution, prior art, and design obviousness were all detailed -- as well as specific instructions on how to rule and calculate damages, with emphasis on a unanimous verdict being required at the end of deliberations.
Apple lead attorney Harold McElhinny began the closing argument process, covering the history of iPhone development starting in 2003, and reiterating Samsung's design philosophy over the time period prior to the iPhone's announcement that "shocked the world."
Following Samsung releases in the post-iPhone world, McElhinny reminded the jury of Google's warning that Samsung change the designs on their smartphones, since the search giant felt they resembled the iPhone too closely, but noted that "Samsung chose to ignore that demand and continue on the path of copying."
McElhinny started challenging Samsung's approach to the trial and lawsuits, saying that instead of doing "the right thing," i.e. not copying Apple's innovations and look, Samsung decided to "gin up claims of its own ... and take us down the road that has led us to this courthouse." Criticizing the witnesses chosen by Samsung en masse, the Apple attorney reminded the jury that a great number of iPhone designers and Apple executives testified in the case and "Samsung had a chance to defend itself in this case, instead they sent you lawyers."
On Apple's damages demand, Apple's attorney pointed out that Samsung has sold 22 million infringing phones, generating $8 billion in revenue and driving the point home by saying "the damages in this case should be large because the infringement has been massive."
McElhinny's statement was about an hour long, and followed by Samsung's own closing argument. Lawyer Charles Verhoeven led the presentation, wondering if there was any brand confusion by Samsung's products. He asked why Apple hadn't presented anybody who would say that they were fooled into buying Samsung's products because of similarity, and said that Apple "didn't provide any evidence of deception or confusion is because there isn't any."
Verhoeven pointed out the large amount of press related to the case to the jury, telling them that they were there because if the decision "goes Apple's way, [it] could change the way competition works in this country." In Samsung's view, Apple is trying to end open competition with this patent lawsuit.
The jury was once again walked through the differences in smartphones and tablets from Samsung's point of view, with the intent of proving to the jury that form of the devices has followed function, and the evolution of the designs over time has driven the rounded corners, and other features that Apple considers its own intellectual property.
"Samsung is a good corporate citizen," the attorney told the jury, saying that the Korean manufacturer supplies a large amount of the components inside several Apple products. Verhoeven added that "we don't think Samsung should have to pay anything, we don't think we're liable," but if the jury does award damages to Apple, then the $2.75 billion award suggested by expert witnesses is "ridiculous."
Apple's rebuttal to Samsung's close was Apple patent attorney William Lee. He stated that Apple wasn't trying to legally drown competition, but that "all [Apple] is saying is make your own [stuff]," intimating that Samsung was attempting to scare the audience and jury, and echoing remarks from co-founder Steve Jobs, current CEO Tim Cook and other Apple executives.
In a nod to Verhoeven's noting that Samsung provided components for the iPhone, Lee said that Samsung "wanted to fly below the radar until they could ambush their partner with a knockoff phone, " and that "Apple took five years to bring this revolution to us, Samsung took three months to copy it."
Lee continued with reminders to the court that Samsung was under the gun for antitrust law violations, as well as problems with fair, reasonable, and non-discriminatory (FRAND) patent negotiations, so the jury would have to decide who was operating fairly, and playing by the rules. Lee reinforced that in Apple's view "Samsung has not lived by the rules," and demonstrated by bringing up the fact that Samsung didn't disclose its patents properly and legally, and as such, gave up the right to assert them against other parties.
Apple attorney McElhinny wrapped up Apple's closing by saying that Apple would "reaffirm the American patent system" and that Samsung would never change infringing behavior if all the jury does is "slap them on the wrist."
In the last few minutes of the trial, Charles Verhoeven concluded by insisting that Samsung played by the rules, and has valid patent rights. In conclusion, Samsung finished with "let's let the innovators compete. Let's have Samsung compete freely in the marketplace" instead of having Apple attempt to block innovation in the courtroom.
After months of preparations, back and forth exchanges with CEOs of the two companies, and countless contentious pre-trial legal exchanges, the courtroom arguments are over, at least for now. The verdict is now in the hands of the jury. Deliberations begin Wednesday morning at 9 a.m.
Apple vs. Samsung Jury Instructions