updated 03:44 pm EST, Tue November 19, 2013
Damages award now in the hands of the jury, time to decision unknown
Apple and Samsung are wrapping up the retrial of the vacated damages from the first omnibus smartphone patent trial from 2012. In closing arguments, Apple is arguing that Samsung cannot refute that it had improperly used iPhone related patents, and did so willingly, in its design process of more than a dozen devices. Samsung doesn't deny infringement, but believes that Apple is overstating how important the patents at stake actually are, and is asking far too much money to compensate for the unlicensed use.
Apple attorney Bill Lee noted in his closing remarks that while Apple produced senior vice president of worldwide marketing Phil Schiller for testimony, Samsung was somehow unable, and lacked the conviction, to produce any executives for testimony in this damages retrial. He also pointed out that Samsung claimed that it would take only $30,000 to engineer around Apple patents, but chose to not spend the money, and continued to infringe on Apple patents for an additional year and a half before being forced to do so. On Samsung's claim of only owing $52.7 million, Lee believes that "if you accept Samsung's numbers, you have turned our system on its head"
Samsung lawyer William Price believes that Apple "doesn't own beautiful and sexy," but is entitled to some compensation, about $50 million dollars for all the vacated products from the first trial. Price claims that Samsung "should not be forced to overcompensate Apple for design touches that any competitor should be allowed to incorporate," touching on an oversimplification from the first trial about being unable to patent a rectangle with rounded corners.
Price noted that Samsung market research showed that 75 percent of those who purchased a Samsung phone did so without considering Apple phones, saying that "Did you hear any evidence that anyone bought any of these phones because of the Apple patents?" a fact that was highly disputed in the first trial. Concluding his remarks, Price complained that "what they're really saying in the market is 'justice' is 'just us.'"
In a contentious rebuttal, marked by several Samsung objections which were denied by presiding judge Lucy Koh, Apple counsel Harold McElhinny reiterated that no Samsung executives were "brave enough" to appear in court saying that "How can they disrespect the process so much that they don't even come to the trial?" adding that the jury would hand Samsung a victory if it averaged Apple's $300 million request and Samsung's $52 million.
Wrapping up his remarks, concluding the trial, and nodding in the direction of public fatigue with patent lawsuits, McElhinny stated that if the trend of minor penalties continue, then the entire US economy will suffer, and "if juries take the profit out of patent infringement, then patent infringers will suffer."
Samsung objected against a section in Apple's rebuttal to Samsung's close that US television manufacturers were driven to bankruptcy by unnamed overseas companies because they failed to protect patents involved in the construction of the sets. Price claimed that Apple attorneys were attempting to play on the different racial makeup of the companies to elicit a response from the jury. McElhinny sternly denied any allegations of racism in the remarks, claiming that Samsung attorneys were over reacting to the remark. Judge Koh denied the request for a mistrial, ruling that "I don't think what occurred rises to the level of mistrial."
The decision is now in the hands of the jury. This decision made in the next few days will likely not spell the end of the first trial, with appeals of the decisions made in the trial still yet to be heard by various appeals courts, with one notable exception.