updated 10:30 pm EDT, Mon April 28, 2014
Expert witness barred from changing testimony on '647 patent
The last day of testimony in the second Apple-Samsung patent dispute -- which only became necessary due to an Appeals Court ruling that changed the definition of one of Apple's contested patents -- was intended to be fairly quick. The two sides were allowed just one hour each to put back on the stand some experts to explain how the new interpretation might affect jurors' deliberations , then there were to be some judgements on legal matters, and jury instruction.
Instead, Samsung's legal team -- which has gotten in trouble before over in- and out-of-court stunts -- decided it had one more to pull. One of Samsung's damages witnesses attempted to tell the jury that the new Federal ruling reinforces his argument that Samsung doesn't infringe the patent, and that he wasn't allowed to use the Posner interpretation in his previous appearance -- a blatant attempt to introduce new testimony on the infringement and damages theory.
Judge Lucy Koh, who had previously heard Samsung attorneys argue vociferously against any hint of introducing new views or theories when this issue first came up, hit the roof and struck Kevin Jeffay's remarks from the record, ordered the jury not to consider Jeffay's comment, deducted the time (and time arguing the point) from Samsung's already-miniscule allowance and warned Samsung that sanctions would be issued if the stunt was repeated.
The day had started with Apple expert, Professor Todd Mowry of Carnegie Mellon, on the stand explaining some particular terms used in the '647 ("data detectors") patent that will change, since the interpretation ("claim construction") of the patent ruled valid by the Federal Court of Appeals differs in some ways to the interpretation Koh was using, and on which the experts based their analysis, infringement decision and damages estimates.
Apple continues to maintain that the "Posner interpretation" (named after the judge who initially heard the Apple-Motorola dispute that triggered the Appeals Court review) was and is still wrong, but patents are issued using very broad language because the patent holders cannot foresee how their invention might be used, say, 20 years later. When challenged in court, the company submits an interpretation that it believes will be most favorable to its case.
In the otherwise-unrelated Apple-Motorola lawsuit that was later dismissed, Judge Richard A. Posner used his own interpretations of how the various patents worked, ultimately deciding that software patents themselves are not worth damage awards and dismissing both Apple's and Motorola Mobility's claims. Up to this point, Judge Koh had been relying on an interpretation of the '647 patent largely written by Apple, having judged it to be more accurate. The Federal Appeals Court, however, reinstated Posner's claim constructions even as it ruled Posner erred in dismissing the cases.
Mowry testified that the new claim construction didn't change his opinion that Samsung was infringing the patent, because the most contentious part of the new interpretation -- what the "analyzer server" (the bit of code that figures out that a string of numbers is a telephone number, or an address, and thus makes it clickable) actually is -- didn't affect his analysis. Samsung had argued that in its version of "data detectors," the analyzing was done locally on the device, and therefore didn't infringe -- deliberately using the term "server" in the patent literally as an independent function -- but Mowry (and Apple) had always disagreed with Samsung's view that Apple's "analyzer server" was separate from the rest of the data detector code.
Samsung attorney Dave Nelson thus had to step carefully in his cross-examination of Mowry, since under the agreement worked out between the judge, Samsung and Apple, Nelson couldn't attempt to prove that Mowry was wrong, as he might have in the regular portion of the trial. He attempted to highlight small inconsistencies between the older and current Mowry testimony, sparring strongly with Mowry over semantic word choices in the transcripts.
Though Apple attorney's objected several times, Judge Koh shot them all down. The inquisition ended with one of the stranger questions asked in this courtroom: Nelson asked Mowry if he would "describe my heart as a blood-pumping routine separate from [the rest of] me?"
Samsung's team then brought on Jeffay, who is to rebut Mowry's testimony. Almost immediately, it is obvious that Samsung's attorneys had prepped Jeffay to say that the new interpretation changes everything, in an attempt to bring in new questioning about the "analyzer server" that Jeffay said he "wasn't allowed" to talk about in his previous testimony, and said it would bolster his explanation of how Samsung hadn't infringed. Even before Apple's attorneys could object -- a point Judge Koh scolded them on later -- Koh quickly silenced the witness, ordered the jury out and called the lawyers over.
Koh, very visibly angry, told Samsung's attorneys that it was clear that the witness had been coached to say he'd been blocked from using the Posner construction, and demanded to see proof in the transcripts that Jeffay was prevented from using the new interpretation before. She was heard to say "if we're going to get into [the claim that the court somehow prevented Jeffray from saying anything earlier], I'm going to open the door [to Apple's attorneys] and let them go to town on it."
When neither the Samsung attorneys nor Jeffay could find any place in the transcripts of his previous testimony that supported his new claims or indicated he had been blocked by anybody from using the Posner construction, she accused Jeffay of deliberately avoiding a taking a stand in the interpretation of the analyzer server, and told the attorney's that he "didn't want to own it" prior to the Federal Appeals Court decision. She examined Jeffay's report and said the Posner interpretation as a basis for the conclusions weren't there either.
Meanwhile, Apple's team brought forth a string of inconsistencies and contradictions in Jeffay's previous testimony, perhaps hoping to get his entire report tossed out. Ultimately, after more than 20 minutes, she decided to have Jeffay's new testimony to that point stricken from the record and to instruct the jury to ignore it. She charged the time it took to resolve the matter against Samsung's hour, and ended a stern scolding of Samsung's legal team by saying that she "may have to think of some further consequences if [it happens] again." She told Apple's attorneys to not hesitate to object if they see any hint of further mischief outside the narrow boundaries allowed in this new testimony period.
Jeffay returned to the stand, and under Samsung questioning dismissed Mowry's use of the term "glue code" (meaning program code that bridged one function to another) as "jargon," claimed that Android is an "open system," (even though Samsung had previously claimed it wasn't allowed to change the Android features the company is being sued over) and said that despite evidence from Apple contradicting him, the MS-DOS programs from the Sidekick messenger device, in his opinion, renders the '647 patent invalid. In his view, Samsung still did not infringe on Apple's patent.
Apple's team chose to use its remaining time sparingly, and only quickly clarified a few points of Jeffay's testimony before recalling Mowry to rebut. Apple used the majority of its time remaining to have Mowry rebut Jeffay, leaving Samsung with only seven minutes remaining to cross examine. After just a few questions, the testimony portion of the trial finally ended in extra innings, and the jury was excused for lunch.
The judge then listened to various motions by both sides for "judgement as a matter of law" (JMOL) verdicts on various points. Samsung, for example, said that Judge Koh should rule the '647 patent invalid outright. It also asked for more time to present its closing arguments, a request that Apple's lead attorney Harold McElhinny quipped would be "cruel and unusual punishment" to the jury. On both matters, Koh declined Samsung's motions. She also denied all of Apple's motions, saying the jury should decide the case.
Following the various final discussions, a 53-page jury instruction form (covering 43 separate judgements the jury must arrive at) was read and supplied to the jury, and closing arguments in the trial will take place on Tuesday morning (Pacific Time). "It is your duty to find the facts from all the evidence in the case," the Judge Lucy Koh said. "Do not let personal likes or dislikes, opinions, prejudices, bias, or sympathy influence your decision. Bias includes bias for or against any party or any witness based upon nationality, race or ethnicity. That means that you must decide the case solely on the evidence before you. You will recall that you took an oath to do so."