updated 03:25 am EDT, Wed April 30, 2014
Samsung definitely didn't copy Apple's cool closing style
As reported earlier, it's all in the hands of jury now. The final day of the second Apple-Samsung trial consisted of two of the most contrasting closing arguments quite possibly ever seen in a courtroom: Samsung's mad dash to the finish line, a relay race of four lawyers, too many exhibits and not enough time; Apple's cool, relaxed and compelling storytelling, and a devilishly clever finale as its defensive closing argument offered multiple layers of meaning.
As worked out during negotiations yesterday, Apple both began and ended the proceedings -- it was first up on its affirmative case against Samsung, which Samsung's attorneys would then refute in their defensive closing, then summarize its case that Apple infringed some of its patents, which Apple would then defend. Each side would get two hours.
Apple's lead attorney, Harold McElhinny, handled the closing arguments for Apple. He began in the same manner as he had at the beginning of the trial, by reminding jurors of the electric moment when Steve Jobs unveiled the iPhone and how radically different it was to anything else on the market at the time. When the iPhone was introduced, Samsung didn't have a touch-based smartphone, and "it was not even working on one," he said.
The iPhone and the iPad, McElhinny said, was invented by "true geniuses like Steve Jobs" and the teams that worked on them, some of whom came to testify during the trial. "They were, and are, real people." He then said that Samsung (like the rest of the industry) saw what Apple had achieved and dropped everything to change course for the new direction that all smartphones would now take. Samsung, which McElhinny later reminded the jury referred to itself as a "fast follower" of tech trends, "worked in a frenzy" to imitate Apple's technology, copying "feature after feature of the iPhone."
At the beginning, Samsung was a trusted partner and supplier for Apple, with the iPhone maker eventually becoming Samsung's biggest customer of its manufacturing arm. "We are here in court today because of a series of decisions by Samsung Electronics" to use Apple's technology to become the leading supplier of smartphones. "Unlike in fairy tales," McElhinny continued, "we know that Samsung's illegal strategy has been wildly successful."
"The first thing I want to make clear is who the parties are in this case," he said, later saying flatly that "Google is not the defendant" and that the jury "will not find Google on any jury form." While some of the patented features used in the infringing Samsung products are also part of Android, which is controlled by Google, Samsung took the decision to use and make their own version of infringing software and profited by it, he said. McElhinny noted that none of the Korean executives of Samsung -- the ones who took the decisions to infringe, according to Apple -- showed up in court.
"None of them were brave enough to come here and face cross-examination," he noted, saying that Samsung's case was represented by "marketers, not engineers" for the most part. The Galaxy S5 maker had decided in its defense not to present "one single person who could talk about how the infringing phones came to be." One of McElhinny's slides showed the accused Samsung smartphones arranged like a lineup of criminals.
Perhaps mindful of the jury's mostly non-technical makeup, McElhinny kept his style relaxed and conversational, even when talking about specific patents. When showing the "slide to unlock" patent, he noted that Samsung's expert had described it inaccurately -- and asked the jury "was he trying to help you get to the correct decision?" He also joked that while the jury will have access to all of the accused smartphones in the jury room, "you're not allowed to play games on them."
Of Samsung's evidence, he told the jury that Samsung was trying "to sell you a version of the story that never, ever happened," pointing out numerous examples of contradictions between Samsung witness statements on the stand and what was presented in their own internal documents. "Every point Samsung has tried to make in this trial is contradicted by its own documents," he said, "but somehow this doesn't seem to embarrass them."
As for the "data detector" '647 patent that was the subject of a special session of extra explanation on Monday, McElhinny was particularly animated in dismissing Samsung's claim that the patent should be invalid because it was "obvious." To that, he asked the jury "how can it be obvious if thousands of [smartphone engineers] ... never thought of it until Apple's inventor did it?"
McElhinny said that unlike Samsung, Apple's statements in the trial matched what it said in its own internal documents (with, a cynic might note, perhaps some shifts in contextual interpretation, such as Apple's explanation of Jobs' "holy war with Google" comment). After showing the jurors a jury form filled out as Apple would want it, and in turn describing each patent at stake in Apple's case, he lightened the mood by taking a moment to sip some water and ask the jury "are we having fun yet?"
Perhaps heading off a point in Samung's upcoming closing, McElhinny told the jury that it's "not important" if Apple practices all the patents in the trial -- Apple invented them, and Samsung had no right to copy them. This brought an objection from Samsung, but Judge Lucy Koh shot it down (as she did all later objections from Samsung during Apple's presentations).
He also brought up the formerly-secret agreement between Samsung and Google in which Google agreed to indemnify Samsung against possible losses in this case, and also offered to help pay for and direct Samsung's defense. He said that this was why the jury didn't need to consider the Google factor in the case, since the indemnity deal "takes care of that for you."
McElhinny spent time on the fact that Samsung's lawyers were being paid by Samsung and Google, all of which brought more objections from Samsung that were again overruled. He hammered on the fact that Samsung did not disclose the agreement when asked if any other party was indemnifying Samsung at the start of the trial. "They lied to us," he said bluntly. "And they lied to us under oath." It is worth noting that Google's Director of IP and Litigation, Catherine Lacavera, was present in the courtroom.
He also addressed head-on the Jobs "holy war" email, saying that it was about a competitive war rather than wanting to actually kill off Android. Even though the jury are not technical people, observers in the courtroom murmured about that one. Samsung's strategy in this case, McElhinny said, was to downplay and trivialize Apple's patents, hoping for a break on the price of their infringement. "If Samsung can copy Apple's products [and] increase its market share and end up paying only a small fine, its strategy will be successful," he said.
McElhinny used the point to show that while Samsung may say in court that software isn't the reason people buy smartphones, its own marketing and internal documents prove that the experience provided by software "is the new value driver," urging the jury to "watch what they do, not what they say" in court. He wound down his pitch to the jury by reminding them that Apple hadn't wanted to sue -- it met with Samsung a year before the first case to discuss what it saw as blatant copying of its patented technology, but Samsung would not negotiate.
"And so, here we are, 37 million acts of infringement later. Apple cannot simply walk away from its inventions. And so we are counting on you for justice." His presentation took 1 hour and 30 minutes, leaving a half-hour for later in the day when it closes the trial with its defense against Samsung's charges.
Oddly, Samsung decided as it began its defensive closing that it would use four lawyers to present its case, one after another, since "none of us is as dynamic as Mr. McElhinny," to quote Samsung attorney Bill Price. He began aggressively, telling the jury that "you can't copy something from the iPhone if its not in the iPhone," a reference to one of the patents-in-suit that aren't actually features of the iPhone ("universal search"), and saying that Apple keeps using the term "copying" because "they have to get you a little angry to justify this [damages] number."
In his own attempt to re-interpret the CEO, Samsung's attorney said that the now-famous "crisis of design" memo issued by JK Shin that urged the company to make its "own version of the iPhone" was just him relaying the wishes of carriers, who wanted something like the iPhone." He painted Android as the barrier to an Apple monopoly, calling it "the world's alternative" to iOS. "We're not pointing a finger at Google," he said, "we're saying they independently developed these features, and they don't infringe [Apple's patents]."
He reminded the jury that Samsung had brought in executives (of the American branch), engineers and designers (from Google, and one of whom was credited with inventing the workaround for Apple's universal search patent that Samsung briefly used instead). By repeatedly saying that Samsung wasn't pointing to Google, but then giving Google credit for inventing (or infringing?) the technology, the company was in effect saying "don't sue us, sue Google."
Price told the jury that "every patent Apple claims is infringed in this case is infringed with the basic Android software," though that was technically incorrect (only four of the five patents are in Android). One court observer lated tweeted (to general agreement) that Samsung might be "hiding behind" Google so much not to get out of potential liability, but to diffuse the "foreigness" of the Korean-based company that might bias the US jurors (as it possibly did in the first trial).
Rather than take jurors back to 2007 as McElhinny had, Price focused on 2011 and the "holy war" comment. He argued that Samsung's hardware is what made it the most successful smartphone maker, not "Apple-style" software features (another moment when the gallery, presumably more tech-savvy than the jury, rolled its eyes). In an awkward moment, Price asked the jury to raise their hands "if they love Apple." Unsurprisingly, the jury did nothing. Calling the case against it "made up," Price noted that the Note 2 and Galaxy S3 -- which are accused of only violating two of Apple's patents -- outsold all the other accused Samsung devices combined.
Following a lunch break, Quinn partner David Nelson took over the closing. Attacking a lengthy section of McElhinny's closing where he praised the work of the US Patent and Trademark Office, Nelson urged the jurors to question the judgement of the patent office -- noting that the video jurors were shown to instruct them on the concept of patents itself noted that sometimes the patent office makes mistakes, which is why patent case law exists.
With Samsung's time winding down, Samsung attorney Kevin Johnson takes the lead as the subject changes to Samsung's charges of infringement against Apple. Samsung wants Apple to pay it $6.2 million over two patents, and uses this to again call Apple's damages claim "grossly inflated." The two patents -- one for videoconferencing and another related to organizing images and video on a computer -- were both bought from other companies, which Johnson says there is nothing unusual about. He noted that Apple didn't bring any witnesses to challenge Samsung's damages claims.
Johnson notes that one of Samsung's patents has since expired, but that doesn't get Apple "off the hook" for damages. With only minutes remaining, lead attorney John Quinn steps up to finish the closing, telling the jury his presentation was going to be "painfully" quick, and fulfills that promise by speaking incredibly rapidly, barely pausing for breath and turning red as he struggles to get out everything he wants to say as the clock counts down. Two decipherable phrases from the auctioneer-like torrent of words are "Apple doesn't own everything" and "We don't think we owe Apple a nickel."
Portion of jury damages form
Quinn also communicated that he thought Apple damages expert Professor Hauser's conjoint study, which surveyed people to find out how much value they place on particular smartphone features, was a "sham" worthy of a "used car salesman" and "completely contrived," and that "only a technogeek would buy smartphones for [the contested] features -- "I dare say nobody ever bought a phone because they wanted to get 'slide to unlock.'"
As Quinn begins to go hoarse from the forced non-stop talking, Prince handed him a note in an effort to get him to slow down. Quinn then shifted tactics and began skipping over portions of his planned presentation and some of the points that would have gone with them. He told the jury that any amount it awarded Apple would be seen as a victory, that his company would never "cave and capitulate" to the excessive demands of Cupertino, and closed by saying that "the people of Samsung ... believe that Samsung can get justic here in Apple's backyard" and urged Apple to stop spending so much time in court and "get back to work on that iWatch we've been hearing about."
Quinn finished more than four minutes over the allotted time, but was not forced to stop by Judge Koh. Apple attorney Bill Lee then began his rebuttal of Samsung's infringement charges, with 29 minutes of time remaining. He opened by reassuring the jury that he was "the last person you have to listen to" and promised to wrap things up quickly, but spoke in a relaxed manner.
Lee rather cleverly phrased what he had to say carefully, using terms that applied to his defense of Samsung's charges ... but which also could be interpreted as being about the entire case, walking a fine line that he never crossed over. He told the jury that Samsung's attorneys had characterized Apple's case as "dishonest, misleading, a sham" and then asked "why does Samsung resort to those characterizations? Because the facts and the law are with Apple." He noted that the jury had "not seen a single Samsung patent that was invented by Samsung" adding that this was because the company described itself as a "fast follower, not an innovator."
He asked the jury why Samsung would pay experts $5 million to sue over two patents it says are worth only $6 million, and then said that "only makes sense if you're trying to devalue patents," pointing out that Samsung bought the two patents it is pressing in its case after Apple sued them originally. This naturally sets of a flurry of objections that were quickly overruled, to the point where Judge Koh warned Samsung's attorneys that she would give Apple extra time if they continued.
Lee wrapped up his remarks by saying that Apple is depending on the jury to "recognize the difference" between fair and unfair competition, ending by saying "thanks from the folks at Apple." The judge then told the jury they would each get a verdict form and 15 sheets for notes. Unusually, the jury went into deliberations immediately, but will continue to work on the verdict from 9:30AM to 4:30PM each day.