Commentary

Apple-Samsung Decisions Could Have Major Impact

I’ve avoided coverage of the Apple-Samsung patent dispute the way many of us put off preparing taxes, even if we know it’s inevitable that we do so. I took heart when I read that U.S. District Judge Lucy Koh herself was aware of the soporific qualities of much of the proceedings when she said yesterday, “I need everyone to stay conscious during the reading of the instructions, including myself.” 

“To help,” blogs the Wall Street Journal’s Jessica E. Vascellaro,  “she said she would ask everyone to stand from time to time to keep the blood flowing.” They evidently slogged through it, as both sides delivered their closing arguments in San Jose late yesterday and the jury is set to begin deliberations this morning. It’s beginning to get interesting, indeed.

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“Two additional courtrooms were provided to accommodate the large number of reporters and observers who came to the San Jose courthouse for Tuesday’s closing arguments,” reportsFinancial Times’ Tim Bradshaw, “the biggest crowd yet seen in the case.” Most observers do not expect a quick decision. 

The trial centers on Apple’s contention that Samsung basically ripped off the iPad and iPhone. It wants offending products taken off the market and is seeking $2.5 billion in damages. 

“Everyone, even Samsung, thought that the iPhone changed the world,” Apple attorney Harold McElhinny of Morrison Foerster told the jury yesterday, “Samsung was the iPhone’s biggest fan … They tried to compete with it and when they couldn’t, they copied it.”

“Samsung’s lawyer countered that the technology giant was simply and legally giving consumers what they want: Smartphones with big screens,” the AP reports in the Washington Post. Samsung has called Apple’s contentions  “absurd” and it filed a countersuit claiming the Cupertino folks, by the way, infringed on some of its wireless technology. It wants $399 million in damages. 

The jury’s decisions, which must be unanimous, will have an impact on more companies than the two facing off in the courtroom.

"Anything that's bad for Samsung is bad for Google and will affect all of these Android companies," legal consultant Florian Mueller tellsUSA Today’s Scott Martin. 

“Samsung, in effect, is a proxy for Google because the search giant's Android software powers the Samsung devices at stake,” Martin explains. “The outcome could have implications for patent cases worldwide and for other makers of Android-powered devices.”

Koh has been urging Apple and Samsung to settle out of court. Apple CEO Tim Cook spoke yesterday with Samsung’s former CEO, Choi Gee Sung, reports Bloomberg’s Joel Rosenblatt, for at least the second time.  They were not able to reach an agreement, according to a Samsung lawyer. 

Koh first caught my eye last Thursday when she opined that an Apple lawyer’s request suggested that he was smoking crack. Apple had submitted a 75-page briefing that indicated that it would call 20 more witnesses in the four hours of argument it had remaining.

"I am not going to be running around trying to get 75 pages of briefings for people who are not going to be testifying," Koh told Apple's lawyer Bill Lee, CNET’s Josh Lowensohn reports.

"I mean come on. 75 pages! 75 pages! You want me to do an order on 75 pages, (and) unless you're smoking crack, you know these witnesses aren't going to be called when you have less than four hours," Koh said. Lee assured Koh he was not on crack.

Earlier in the week, Koh “told both companies that she didn't trust any information that came from either side's lawyers, asking instead to see papers,” according to Lowensohn. 

“Koh has a history of making comical remarks in the courtroom.,” writes the Los Angeles Times’ Deborah Netburn. “She gives "bio breaks" instead of bathroom breaks and has been known to ask jurors if they need more caffeine.” 

Good for Koh for breaking up the monotony and keeping jurors on their toes. Mashable’s Peter Pachal compares the case to the patent battle between Orville and Wilbur Wright and Glenn Curtiss, saying that “the Wright brothers’ patent was so broad, it was virtually impossible to build any kind of aircraft without infringing on it.” The long-running legal battle was settled by government fiat in the interests of fighting World War I.

While national interests are not at stake in this case, the jurors’ decisions will reverberate for a long time. 

“They’ll decide --  patent by patent, product by product -- exactly where Samsung or Apple may have crossed the line,” Pachal writes, “and in doing so broadly answer the question: Where patents are concerned, how much copying is too much?” 

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