Both sides presented their closing arguments in the Apple vs. Samsung trial, with each side trying to gain the upper hand before jury deliberation, which is expected to start on Wednesday.
The proceedings on Tuesday began with the reading of the 109 pages of jury instructions by Judge Lucy Koh. The lengthy list of 84 instructions covered details of patent and anti trust law, infringement, and trade dress. From time to time, Judge Koh instructed everyone to stand up and “get the blood flowing again.”
Apple’s Closing Arguments
The Verge reported that Apple lawyer Harold McElhinny made three main arguments, the first was, “documents are the most valuable key in the truth-finding function.” Going on to say that while witnesses can be incorrect, “historical documents are almost always where the truth lies.”
Point two, was to take into consideration the timeline of events leading to the court case. McElhinny went over the chronology for nearly 20 minutes, beginning with the development of the iPhone in 2003, leading up to and ending with Apple’s allegations that Samsung had copied the look and feel of the iPhone and iPad. During this part of his argument, he presented the two now familiar slides illustrating Samsung devices before and after the 2007 launch of the iPhone.
McElhinny also pointed out the “crisis of design” document in which the Galaxy S was pitted against the iPhone, with Samsung engineers noting the many features iOS handled more efficiently than Samsung’s devices.
Saying Samsung’s executives were “were bound and determined to cash in on the iPhone’s success.” He attributed the company’s resurgence in the marketplace to the allegedly copied features, noting sales “took off after the first iPhone-derived product was added to the mix,” in reference to the Galaxy S. “They were copying the worlds most successful product,” McElhinny said in closing his second point.
The attorney then brought into question the way Samsung handled the case.
“No Samsung executives were willing to come here from Korea,” McElhinny said. “We called some of their top people. … Samsung had a chance to defend itself in this case; instead they sent you lawyers. Instead of witnesses, they brought you lawyers.”
Apple disputed Samsung’s assertion that the iPhone’s patents are obvious, functional and based on prior art, saying there “has been a complete failure of proof” regarding invalidation of Apple’s design patents.
In conclusion, McElhinny defined the two factors behind Apple’s claims: Samsung sold 22.7 million infringing handsets up til now, and sales of those handsets generated $8.16 billion in revenue for the company.
McElhinny then presented four different damages proposals ranging from $519 million to $2.5 billion.
Samsung’s Closing Arguments
It was clear that Samsung attorney Charles Verhoeven would take no prisoners from the start of his closing argument. He began by portraying the trial not as a battle between two tech monoliths, but as a struggle for the American dream. Apple is “attempting to block its most serious competitor from even playing the game,” he said, stressing that “competition is what built this country.” Saying the jury’s decision could change the way competitions works in the United States.
Dismissing Apple’s claims of customer confusion, he said, “”The fact is consumers make choices, not mistakes… there’s no deception, there’s no confusion, and Apple has no credible evidence of it.” He went on to say that Apple thinks it should have a monopoly on rounded rectangles with a touchscreen. As an example of form following function, he said, “Just think about walking into a Best Buy store. You go into the TV section. All of the TVs look the same. They’re all boxes. They’re all flat screens. They’re all minimalist designs.”
“Let’s not pretend you can patent a colorful row of icons.”
Verhoeven then launched attacks on many of Apple’s witnesses, including icon designer Susan Kare. Kare had said during cross-examination that she had conducted a visual comparison of Apple and Samsung icons, not a functional one. “This is their expert,” he said, condescendingly. “And she said she didn’t know.” After comparing the iPhone icon layout to the Samsung Fascinate, he turned to the jury. “And let’s not pretend you can patent a colorful row, a colorful matrix of icons.”
Then, attacking Apple’s concerns about customer confusion, he said they were overblown, a “shell game”. “All this copying nonsense is hand-waving from Apple,” he said. “They know just like I know, just like you know, that no one is going to be confused when buying a smartphone.” The jury at this point was obviously engaged with Verhoeven’s oration, leaning forward in their seats. Verhoeven then concluded hurriedly, apparently conscious of his time limit.
When Verhoeven finished, William Lee began Apple’s rebuttal, immediately addressing Verhoeven’s “shell game” comments. “I’ve been doing this for 37 years, and I’ve heard that more today than at any other point in my career.” Attempting to paint Samsung as a company that acted in bad faith, he told the jury, “They copied our product, but what they’re saying to you is ‘we don’t want to pay.'”
“It took Apple five years to create this revolution, and Samsung took three months to copy it. That’s truth, and that’s simple, clear, and undisputed.”
The last few moments were handled by McElhinny as Apple’s attempted to appeal to the juror’s patriotism. If you find Samsung infringed, “you will have reaffirmed the American patent system,” he said. “You will have upended Samsung’s cynical game plan.” Ending with, “they will not change their way of operating if you slap them on the wrist,” before thanking the jurors for their time.
Verhoeven then launched into a impassioned defense of Samsung’s alleged FRAND violations, a topic that had received limited attention during the trial. Several jurors seemed disinterested in the topic.
Verhoeven then finished, saying, “Let’s have Samsung compete freely in the marketplace instead of Apple trying to stop it in the courtroom.” He then thanked the jury and walked back to his table. Judge Koh then reminded him he still had time remaining. Verhoeven took another moment to offer a more generous thank you to the jury.
The nine jurors now have a gargantuan task ahead of them, they have a 20 page verdict form, and mountains of evidence to dig through.
Deliberations begin Wednesday morning.