Apple and Samsung today delivered their closing arguments in a long-running trial between the two consumer electronics powerhouses in San Jose, California.
Hanging in the balance is more than $2.5 billion in damages Apple is asking and a precedent which will have a great effect on the patent system of the U.S. and of industrial design in the whole world.
However, before the courtroom heard the closing arguments of both camps, the jury and District Judge Lucy Koh had to wade through 109 pages of jury instructions. This was no easy task as the judge even said that she needed “everyone to stay conscious during [the reading of the instructions], including myself.”
“Upon the conclusion of the arguments you will begin deliberating today,” the judge said. Sure enough, there wasn’t enough time after Apple and Samsung delivered their closing arguments.
Deliberation, which may span a day up to weeks, will begin tomorrow.
Judge Koh has been strict with time in this particular trial. She gave Apple and Samsung 25 hours each to present their case and question their witnesses as well as witnesses of the other camp on the stand.
Apple and Samsung were also given four hours each to make their closing arguments and rebuttals.
Apple Closing Argument
Apple lawyers Harold McElhinny and William Lee delivered the closing argument and rebuttal for Apple respectively.
McElhinny laid out three points the closing argument centered on.
“First, is that documents are the most valuable key in the truth-finding function. Historical documents are almost always where the truth lies,” he said.
His second point was that “If you want to find out what really happened, if you want to see the truth, make a chronology of it.”
Thirdly, he said that Samsung did not respect the legal proceedings. “No Samsung executives were willing to come here from Korea. Instead of witnesses, they brought you lawyers,” he said.
According to the Apple counsel, the iPhone development project was initiated by Apple cofounder Steve Jobs way back in 2003. He described the iPhone as possibly “the most famous product in the world.”
Pointing out this fact, he showed the courtroom a slide showing Samsung phones saying “These are what Samsung’s phones looked like between 2004-2007.” Then he showed a slide after this of Samsung phones after the iPhone.
The lawyer then referenced internal Samsung documents that praised the iPhone. Furthermore, he said that the product of the discussions inside Samsung about the iPhone was the original Galaxy S which debuted in 2010.
The lawyer then said that smartphone sales for Samsung increased after it being stagnant before they copied the iPhone.
As the lawyer moved on to the design patents held by Apple and which it argues have been infringed on by Samsung, McElhinny addressed infringement and invalidity.
“We’re talking about comparing design to design,” he said. “No Samsung witness ever sat in that chair and said ‘those designs are not similar.”
He said that infringement should be judged by “overall appearance” and not “minor differences.”
He showed the crowd a Nokia Lumia phone and a Sony Xperia Arc phone. He said that “Not every smartphone needs to look like an iPhone.”
McElhinny later said that “Samsung was the iPhone’s biggest fan. They knew a good thing when they saw it. They tried to compete with it, and when they couldn’t, they copied it.”
As for tablets, Apple argued about infringement and dilution. “No one can say there is only one way to design a tablet. Or one way to design a tablet,” the lawyer said.
“You cannot help but reach the conclusion that these products are so similar… that Apple’s products wil be viewed as less than unique in the marketplace,” he asserted. “They have spent a billion dollars mimicking our designs and holding it out to the world so the Apple design is no longer seen as unique.”
As for utility patents, McElhinny said that “No Samsung expert, no Samsung witness testified that Samsung is not using the bounce-back feature. No one came here and denied it.”
When he discussed the double tap to zoom patent, he said that “Samsung never put up a non-infringement defense.” He also made a dig at the DiamondTouch and LaunchTile, both used by Samsung as prior art example in their defense.
McElhinny then proceeded to discuss damages. He said: “Samsung makes fun of our damages claim… but there are two factors that are driving the damages numbers in this case.”
According to him, Samsung has sold 22.7 million devices that infringe on Apple patents. Apple also said through its lawyer that Samsung should pay damages since they were given notice by the company in August of 2010 that their product infringe on their intellectual property.
Apple presented the following damages scenario to the court.
Samsung Closing Argument
Unlike Apple, Samsung had just one lawyer deliver their closing argument and rebuttal.
Samsung lawyer Charles Verhoeven said straight of the bat that design patents are Apple’s main argument in this case. “Apple is asking you to award it over $2 billion” for alleged infringement of these design patents, the lawyer said.
Making a dig at the massive damages Apple is asking, he said that “you’d think that if Apple is going to come in here and ask for over $2 bilion in damages they might have used all the money” to get an expert to show the court that people really confused Samsung smartphones and tablets and the iPhone and the iPad.
Verhoeven argued that instead of competing in the markets, Apple is “attempting to block its most serious competitor from even playing the game.”
He told the jury that if they favor Apple, their decision “could change the way competition works in this country.”
Waxing poetic about the US and Silicon Valley, he said “Think about Silicon Valley, the way it used to be, back in the day… now there’s tens of thousands of tech jobs…Consumers deserve a choice.”
He also said that “Competition is what built this country.”
Echoing an argument frequently heard in comments sections in reports about this trial, the lawyer brought up a comparison with the TV market.
He said that TVs all looked alike with their rectangle shape and “minimalist designs”. He said that smartphones are the same and argued that form followed function.
His next point implicitly admits that the iPhone was a device that marks a turning point in the mobile industry. He said that the BlackBerry smartphone is also one of those devices. He pointed out that hen it came out, every competitor brought out QWERTY phones.
The lawyer then proceeded to show the court phones in the market which all are rectangle and have touchscreen displays.
He said that Apple is of the opinion that it is “entitled to have a monopoly on a rounded rectangle with a touchscreen.” He said that “Apple has no credible evidence” that people confuse Samsung’s devices with Apple’s devices.
“There is no deception, no confusion, and Apple has no evidence of it. Consumers make choices, not mistakes,” he said.
“The only way you’re going to find substantial similarity between these products is if you think having a device with a rectangular screen and rounded corners is unique,” the lawyer said. He then proceeded to stress details that make the Galaxy devices unique compared to Apple products.
He touched on the Apple ‘889 design patent and how the Galaxy Tab 10.1 doesn’t have the seamless and shiny smooth back of the iPad prototype that was the basis of the patent, a start up of a Samsung Android device that clearly displays the Samsung and Droid trademarks, Dr. Susan Kare’s testimony saying that she just looked at the visual similarities of the icons and not their function, the larger screen of their smartphones compared to the iPhone and a start up of the Galaxy Tab showing Samsung Galaxy Tab clearly for a long time as well as the Verizon logo.
“What they’re suggesting is that Samsung’s phones looked one way before the iPhone and another way after it,” the Samsung lawyer said. “I submit to you that this is an intentional attempt to mislead the jury.”
Aiming at the slide shown by Apple of Samsung phones before and after the iPhone, he showed a much more detailed chart that includes other phones made by Samsung. These other phones included in the slide are not even close to resembling the iPhone.
“They’re intentionally ignoring an entire category of phones. This is a shell game. They’re pretending these phones never existed,” he stressed.
“Samsung’s business model is all kinds of different phones for all kinds of different people,” Verhoeven said.
According to Samsung, its internal documents referencing Apple products are research documents. Apple has argued that internal documents from the South Korean tech powerhouse are proof that it copied its products. Samsung says research like this is standard practice in the industry.
“They’re mixing and matching, Verhoeven said. “They’re taking a document from a completely different part of the company” arguing it is proof that Samsung copied products.”
The lawyer asserts that Samsung is “a good corporate citizen.” He added that the company just wants “to build products consumers want.”
“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.”
Touching on the ‘381 patent which covers the bounce effect of the iPhone when you reach the end of a screen, the lawyer said the DiamondTouch and the Tablecloth devices would have led the US patent office to not grant the patent if it had known these devices.
In contrast, Samsung’s 3G patents are state of the art, the lawyer said.
As for damages, Verhoeven stressed that Apple’s expert witness Terry Musika who computed their claims was paid $2 million for his service. He also pointed out that Musika did not account for other expenses like R&D and marketing costs.
He also made sure to point out that Samsung is asking for reasonable damages for Apple’s alleged patent infringements.
Apple and Samsung Rebuttals
Apple lawyer William Lee says that “We’re going to have them to protect our investment in innovations…Because if we don’t, we won’t have people like Apple spending five years in a room coming up with a phone that revolutionizes the world.”
“They copied our product, but what they’re saying to you is we don’t want to pay,” he said.
According to him, Samsung’s argument that they had a broad lineup of products that Apple chose to not present in closing is overshadowed by the fact that the company, in its internal documents, said that they had a “crisis of design” when confronted with the iPhone.
Lee says Apple spent five years making the iPhone and that Samsung copied it in three months. “That’s truth, and that’s simple, clear, and undisputed,” he said.
As for Samsung patents, he pointed out that Samsung does not even use them in their products meaning they are old technology.
Samsung, he says, does not play by the rules.
“You’re going to have to decide who lived by the rules and who didn’t live by the rules. And those who didn’t live by the rules were Samsung,” Lee told the jury.
“Make no mistake about it: Apple wants to compete… Apple wants to compete fairly and squarely with inventions and innovations and products,” he said.
He said that Samsung should not get away with what they did. The jury should not give the Samsung a get-out-of-jail-free card.
According to him, a guilty verdict for Samsung would reaffirm the American patent system.
Samsung lawyer Verhoeven said in refutation to this that Samsung played by the rules, specifically with ETSI guidelines for their standards-related patents.
“If Apple wanted a FRAND license they needed to come to us,” he also said.
As closing, he asked the jury to let Samsung “compete freely in the marketplace instead of Apple trying to stop it in the courtroom.”
Both Apple and Samsung lawyers thanked the judge and the jury after their closing arguments. Deliberation for the legendary patents dispute may take weeks, observers note.
Apple first sued Samsung in April of last year and the legal war has now expanded into dozens of cases in courts in more than 10 countries around the world.