“So can you provide documents where Samsung has said the same types of things about Nokia?” Lee returned.
“I’m not sure how I’d do that.”
“The answer is that you can’t,” Lee shot back. “The only mention of ‘crisis of design’ in all of Samsung’s documents is in reference to Apple after the iPhone’s introduction in 2007.”
In later testimony, Apple landed another blow, introducing another internal Samsung email that mentioned pressure by Google to redesign its Galaxy devices, so they didn’t look so much like the iPhone and iPad. “Google is demanding distinguishable design vis-a-vis the iPad for the P3,” the email said, referring to the original Galaxy tablet by its code name.
Samsung’s defense was that most of the documents comparing the iPhone and Galaxy were just a routine competitive analysis. When Apple rested its case and it was the other side’s turn to summon witnesses, Samsung called one of its senior designers from Seoul to testify that she hadn’t copied the distinctive icons on the iPhone’s and iPad’s home screens. Through an interpreter, Jeeyeun Wang spoke emotionally about how she and her team toiled around the clock to arrive at its own designs.
“I slept perhaps two or three hours a night,” Wang said, adding that she had so little time that she hadn’t been able to breastfeed her newborn. As she spoke, tears rolled down her cheek.
The designer explained how Samsung’s app icons were square like Apple’s for functional reasons. “It could not be something that is more of a horizontal type of box or something that’s more vertical because to do so would mean that there would not be either enough space or too much space for the finger touching,” she said, adding that the image for the phone icon tilted to the left because that was how people made phone calls.
She also explained how Samsung’s choice to use a flower to depict the photo gallery app—similar to Apple’s icon—was mere coincidence. Wang insisted that they were inspired by a flower wallpaper option in Samsung’s televisions.
“When people think of a picture reviewing or viewing a picture, they would think of a landscape that’s more or less a horizontal landscape, perhaps a mountain or a river. . . . When we look at close-up shots, generally speaking, people would be thinking in terms of something like a flower.”
Samsung also introduced several expert witnesses to try to prove that Apple did not invent the technologies and features such as the rubber band function that it had accused Samsung of copying. It additionally argued against Apple’s claim that their products were similar enough to confuse consumers.
The jury listened intently, jotting down notes and occasionally nodding. A few drifted off when the discussion became technical. Several times, Koh paused the proceedings to give the jurors five-minute breaks to stretch their legs.
During the trial, a devastating spoof on Conan O’Brien’s late-night show lampooned Samsung as a copycat. The video showed a supposed Samsung executive as he made a case for how different his company’s products were to Apple’s.
“Since we entered the personal electronics space, Samsung has created products that, as you can see, bear no similarity to Apple’s,” he said, showing nearly identical phone and tablet devices. “Notice the grayer edge of our Galaxy phone? And what about our Galaxy tablet? Not even close.”
As he changed into an all-black outfit and glasses in the style of the late Steve Jobs, the fake Samsung shill continued. “Samsung’s originality is also on display in our home appliances, whether it’s our new Macrowave oven, our Vac Pro vacuum cleaner, or iWasher with scroll-wheel controls. Don’t believe me? Then come to our retail stores where you can talk more about our products with a Samsung Smart Guy.”
Switching to a British accent, the same actor next posed as Samsung’s version of Sir Jonathan Ive to explain how the company stayed innovative.
“It’s very simple really. We stay true to the vision of Samsung founder Stefan Jobes,” he concluded as the screen flashed a mashup of Samsung and Apple’s logo with the words “Samsapple—Think Slightly Different.”
Samsung was cornered. Faced with the inescapable fact that its smartphone and tablet appeared nearly identical to Apple’s, the Korean company’s legal team was struggling to offer the jury a coherent counternarrative. During opening arguments, Samsung’s lead attorney had acknowledged that his client had been “inspired” by the brilliance of Apple’s designs and that this inspiration had spurred Samsung’s competitive instincts. Now, despite the most diligent efforts of Samsung’s attorneys, evidence was mounting that the inspiration had blossomed into outright thievery. The company’s assertion that Apple had copied some of its key mobile technologies inside the phone was buried under Apple’s compelling story line.
Samsung’s desperation was showing. Again and again, its lawyers were running afoul of Judge Koh. Ahead of the trial, the judge had denied the company’s request to show images of iPhone-like designs that were in development before the iPhone as well as a conceptual drawing by one of Apple’s industrial designers depicting an iPhone 4–like phone with Sony’s logo on the back. Samsung had wanted to use them to prove how unoriginal Apple’s designs were, but Koh wouldn’t allow it. Her reasoning: Samsung had not previously disclosed or relied on some of the documents to build its case. Some weren’t even relevant.
Before the opening arguments, Samsung’s lead counsel, John Quinn, had tried one more time to get the slides admitted. “Your Honor, I’ve been practicing thirty-six years. I’ve never begged the court like I’m begging the court now to hear argument on this issue,” he implored. “What’s the point of having a trial? What’s the point?”
“Mr. Quinn,” Koh responded. “Don’t make me sanction you, please!”
Even though he failed to make his case, he had at least established a basis to appeal the verdict later if it were unfavorable. But Samsung wasn’t ready to surrender the point. That afternoon, the company disseminated the drawings to the media and took its case public.
“The excluded evidence would have established beyond doubt that Samsung did not copy the iPhone design,” said the attached statement, arguing that Apple’s designs copied Sony’s and were therefore not original. “Fundamental fairness requires that the jury decide the case based on all the evidence.”
The judge was furious.
“Call Mr. Quinn. I’d like to see him today,” she told Samsung’s attorneys after the press release was brought to her attention. “I want to know who released it, who authorized it, who drafted it.”
Quinn, however, was at a function with the Academy of Motion Picture Arts and Sciences, for whom he served as general counsel. When the judge was informed of that, she crossly told his colleagues to have him file a report about what happened by the next morning.
Worried that Samsung’s stunt had contaminated the trial, Koh questioned the jurors to make sure none of them had seen the news. Apple sought a sanction against Samsung accusing the company and its counsel of trying to prejudice the jury but was denied.
That same morning, Samsung crossed the judge again by quietly bringing in five prospective Samsung witnesses, two interpreters, and three in-house attorneys to see the courtroom without Koh’s knowledge. One of them had even asked to take a photograph, which was against the law.
“What’s going on here?” Koh demanded. Called onto the carpet again, the lawyers explained that they just wanted to familiarize the witnesses with what a U.S. courtroom looked like. But it was a break from established procedure. Obviously aware that they were pushing the boundaries, the lawyers had sought approval for the visit through a federal judge based in Washington, D.C., rather than through Koh’s office.
This infuriated Judge Koh even more. “I will not let any theatrics or any sideshow distract us from what we are here to do, which is to fairly and efficiently try this case.”
By the middle of week three, fatigue was settling in. Some of the jurors worried they would have to take more time off from work. Staff attorneys were exhausted after wo
rking nearly around the clock with little sleep and uninspired meals of pasta, fish, and beef that were catered into the war rooms. They had been in San Jose for so long that they were running out of menu options. Occasionally, they would sneak out for a proper dinner at places like the Grill on the Alley at the Fairmont, where there would be awkward encounters with the other side.
The judge had everyone on a tight schedule. While the trial was proceeding, teams of attorneys for both companies were preparing exhibits and legal briefs in addition to prepping witnesses and the attorneys in charge. Each evening opposing teams examined each other’s evidence and exchanged objections before working through the night on their briefs, which had to be turned in at 8 a.m. sharp. The judge’s staff then flew into action, so Koh could hand down decisions on the issues by nine, when court went into session.
Attorneys for Apple and Samsung stressed over whether they had enough time to fully argue their case. Samsung’s counsel had devoted so many hours to cross-examining Apple witnesses that they had little time to make their own case. Both sides reminded witnesses that they were “on the clock,” asking them to cut to the point. The attorneys frequently sought yes-or-no answers. The testimony wandered through mountains of technicalities. The videotaped depositions of Samsung’s Korean executives, which played on a courtroom monitor with voice translations, were mind numbing. At times members of the jury looked ready to dose off, prompting Koh to ask them whether they needed caffeine.
When Samsung threatened to file 140 pages of objections if Apple didn’t narrow its witness list, Judge Koh lost it.
“Please don’t do this to me. . . . Please . . . I cry uncle,” she said, explaining how thinly her staff was stretched to respond quickly to all the motions in a timely manner. “There is just a human limit to what a ragtag team can do compared to your legions of lawyers.”
Throughout the trial the judge had repeatedly expressed hope that the two corporations would reach a settlement, thereby saving everyone the trouble of finishing the trial. But toward the end, she conceded that she might be “pathologically optimistic.”
As the trial lurched into its fourth week, it was finally time for the jury to deliberate. First, though, the jury had to endure the reading of instructions—109 pages that the two sides had argued over for weeks.
Judge Koh prepared the jury for the ordeal ahead.
“I need everyone to stay conscious during the reading of instructions, including myself,” she said. “So we are going to . . . stand up occasionally to make sure the blood is still flowing.”
In closing statements, Apple’s McElhinny branded Samsung one last time as a copyist. He reminded the jury of all of its evidence showing how Samsung sought to compete against Apple by copying features of the iPhone and iPad. He drew special attention to the fact that no Samsung executives from Korea testified in court in person.
“Samsung has disrespected the process,” he said. “Instead of witnesses, they sent you lawyers. Samsung did not call its most important designers and inventors even though we know they were here physically present in San Jose.” McElhinny’s statement was not entirely fair. Samsung had wanted to call them, but it had run out of time.
Samsung’s attorney Verhoeven once again hammered Apple for its anticompetitive behavior. “The real reason Apple is bringing this case is because rather than competing in the marketplace, Apple is seeking a competitive edge through the courtroom,” he said, charging that it was “seeking to block its biggest and most serious contender from even attending the game.”
Consumers deserved a choice between lots of great products, he argued, telling jurors that their decision could change the future of global competition.
“Is this country going to have vigorous competition between competitors, or is it going to turn into a country with giant conglomerates armed with patent arsenals?” He also made a final case for how the iPhone was evolutionary. “Guess what? Every single smartphone has a rectangular shape, rounded corners, and about ninety percent of the real estate of the front of that phone is the screen,” he said. “There’s nothing nefarious about this. It’s the way technology has evolved. Apple is here seeking two billion dollars in damages from Samsung for alleged ornamentation on that little ten percent around the screen. According to Apple, the way it’s interpreting these patents, it’s entitled to have a monopoly on a rounded rectangle with a large screen. It’s amazing really.”
In a rebuttal, Apple’s attorney Bill Lee left the jury with one final thought.
“There’s a saying among attorneys. If you have the facts, stand by the facts. If you don’t, attack your rival’s clients, attack their witnesses, and attack their lawyers. And that’s what Samsung has done.”
In complex cases like this one, it wasn’t uncommon for juries to deliberate for days or sometimes weeks. Not this time. That Friday, after just twenty-one hours, the nine jurors informed the bailiff that they had a unanimous decision. The verdict had been reached so swiftly that lawyers on both sides were unprepared. One attorney showed up in a polo shirt and jeans.
“Let me first ask you if the jury has reached a verdict,” the judge asked the foreman, Velvin Hogan.
“Yes, your honor.”
The twenty-page verdict took a half hour to read. As the clerk announced each decision, the Samsung attorneys looked downcast as they poured over the verdict papers. The company representatives attending the trial also kept their heads down as they jotted notes. A couple of them appeared to be sending the results via the Internet from their seats, presumably to Samsung’s Seoul headquarters.
When all was said and done, the verdict was largely a win for Apple, which was awarded more than a billion dollars in damages. Not all of the Galaxy phones and tablets were found to have infringed on every patent, but the jury mostly had found in favor of Apple. Samsung got nothing. The jury determined that none of Samsung’s patents had been infringed upon. A Samsung executive in attendance was so upset by the verdict that he angrily brushed past a reporter seeking comment. Apple’s stock jumped by $11.73 to $675 in after-hours trading.
Cook was triumphant in an email to employees. “Today was an important day for Apple and for innovators everywhere,” he wrote. “Values have won and I hope the whole world listens.”
Despite the short turnaround time, the verdict had not come easily. The jury had found Apple’s case to be more convincing, especially when they saw the internal Samsung reports and communications that compared the iPhone and the Galaxy. Samsung had also left a poor impression with the videotaped interviews of the Korean executives.
“I thought they were kind of arrogant,” juror Manuel Ilagan said. “Maybe it’s the culture, but my impression was they didn’t want to be there.”
The jury had been systematic as they reviewed the instructions that the judge had provided. The verdict form was twenty pages long and complicated, but the group had bonded over the days they had spent together, allowing them to efficiently divvy up responsibilities. Hogan, whom they referred to as “Vel,” was unanimously chosen to be the foreman because he had owned patents himself and understood the process the best. Hogan had arrived at least a half hour early on many days during the trial to read the patents and study the evidence. David Dunn, the bicycle shop manager, had organized the various devices for examination. He was comfortable using the devices and could quickly demonstrate whatever function they were examining. AT&T product manager Peter Catherwood polled the group and calculated the damages. Ilagan, a systems engineer, helped explain some of the terminology and the concepts to those who didn’t understand them.
Hogan later explained how he had a revelation while watching television after the first day of deliberations.
“I was thinking about patents, and thought, ‘If this were my patent, could I defend it?’ Once I answered that question as yes, it changed how I looked at things.”
Hogan was also adamant that they refrain from addressing Apple’s unpatented physical design claims. It was the
government’s job, not the jury’s, to make that call.
“We didn’t whiz through this. We took it very seriously,” he said. “We didn’t just go into a room and start pitching cards into a hat.”
The experts’ testimony largely fell on deaf ears. The jury concluded that, for hundreds of dollars an hour in pay, the experts were no more than hired guns ready to say whatever their client told them to say. During the testimony, Ilagan had made a note to himself about the experts on both sides: “full of it.”
In Munich, the patent expert Florian Mueller was having a restless night when the verdict came in at 1 a.m. Germany time. Upon checking his email on his Galaxy Note phone and finding a news alert from San Jose, he got out of bed to update his blog. Pouring himself a glass of San Pellegrino mineral water, he walked over to his computer in his jogging pants and T-shirt and sat down. After scanning the Twitter feeds and reading the verdict form filed online by the court, he began writing analysis for his blog.
“This ruling is not thermonuclear on its own, but in its aftermath, we will not only see a lot of wrangling . . . but there will also be, even more importantly, a push by Apple to enforce many more design patents and utility (hardware and software) patents against Samsung,” Mueller predicted. “There can be no reasonable doubt that Samsung and Google have engaged, and continue to engage, in “copytition” rather than wholly independent creation. Somewhere the courts have to draw the line and afford some degree of protection to the innovators.”
For Mueller, the verdict was not big news. He had expected Apple to be handed a large award, but the amount was unlikely to put a dent in Samsung’s substantial coffers. The more important question was whether this verdict would give Apple the ammunition to win an injunction against Samsung. What was at stake in the injunctions was ultimately worth many more billions. That battle was still to come.
Haunted Empire: Apple After Steve Jobs Page 26
