It’s Closing Time as Apple Makes Final Case That Samsung Infringes Its Patents
Each side will get two hours to make their case to the eight-member jury, with Apple up first.
As a refresher, Apple is suing Samsung over five patents and seeking in excess of $2 billion. Samsung, for its part, argues it did not infringe, that Apple’s patents are invalid, and that Apple’s damage claim is a “gross exaggeration.” Samsung has also countersued Apple for infringing two patents.
For more background, here’s our cheat sheet on the case.
Come back at 9 am PT for all the fun. In the meantime, here’s some theme music.
Update, 9:25 a.m.: Apple’s lead attorney, Harold McElhinny, is making his closing, starting by telling the jury how things came to be where they are.
He promises to try to help the jury with what he says is a difficult task.
McElhinny begins by recounting the early days of the iPhone.
“These products were created by true geniuses, people like Steve Jobs,” he said, noting that Jobs mentioned at its January 2007 introduction that Apple had filed for dozens of patents on the iPhone. That, McElhinny says, essentially put rivals on notice that they could not simply copy the iPhone.
But, he said, that’s what Samsung did.
He then points to some of the juiciest of what Apple calls the “copying documents,” including a 2010 memo where Samsung described a “crisis of design” as well as to a meeting later that year where Apple accused Samsung of copying and told it to stop.
9:28 am: McElhinny is also describing the three Samsung entities that are being sued in the case — Korea’s Samsung Electronics and two U.S. subsidiaries. One company not being sued directly, he notes, is Google.
“Google is not a defendant in this case,” McElhinny said. Of course, Apple itself introduced testimony that Google has agreed to indemnify Samsung on at least two of the patents at issue in the case and to take over defense of the related claims.
9:33 am: McElhinny is also trying to shoot down Samsung’s defense in the case that the patents at issue should be ruled invalid because they were obvious. You can’t use hindsight, he tells the jury.
9:35 am: Some other key points from the early moments of Apple’s closing include the fact that Apple invented the five patents it is suing over (Samsung purchased the two it is counter-suing Apple with).
McElhinny notes that top Apple executives came in person to testify while no one from Samsung’s Korean parent company testified in the case.
9:39 am: McElhinny is now going patent by patent through each of the five patents, laying out the documents and witness testimony that go to the notion that each of the accused patents is actually infringed by Samsung’s products, that the infringement is willful and also that Apple’s patent is valid in the first place.
“The fact that it acted willfully is beyond dispute,” McElhinny said, though of course Samsung does indeed dispute this.
10:04 am: After going through four out of five patents, Apple lawyer McElhinny takes a break, drinks from a water bottle and asks the jury, “Having fun yet?”
10:08 am: McElhinny finishes on the specifics of each patent and is likely to go on to damages. Before that, he said he wants to call out a red herring.
McElhinny notes that whether Apple uses the patents in the case is irrelevant. “The issue in this case is Samsung’s conduct,” he said.
The other is, of course, Google. But McElhinny says that Samsung’s conduct — not Google’s — is the issue.
“At the end of the day Google should not be an issue for you,” McElhinny said.
At the same time, Apple is making the argument that it matters that Google is defending Samsung. Apple is also making an issue out of the fact that Samsung said under oath that it was not seeking indemnification from any party even though emails introduced in the case show that it was already having discussions on that point with Google.
10:10 am: On to damages.
“This is the heart of this case,” McElhinny said. He makes the same argument he used in the first trial that there are two ways that Samsung can win the case. One, if the jury finds that Apple doesn’t infringe. That, he said, is a reasonable way to win the case.
However, McElhinny said if the jury awards only a small amount of damages then it will have won the case.
10:19 am: McElhinny is making the case why Apple deserves lost profits rather than just a royalty for some of the infringed products. There are two kinds of damages Apple is seeking — lost profits and a “reasonable royalty.”
One type of lost profits can be awarded either for devices Apple would have been able to sell during the time Samsung would have had to take certain products off the market to redesign them. The other, known as “diminished demand” lost profits, applies to devices Apple could have sold had it been competing against a Samsung device that didn’t have the patented feature.
If the jury determines that Apple isn’t entitled to lost profits for a certain phone found to infringe, it is required to determine a “reasonable royalty.” Samsung argues that Apple is only entitled to this type of damage. Even there, the sides are way apart on what would constitute a reasonable royalty with Apple seeking hundreds of millions of dollars in such damages. Samsung, meanwhile, says roughly $38 million would be reasonable compensation even if all of Apple’s patents are found to be valid and infringed.
10:30 am: McElhinny argues that Samsung’s conduct and internal documents bely its contention that Apple’s features are minor and not worthy of a substantial royalty.
He also reiterates that Samsung sold 37 million allegedly infringing phones, or enough for each resident of San Jose to have 37 phones.
And with that we get our first pause, a 15-minute morning break.
10:47 am: And we are back, with McElhinny still talking damages. He’s going through the standard test for what constitutes a reasonable royalty and offers the jury a handy chart of what the jury verdict form would look like if they filled it out exactly how Apple’s damages expert believes it should be. (How thoughtful!)
There are also charts from Apple’s damages expert with lower damages amounts based on different possible conclusions the jury might reach, even if it doesn’t fully take Apple’s stance.
10:54 am: McElhinny is nearing the end of his part. “Bringing this lawsuit was Apple’s last choice, it’s last option,” McElhinny said. “Apple cannot simply walk away from its inventions …. We are counting on you for justice.”
With that, Apple concludes, though it will be back later to answer Samsung’s counterclaim.
10:58 am: Samsung’s Bill Price kicks off Samsung’s closing though he notes that he will share the argument with three other colleagues.
Price notes that Apple has thrown around words like copying and stealing to inflame the jury’s passions.
“They have to get you a little angry to justify this number,” Price said.
Price also argues that Apple’s iPhone itself doesn’t use the exact patented claims at issue in the case. He showed a chart showing that three of the five accused patent claims were never in the iPhone and one is no longer in the iPhone.
“You can’t copy if it’s not there,” Price said.
11:02 am: Price contends that Apple is misinterpreting Samsung’s documents to paint a false portrait.
In one document that Apple cites as evidence of copying, the words attributed to Samsung are actually the company saying what they were hearing from carriers. However, extending that quote shows Samsung saying that blindly following the carriers’ advice is a recipe for going out of business.
11:07 am: Samsung isn’t alone in using Android, Price notes, adding that most hardware makers have done so.
“The Android platform is the world’s alternative to iOS,” Price said.
Every patent that Apple is accusing of infringing is part of the core Google experience, Price says, noting that the Galaxy Nexus, whose software was developed entirely by Google, is accused of violating all five patents at issue in the case.
11:20 am: I’m starting a separate story on Samsung’s closing. You can follow along here.
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