Apple wins “adverse inference jury instruction” in U.S. patent case against Samsung
In case you’re not aware of it, Apple and Samsung are embroiled in a complex legal patent-based battle that spans across four continents, in 10 markets. Of the over 50 cases between the two giants, two are of utmost importance right now, an Australian trial that has already started and – even more important for the mobile business – the U.S. trial that’s scheduled to begin on July 30.
So far it’s Apple that has won the most favorable verdicts in its conflict with the Android device maker, including two recent injunctions obtained in the U.S. against Galaxy-branded devices such as the Galaxy Tab 10.1 tablet and the Galaxy Nexus smartphone.
Furthermore, Apple is already asking for $2.525 billion in damages and royalties from Samsung, while it’s ready to pay half a cent for each of its own iOS devices that infringe on Samsung FRAND (standard essential) patents.
With all that in mind, we’re moving forward in the American Apple vs Samusng fight with a new favorable verdict for the iPhone maker.
The Verdict – adverse inference jury instruction
Magistrate Judge Paul S. Grewal instructed jurors of the Apple vs Samsung case to consider that Samsung has basically destroyed evidence that could have been relevant to Apple’s case in the trial. Foss Patents shows the order that will apparently be sent to jurors by Judge Lucy Koh, who is presiding the Apple vs Samsung case:
“Samsung has failed to prevent the destruction of relevant evidence for Apple’s use in this litigation. This is known as the ‘spoliation of evidence.’
I instruct you, as a matter of law, that Samsung failed to preserve evidence after its duty to preserve arose. This failure resulted from its failure to perform its discovery obligations.
You also may presume that Apple has met its burden of proving the following two elements by a preponderance of the evidence: first, that relevant evidence was destroyed after the duty to preserve arose. Evidence is relevant if it would have clarified a fact at issue in the trial and otherwise would naturally have been introduced into evidence; and second, the lost evidence was favorable to Apple.
Whether this finding is important to you in reaching a verdict in this case is for you to decide. You may choose to find it determinative, somewhat determinative, or not at all determinative in reaching your verdict.”
What did Samsung fail to provide Apple? An email exchange between Samsung execs that was automatically deleted by the company’s emailing system. The system deletes emails that are not saved by its employees after two weeks, a measure that’s meant to prevent any unwanted leaks.
The Wall Street Journal reports that the judge found that this wasn’t Samsung’s first wrongdoing. In 2004, in a case tried in New Jersey, Samsung was also unable to provide emails that were automatically destroyed. Therefore the judge believes Samsung has destroyed evidence in this Apple case, as, at the time of the email exchange, Apple was already pursuing legal actions against the Android device maker, which means Samsung should have saved all those emails for future evidence.
On the other hand, Samsung argues that the ITC already ruled on the same alleged wrongdoing and found that “Samsung had not acted wrongly in regards to the destruction of documents in its case with Apple there”.
Even more interestingly for the Apple vs Samsung story is the fact that these email exchanges concern a specific product targeted by Apple, the Galaxy Tab 10.1:
“Joon-Il Choi, a senior manager in Samsung’s R&D Management Group, did not produce any emails. Mr. Choi, however, presided over and wrote notes for a meeting that Gee-Sung Choi, Samsung’s former President and CEO of its digital media division and current Vice Chairman of Corporate Strategy, attended on March 5, 2011, to discuss alterations to the Galaxy Tab 10.1 to make it more competitive with the newly released thinner iPad 2.”
The Evidence: Galaxy Tab 10.1 and Galaxy Tab 10.1v
Neither Foss Patents not The Journal mention the two initial Galaxy Tab 10.1 versions, but since the Galaxy Tab 10.1 is a device that Apple has been targeted in various countries – obtaining several injunctions, even if temporary, in Germany, Australia or the U.S. – we’ll tale a look at what the quote above may mean. We’re specifically referring to the part that mentions the “alterations to the Galaxy Tab 10.1” that Samsung made after initially unveiling it.
Galaxy Tab 10.1v
The Galaxy Tab 10.1v sounds like a secondary Galaxy Tab 10.1 version, but the fact is that this version was the official tablet the company unveiled at the Mobile World Congress in Spain in February 2011. The device was announced a few weeks after Motorola unveiled the Xoom at CES 2011, and it was seen as another iPad 2 potential competitor – at that time, the iPad 2 was not yet public, but various rumors mentioning its specs were featured by various tech-oriented publications.
The Galaxy Tab 10.1 was expected to launch in the months following its announcement, but it ended up being rebranded as Galaxy Tab 10.1v and sold by Vodafone only in certain markets of the world.
The Galaxy Tab 10.1v is a version of the Galaxy Tab 10.1 tablet and it had essentially the same specs and features as the device that we’ve grown to know as the Galaxy Tab 10.1. But it also had a few different specs including a 8-megapixel rear-facing camera and a 6860 battery. The device also sported a different design, more alongside the lines of the original iPad, which means it had a somewhat curvier back rather than a flat one, and a profile of 10.9mm.
Also worth noting is that the tablet was supposed to be released with a vanilla Android version on board rather than a TouchWized UI interface on top of Android.
Enters iPad 2
When Apple launched the new iPad 2 in March 2011, some tablet enthusiasts were annoyed to see that while the company equipped the device with both a front-facing and a rear camera, the shooters were not on par with what rumors said they would offer: 960 x 720 back camera with HD video recording and VGA front-facing camera with VGA video recording.
At the same time, the devices sported a new slim design (8.8mm), and a flat back compared to its predecessor, which had a curvy back.
Galaxy Tab 10.1
Samsung then surprised the crowds at CTIA 2012 with a new Galaxy Tab 10.1 version, which sported a design more similar to the iPad 2 than the model shown to the world at MWC 2011 – see image above. The former Galaxy Tab 10.1 got the “v” particle after the name and the new Galaxy Tab 10.1 model became the tablet that would ship in various markets across the world.
We will not forget that Samsung execs, namely Lee Don-Joo, the company’s CEO, said after Apple announced its new tablet that the iPad 2’s price and thickness will pose challenges to Samsung, and the company would have to “improve the parts that are inadequate.”
In addition to the slimmer profile (8.6mm), which also reduced the weight of the device, the new Galaxy Tab 10.1 model came with a 3.1-megapixel rear shooter, while keeping in place the 2.0-megapixel front-facing camera found on the first model, and with a bigger 7,000mAh battery. The device would also ship with TouchWiz UI on top of Android OS.
The new tablet was supposed to hit stores in summer 2011, rather than in March/April as initially expected.
The Missing Emails?
Should jurors assume that the emails Apple wanted to use in court detail the changes the Galaxy Tab 10.1v went through to become the Galaxy Tab 10.1 which is still selling in stores today? We’ll have to wait for the actual trial to begin to know more, but we’re definitely going to keep you updated on the matter.