After four weeks of fierce fighting in the U.S. Apple vs Samsung case, we have reached the closing arguments phase that’s taking place today in Judge Lucy Koh’s court. After that, the jury will have to decide the fate of Apple and Samsung, after deliberating on each party’s patent claims and filling in the 20-page verdict form that looks like a complex math test.
Apple started the closing arguments session, with Samsung coming up next – after that, each party will have time to counter some of the opposition’s claims as presented today.
The Verge covered live both Apple’s and Samsung’s closing arguments, and we’re going to take a look at what was said by each side in a last attempt to win the jury over.
As you expect, both closing arguments are quite interesting, and hilarious, from certain points of view, so let’s look at what Harold McElhinny, one of Apple’s attorneys, had to say about Samsung’s copying skills.
Historical documents and chronology
From the get go, McElhinny reminded the jurors that they have to pay special attention to the picture painted by historical documents and to look at the chronology of the events that lead to this trial.
Apple reminded everyone that prior to the iPhone, handset makers, Samsung included, did not have any products that could capture the consumer like the iPhone did. And after the iPhone launched in 2007, Samsung was quick to copy its look and feel, something the company then did with the iPad as well. Here are a few quotes:
- “Steve Jobs shocked the world” with the iPhone and the industry followed suit. “It was perhaps the most famous product in the world.”
- Quoting from the [Samsung] document: “Easy and intuitive UI,” and “beautiful design.”
- Why was Samsung’s semiconductor unit interested in iPhone aesthetics? he asks.
- We’re going to be seeing a lot of documents to drive Apple’s points home. Another Samsung document discussing the iPhone’s accolades. “This is a historical document. This is what Samsung was thinking in 2008. It calls the iPhone a revolution.”
- “Users said the iPhone was fun and easy to use.” With a “whimsical” bounce and “fun” two-fingered pinch gestures.
- More quotes from residents of New York. “It’s beautiful.” “It’s sexy.” “It’s slick.”
- The document notes that in 2008 Apple had overtaken Samsung as the most stylish brand in the world.
McElhinny then reminded the jury that even Google pointed out that the Galaxy S and the Galaxy Tab tablets Samsung was working on in 2010 looked too much like the iPhone and iPad and asked Samsung to consider different designs.
But Samsung did no such thing – in fact, one of its own witnesses, a top designer for the company, revealed during his testimony that he didn’t hear of those Google instructions. McElhinny argued that Samsung wasn’t even interested in changing the design and that, according to a Samsung icon designer, Samsung was able to “copy and emulate” Apple’s products in just three months because Samsung was copying “the world’s most successful product.”
No top execs, no flat-out denials
Another interesting thing pointed out by Apple’s counsel is that not only didn’t Samsung top execs come to testify in the trial – but sent out lawyers instead – but these lawyers, and the witnesses they called upon when defending against Apple’s claims never flat out denied the copy accusations. Instead Samsung tried to base its case around certain design details of its handsets and tablets, that can’t be patented, without looking at the bigger picture:
- “Samsung did not bring you a single witness that admitted to ever seeing… any of the many copying documents we showed you…. Instead, they brought you lawyers.”
- McElhinny cites Samsung designer Jin Soo Kim who said he was never told about Google’s warnings to Apple. Proof that Samsung’s executives never tried to stop copying, McElhinny says.
- “No Samsung witness ever sat in that chair and said ‘those designs are not similar.’”
- No Samsung witness testified that the iPhone icon design was obvious, he says, nor testimony about prior art.
And Apple argued that the bigger picture shows similarities between Apple and Samsung products, which have hurt Apple over the years. The lawyer quoted various examples in which buyers confused Samsung with Apple products, including Galaxy Tab returns at Best Buy (with customers believing they purchased an iPad) or a Galaxy Tab commercial that made viewers believe they were looking at an iPad ad.
Furthermore, Apple said that the evidence Samsung presented does not prove that Samsung’s design choices were functional and therefore obvious choices, in which case, Samsung argues, these choices would not infringe Apple patents.
Nokia Lumia, Sony Xperia Arc and previous art
To prove that not all touchscreen-based devices have to look like the iPhone and still be functional, Apple’s lawyer pulled out a Nokia Lumia and a Sony Xperia Arc and showed the jury the design differences.
The lawyer also referred to Samsung’s “prior art” defense, saying that the devices showed to the jury by the opposing counsel including the LG Prada, the Fidler tablet, the LaunchTile, or the Diamond Touch Table failed to “meet the legal standards to render the [Apple] patents obvious.”
- “It should be clear to you why no real designer would come to this trial to testify” that any of these designs was a primary reference. Ouch.
- “Samsung was the iPhone’s biggest fan.”
- The iPhone was a revolutionary device, and Apple argues that Samsung realized that from the beginning:
- “Have I mentioned that Samsung copied the design? I think I may have said that.”
- “Everyone, even Samsung, said the iPhone changed the world.”
- “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.”
Once they copied Apple’s devices, Samsung caused confusion among buyers and diluted Apple’s iconic designs, which were unique features of Apple’s devices. Apple’s counsel said when talking about trade dress:
- “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.”
But Samsung did not just copy the look of the iPhone and iPad, as, in the process, its Galaxy devices also had to acquire the feel of these devices, and that’s where various Apple patents come into play. These patents, even though they may describe simple, trivial smartphone features, are features that smartphone and tablet users would pay extra for, according to an Apple study.
- “No Samsung expert, no Samsung witness testified that Samsung is not using the bounce-back feature. No one came here and denied it.”
- Double-tap-to-zoom. “Again, Samsung never put up a non-infringement defense.”
- “Samsung never made a showing” when explaining why its prior art applied when putting forth its invalidity case.
22.7 million infringing devices
That’s how many smartphones and tablets Samsung sold in the U.S., priced on average at $360 per unit. Samsung made $8.16 billion in revenue, while Apple argues it lost $2 billion in sales because of Samsung’s devices.
Apple said it gave Samsung notice of infringement in August 2010, so damages should be calculated starting back then. McElhinny went on to also question Samsung’s own financial expertise regarding Samsung’s indirect cost documents, as indirect costs incurred by the company are also important when calculating such damages:
- Samsung refused to give even its own expert any information about the indirect costs, McElhinny says.
- There were nine different versions of the indirect cost documents, and “even Samsung’s expert couldn’t tie the numbers back to a reliable source.”
Calculating damages and royalties that Samsung would have to pay for its infringing products will be a tiring and gruesome chore for the jury, although Apple has provided guidance during the closing arguments, but also during the trial on how these numbers should be compiled. That’s if the jury finds Samsung owes Apple any cash for patent infringement, and we’re going to cross that bridge once we get there.
One last point, but a very important one for the jury to decide on was whether Samsung has willfully copied the iPhone. To this McElhinny had this to say:
- “Think about the copying documents, think about the meeting with Google…” and find their infringement was willful.
Before we move to Samsung’s closing arguments, we will note, yet again, how important this battle is for the future of the mobile business. And the U.S. Apple vs Samsung trial has certainly been interesting to watch, yes?