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Apple wants to prevent real competition with such lawsuits, Samsung says in closing argument

August 21, 2012

Once Apple made its last stand in front of the jury earlier today, it was time for Samsung’s lawyers to step up to the plate and deliver their closing arguments, and it was Charles Verhoeven the attorney chosen for the task at hand.

And if you liked what you saw in Apple’s closing arguments then you’ll find Samsung’s grand finale a bit boring, as the company tried to go after certain Apple witnesses and dismantle their testimonies in order to make its case one more time, that it didn’t copy Apple, rather than focusing more on its own allegations that it’s Apple that infringed Samsung patents.

Competition in the market place

One of Samsung’s arguments was that Apple is trying to beat a serious competitor in court rather than in the market place, and that competition is something essential for America, an element that shouldn’t be changed by the jury. Here are some quotes:

  • Apple is seeking a competitive edge through the courtroom, he says.
  • “It’s attempting to block its most serious competitor from even playing the game.”
  • The jury’s decision “can change the way competition works in this country.”
  • “Think about Silicon Valley, the way it used to be, back in the day… now there’s tens of thousands of tech jobs.” That’s because of free competition. “Consumers deserve a choice.”
  • “Competition is what’s built this country.”
  • “We’re a good corporate citizen. We just want to build products consumers want.”
  • “All this copying nonsense is hand-waving from Apple.”
  • “They know just like I know, just like you know, that no one is going to be confused when buying a smartphone” with a carrier contract.

“Form followed function”

Samsung argued, yet again, that Apple doesn’t own certain designs that are used by a variety of players in the mobile business, such as “black rectangles with touchscreens.” Back in the BlackBerry glory days, every OEM out there tried to put a QWERTY keyboard on its handsets, and, similarly, now everyone is using touchscreen-based devices.

And one of Samsung’s point is that “form followed function” in the phone business:

  • Verhoeven is showing an array of devices that have been on the market the past few years. “This is what you see when you go into the Best Buy store.” All touchscreen devices.
  • Apple thinks it’s “entitled to have a monopoly on a rounded rectangle with a touchscreen.”

Recognizable design and prior art

Another point Samsung’s counsel stressed on was the fact that ultimately, customers can’t confuse a smartphone or tablet made by Samsung with an iPhone or iPad, respectively. The company argued that no Apple expert was able to prove that customers were mislead into believing they were purchasing iPhones and/or iPads when choosing a Galaxy-branded device and that consumers have already made their choice not to buy an iPhone or iPad when picking up an Android device from Samsung.

Samsung showed to the jury the variety of touchscreen-based devices it worked on prior to the iPhone, although it didn’t explain why Samsung’s touchscreen handsets only became popular after the iPhone was launched, and not before.

Verhoeven then pushed through various testimonies from Apple experts on consumer choices or design, showing various Galaxy-branded devices that are allegedly infringing on iPhone patents, but which, in his view, are not in fact violating those patents. Here are some quotes:

  • “The Galaxy S 4G, as you can plainly see does not have a bezel of uniform thickness,” unlike the iPhone. “It’s a totally different design style.”
  • “Not only did he [Bressler], [Apple witness], not conduct any research or surveys or speak to anybody about whether they were deceived,” Verhoeven says, but he didn’t even test the four buttons on the front of the Infuse 4G.
  • Verhoeven cites the lozenge-shaped speaker as a difference between the iPhone and the accused devices. “Galaxy S 4G. It’s not centered… If you pull it out, you can see it’s a completely different shape. Look at the Infuse, the same thing.”
  • “Every single design element that Mr. Stringer says differentiated his design from the prior art is not present in the accused products.”
  • The only way to find infringement, he says, is if Apple owns a black rectangle design. But if things are that broad, then Apple’s own patents would be usurped and considered invalid due to prior art.

Prior art was also a topic in Samsung’s closing arguments, with Verhoeven arguing that the Galaxy Tab, a product that Samsung began working on before the iPad was launched according to a Samsung designer’s testimony, is not similar to the product described in Apple’s ‘889 patent.

Icons and matrix

Samsung tried to show the jury that various Apple claims against some of its devices are unfounded, although not all Samsung devices that are part of the trial were showecased:

  • “There’s only two icons that Dr. Kare [Apple witness] says were similar [on the Fascinate]. The phone and clock… I would submit that the vast majority of the icons are substantially different. And let’s not pretend you can patent a colorful row, a colorful matrix of icons.”

Google warning and internal iPhone benchmarking

As you can easily see, Samsung spent most of its time trying to debunk Apple’s accusations rather then trying to prove that Apple is also accused of infringing certain patents. Verhoeven was apparently interested to explain Google’s design warnings, as well as the iPhone vs Galaxy S document – both arguments were brought into the trial by Apple and could hurt the Android maker in the case, especially the latter, as it offers a complex comparison between the two devices but also ways to improve the Galaxy S to be more like the iPhone. Here are some quotes:

  • He [Verhoeven]’s showing the email displayed during Kim’s [Samsung witness] testimony that showed a design for an early Tab. “This document is created internally within Samsung. The development of the Tab 10.1, before anyone knew the iPad existed… and they say he’s a copyist.”
  • “On cross-examination, this was Apple’s chance to show that this man was a copyist…”
  • As for the warnings Google made? Verhoeven holds up the Galaxy Tab 7.0. This is the product they were taking about, he says, and “it’s a product that wasn’t even in this case!”
  • As for the semiconductor group at Samsung that had an iPhone study? That was a study of the device’s impact on its component business. “They’re mixing and matching… they’re taking a document from a completely different part of the company… and saying that’s proof” that Samsung copied.
  • “It’s a completely irrelevant document…. Again, it’s a shell game. Counsel for Apple is trying to mislead you.”
  • Verhoeven says Apple “pooh-poohed” his assertion that benchmarking is something every company does, before reading from an Apple email that explains the company’s benchmarking process. “There’s nothing wrong with that when Samsung does it, and there’s nothing wrong when Apple does it.”

However, this doesn’t change the fact that the document, no matter where it came from, contained advice on how to improve the Galaxy S to be more like the iPhone, rather than being solely a “benchmarking” comparison between devices.

Samsung patents and damages

After almost two hours of defending against Apple’s accusations, Verhoeven finally remembered that Samsung owns some patents two which is using against the iPhone maker in this particular lawsuit. The lawyer reminded the jurors that Apple products used “state of the art” Samsung 3G technology in the iPhone, without Apple paying for it.

As for damages and royalties, should they be awarded to Apple, the jury is advised to take into account the discrepancies between Apple’s and Samsung’s financial findings regarding the allegedly infringing products:

  • “We don’t think we’re liable” for damages, Verhoeven says, but the company needs to argue the topic in case the jury disagrees.
  • He goes after Apple’s damages expert Terry Musika, pointing out that he was paid almost $2 million for his services.
  • He didn’t take out any internal costs from Samsung’s revenues when calculating profits, however. “He didn’t do it.”
  • “So what do we have? We have Apple’s audited statements, Samsung’s audited statements,” the reports by Musika and Samsung expert Wagner.
  • Musika did not deduct costs of sales, advertising costs, R&D costs, or allocated operating costs from his report — but all three other documents do.
  • “He was wrong to do so.”
  • Samsung’s audited financials company-wide show total profits of 10 percent. 15 percent for the telecom group. Musika came up with 35 percent for the accused devices.
  • On damages Verhoeven says “We hope you don’t get there, but if you do, you’ve got to use your common sense.”

Not the most interesting closing argument for Samsung, but the company managed to make its case once again, repeating pretty much what it said in court these past few weeks.

It’s now up to the jury to decide who will win this battle, with deliberations set to start tomorrow morning.