It was a presentation that would have made Steve Jobs proud. Just as Jobs knew how to stun the public and the press with a shiny new Apple product, Apple lawyer Harold McElhinny was smooth and direct in his presentation. Using big bold slides, and a bit of video to show off the best features, he laid out a simple version of smartphone history that put his client at the center: Apple came first. Imitators like Samsung followed. And now it's time for them to pay up.
How did Samsung move from the phones it was making in 2006 to the sleek, large-screen smartphones it was selling in 2010, asked McElhinny? "To answer that question, we have to go back to January 9, 2007," he told the jury. "That's when Steve Jobs introduced the iPhone at the Macworld conference."
McElhinny's monologue, a bit over an hour, was like a sleek Apple marketing pitch, with legal language seamlessly mixed in. The speech was the first building block of Apple's giant patent case against Samsung. The iconic Cupertino company wants more than $2.5 billion in damages from its Korean competitor, as well as injunctions that would kick Samsung's products off the market.
At times McElhinny waxed rhapsodic about his client, its innovative culture, and the products it created.
"At the same time Mr. Jobs introduced the iPhone, he warned his competitors that he had filed for patent protection on more than 200 new inventions in the phone," he said. "Over 200 new inventions—let's think about what that means. It's about creating... a user experience so unique and intuitive that it just feels right."
Apple is a company that "always has its eye on the future," McElhinny continued: "What the world needed, and it didn't have, was a phone that had the capabilities of a computer. Apple designed an entirely new product—a phone, a Web browser, and a music player. It was a phone design that the world had never seen. Physical keyboards would become a thing of the past. It required an entirely new hardware system. It required an entirely new user interface. That interface had to become completely intuitive."
Critics had hailed the iPhone, too, McElhinny said. Slides flashed by—The New York Times and Wired lavishing praise on the iPhone, Time calling it the 2007 Invention of the Year.
"What struck me about the iPhone was—there's no manual," said McElhinny. "You had to walk into the store, pick it up, and get drawn in to use the device. If that didn't happen immediately—you'd never buy it."
Then McElhinny inveighed against Samsung, the accused copier.
"Apple's competitors immediately recognized the impact of the new device," said McElhinny. "Samsung was faced with a choice: it could come up with its own designs, and beat Apple fairly in the marketplace. Or it could copy Apple."
And copy Apple it did, he said, producing sleek black-faced phones with big screens and using the same user-interface features that Apple had patented, like a "bounce back" feature for scrolling and a method of navigating screens with a quick double tap.
"At the highest corporate levels, Samsung decided to copy every element of the iPhone," said McElhinny.
The press had noticed, too. "Samsung Vibrant rips off iPhone 3G design," read one headline that was shown to the jury.
Next up in the Apple-approved history: the iPad. "Can you believe the iPad has only been around for two years?" said a briefly awed McElhinny, going on to call it "magical" and "revolutionary," echoing the bubbly headlines of 2010 and Apple's own marketing.
Quick videos demonstrated the features of each of Apple's three utility patents in the case. One was over the "rubber band" feature, where documents or images snap back into place when a finger pushes them off a touchscreen; another covered the idea of allowing a double-tap to navigate a screen without zooming out. The company alleges those features popped up in Samsung phones shortly after being patented by Apple.
The jury should reject any suggestion that the user-interface features Apple designers cooked up are unimportant, warned McElhinny. The patented features were important so that customers could "intuitively" use the devices. "My four-year-old granddaughter taught herself to use an iPad," he said. "If these were trivial, why did they show up in your [Samsung's] customer surveys, and why did you copy them?"
McElhinny ended with a promise that the jury will see the story in Samsung's own documents. Those documents—acquired during painstaking discovery and translated into English—show more than 100 instances where Samsung altered its phones and tablets to achieve the goal of making them "identical to Apple products," he said.
The attorney accused Samsung of profiting enormously from its strategy. Samsung has made more than 22 million infringing phones, which have earned more than $2 billion in profit, according to Apple's calculations.
Samsung's defense: it's competition, not infringement
"Rectangular screens, round corners, and minimalist design?" said Samsung's lawyer, Charles Verhoeven. "Apple didn't invent that."
Within a few minutes of his opening, Verhoeven was wheeling through slides of patent designs from Japan and Korea that reached back to 2006, 2005, even back to 2004—years before the iPhone was launched.
"This is the Korean '547 patent," said Verhoeven. "Again, you've got a large rectangular screen."
Apple's products may be successful, Verhoeven noted, but that doesn't mean the company was first to create these innovations—they're not true inventions. "There's a distinction between commercial success and inventing something."
Same story with the iPad. Verhoeven showed computer tablets with similar forms stretching back to a 1994 tablet called the "Fiddler."
"They didn't invent a large touchscreen with rounded corners," said Verhoeven. That had been made before—it's just that it had taken years for the market to demand such large screens.
"We're not saying it wasn't a great product," said Verhoeven. "It was inspiring to everyone, including the competition."
Cell phones evolved. "As functionality increased, the entire industry moved towards screens that are much, much larger," he said. "Nobody's going to want to watch a movie on a tiny little screen."
"Is that infringement?" he continued. "No, the evidence is going to show, that's competition. It's providing the consumer what the consumer wants. If the consumer wants a phone with a large screen and touch face, Samsung provides that. It's not some Johnny-come-lately developing knockoffs. It's creating technology that is what people want."
Samsung makes all kinds of phones, Verhoeven said. Phones that slide, "folder-type" flip phones, and "bar type" phones with big screens that look more similar to Apple's products.
"Unlike Apple, that basically makes just one kind of phone, Samsung makes all kinds of phones for all kinds of people."
Verhoeven also touted his client's history of innovation—a pioneer in the mobile business since 1991, Samsung employs more than 20,000 engineers and has invested $35 billion in research and development just from 2005 to 2010, he said. The company is no "copyist," Verhoeven said. "Samsung is a major technology company, doing its own innovation."
The presentation was a sometimes choppy follow-up to McElhinny's smooth attack a few minutes before. Verhoeven read many slides directly and seemed to repeat his themes; a video had volume that jumped up and down wildly, and even stopped playing at one point.
A stressful first day with a smaller jury
It wasn't just Samsung's strained presentation; the day had a stressful feeling from the start. The hallway was packed with dozens of reporters, lawyers, and observers, who filed into the court minutes before arguments began.
Stress was the first thing the judge wanted to talk about, in fact. One of the jurors was feeling stressed, to the point of having panic attacks, said US District Judge Lucy Koh. The situation with the juror's pay wasn't made clear by her boss, and she wanted off the jury. Koh checked that the parties had no objections and then let her go, turning the ten-person jury into a panel of nine.
Before opening arguments even started, stress turned into sparks, as a Samsung lawyer beseeched Koh to kick out one of Apple's slides.
"Your Honor, I've been practicing 36 years, and I've never begged the court," said John Quinn, name partner at Quinn Emanuel, Samsung's law firm. "I'm begging the court now to hear this issue—"
"I've reviewed what you filed yesterday," said Koh, testily. "I heard argument on this yesterday. Mr. Quinn, please, we've had three reconsiderations on this."
"Can I ask the court for some explanation?" said Quinn.
"Mr. Quinn, don't make me sanction you, please. You've had two, if not three, if not four opportunities to brief this."
"Can I change the subject?" asked Quinn.
"No," said Koh. "I want you to sit down. Please."
Openings began shortly after that and went past the lunch break. They were followed by the first witness, Apple designer Christopher Stringer, listed as an inventor on many of Apple's patents. Stringer, a lanky middle-aged man with shoulder-length gray hair and a goatee, didn't take the stand until almost 3:00. The iPhone was an "icon," he said simply, "the most beautiful of our designs."
He was even-keeled, but the designer didn't mince words. "We've been ripped off, it's plain to see," he said. "By Samsung in particular."
After Stringer stepped down, Apple VP Philip Schiller took the stand for just a few minutes. The trial now takes a break until Friday, when Schiller will re-take the stand.
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