SAN JOSE — For the past three weeks, a federal jury has been given competing portraits of Apple and Samsung, two of the largest, most powerful technology companies in the world — one is a hero, the other a villain.
When they begin deliberating the fate of the smartphone and tablet war between the two rivals later this week, the jury will simply have to decide whether Apple or Samsung should be branded the villain. And the nine-member jury’s verdict, which some observers say may favor Apple, could carry a multibillion-dollar penalty and send shock waves through the raging smartphone and tablet market.
Apple and Samsung finished up their cases last week, and are set to present closing arguments to the jury on Tuesday. The jury must then sort through one of the most difficult types of cases in the federal court system, addressing an extensive muddle of patent, antitrust and “trade dress” legal claims raised by both companies.
For Apple, the trial has been a chance to accuse Samsung of “ripping off” the designs of the popular iPhone and iPad, as one Apple executive put it to the jury. From the array of colorful icons on Apple products to the simple, rounded corners on an iPhone, Apple has depicted Samsung as a pirate in the way it replicated the technology, particularly Samsung’s line of Galaxy products that has put a considerable dent in Apple’s market share.
Apple wants Samsung to pay between $2.5 billion and $2.75 billion for patent infringement and tarnishing the Apple brand through its smartphones and tablets, dubbed “accused” products in the trial.
Counter-arguments
For Samsung, the trial was an opportunity to argue that its smartphones and tablets are original and that Apple’s iPhone and iPad were merely part of an industry-wide evolution, not the glitzy new innovations the Cupertino giant has billed them to be.
The South Korean company has suggested Apple’s legal claims are a bid to squelch competition. Samsung has also accused Apple of infringing its technology patents, and has told the jury it is owed hundreds of millions of dollars in royalties, raising the possibility the jury could find both companies trampled on each others’ patent rights.
Legal experts say Apple’s simpler arguments, coupled with the mystique of its products, may give it an advantage, but much depends upon the amount of credibility the jury assigns to Samsung’s counter-arguments.
Mark Lemley, a Stanford University law professor, observed that “Apple’s case is easier to understand — it’s less technical and has a good-guy, bad-guy story.”
Julie Blackman, a trial strategy consultant and patent expert, agreed.
“Apple has a considerable advantage because of the high-profile nature of the iPads and iPhones and the ‘proof’ of their innovativeness that follows from their popularity,” she said. “I’d be surprised if they (the jury) choose not to support the value of Apple’s work.”
Apple rolled out some of its top designers and executives to regale the jury with the intricate inner workings of developing the iPhone back in 2007 and, later, the iPad. The testimony provided a unique glimpse into Apple, where designers toiled on the top-secret “Project Purple,” the iPhone project, inside a cloistered “Purple dorm.”
The testimony was designed to underscore how much Apple invested in developing the iPhone and iPad. In perhaps Apple’s most revealing evidence, the jury also has been handed internal Samsung documents showing executives fretted about the iPhone’s designs, discussed ways to duplicate it and acknowledged concerns about their products looking too much like Apple’s.
In addition, there is evidence Google warned Samsung its smartphones and tablets looked too similar. Many industry watchers say Apple’s legal assault on Samsung is a “proxy” war against Google and its Android operating system.
Powerful combatants
But Samsung’s witnesses have suggested Apple’s iPhone and iPad features existed in other technology long before they came to market, a concept known in patent cases as a “prior art” argument. They also have told the jury that some of Apple’s features are so “functional” and basic, such as icon designs, that Apple has no legal rights to them.
When pressing one former Apple designer on icon shapes, a Samsung lawyer scoffed: “You’re not saying Apple owns exclusive right to a colorful matrix of icons?”
Both companies have slammed the jury with a parade of highly paid, well-credentialed experts to back up their competing arguments. Legal experts say the jury may consider that testimony a wash.
“Technical testimony from expert witnesses is probably the most likely to be ignored by the jury,” said Brian Love, a Santa Clara University law professor.
If the jury sides with Apple, it could result in a permanent injunction that would block Samsung from selling an array of products in the United States, although its most recent smartphones, such as the Galaxy S III, are not in play in this trial. Many experts also predict a verdict of any type may encourage Apple and Samsung to lay down their legal swords and settle.
Some observers wonder if the trial will accomplish much in terms of shaping the market, where Samsung has extended its lead in smartphone sales while Apple continues to own the tablet market.
“It is important to remember that the consumer may be the real loser here,” said Robin Feldman, a UC Hastings College of the Law professor. “Battles like these direct society’s resources away from building a better mousetrap and toward building better legal traps.”
Howard Mintz covers legal affairs. Contact him at 408-286-0236 or follow him at Twitter.com/hmintz.
