SAN JOSE, CALIFORNIA—It was mostly a civil day by the standards of this trial—but that might just be because both sides are so tired, and because the jury isn't around to watch. Apple and Samsung attorneys fired off their final concerns about the jury instructions and the jury verdict form to US District Judge Lucy Koh today, less than 24 hours before the case heads to a jury.
Koh made one significant change that will even the playing field in Samsung's favor. The jury was originally going to get an instruction that Samsung engaged in despoliation of evidence by pursuing an aggressive e-mail deletion policy even after a key discovery deadline had passed. Today, however, Koh said she found there was reason to issue a similar instruction against Apple, which hadn't done a good job of retaining its own e-mails—including key ones involving Steve Jobs.
"You must have known this was going to be a two-way street," Koh told Apple lawyers. "You were successful in getting that August 2010 date [at which Samsung should have been on notice to retain e-mails], now you have to live with it as well. I feel like this is a situation of Apple's own making."
After that was resolved, the two sides negotiated over the proposed jury instructions and the verdict form itself—a 22-page behemoth that asks the jury to decide whether Samsung broke the law when it sold more than 20 kinds of smartphones and two tablets. Since the jury has to decide individually whether Samsung's US operations infringed patents—as opposed to Samsung as a whole—the jury form actually requires them to make hundreds of individual decisions about infringement allegations. The jury also has to rule on Samsung's counterclaims against Apple devices to boot. (See the proposed jury form from Judge Koh here [PDF]).
At times it seemed like the lawyers were arguing with themselves; Koh spent about four hours this afternoon considering all they had to say, but took them up on very few of their suggestions. Ultimately, the judge changed very little.
In all, Apple has accused Samsung of infringing four design patents and three utility patents, as well as infringing and diluting its "trade dress," or packaging and distinctive style.
"I am seriously concerned we will get a very confused jury here," Koh said at one point to Apple lawyer Michael Jacobs. "I have trouble keeping this all in my head."
Both sides have filed hundreds of pages of documents, getting every conceivable objection on the record on legal issues they feel haven't gone their way. By the end of the day, Koh was more than fed up. The stated reason, of needing to preserve their arguments for an appeal, had been exhausted, she said.
"You filed 16 pages of objections just this morning, and you've had multiple hours of objections this afternoon," Koh said. "You've already preserved. You've got a petrified forest here! Enough is enough."
This trial is the centerpiece of a worldwide patent battle between the two sides that could determine who dominates the global smartphone market. Tomorrow, it comes to a head, as a jury of seven men and two women hears final arguments, then retires to deliberate privately. Apple is asking for $2.75 billion in damages for alleged trade dress and patent violations, while Samsung is asking for more than $400 million for infringement of its own patents.
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