Hey everybody, I’m in San Jose today covering the third trial in Apple v. Samsung to determine how much Samsung owes Apple for infringing 5 design and utility patents for its smartphones. Jury selection is in progress. Stay tuned!
The court is taking a 10-minute break after excusing a handful of jurors who own Apple shares. INTMT Apple’s stock inches ever closer to hitting the $1 trillion market cap.
Judge Koh also is keeping a juror – for now – who says she and her husband fight a lot about which smartphone is better. She has an iPhone, her husband has a Samsung phone.
Judge Koh asked the jurors to stay late today so they can finish jury selection. Opening arguments will happen sometime tomorrow.
Price asked potential jurors if they have a “gut feeling” that $24 million sounds too low for what Samsung should have to pay for infringing Apple’s patents. After one juror responded that it seemed low, Judge Koh told Price the question was inappropriate for voir dire.
The panel of eight jurors have been selected. The jurors include a school bus driver, a Barnes and Nobel manager and a bookkeeper. The former Apple worker didn’t make the cut, nor did the guy who said he has “no great love for Apple.”
Morning! Here’s my recap on jury selection in Apple v. Samsung Part III. Opening arguments start in about an hour.
There’s standing room only in Judge Koh’s courtroom. A lot of folks showed up to watch opening arguments.
Judge Koh has wrapped up jury instructions. Each side is getting 45 minutes for opening arguments. First up is William F. Lee of WilmerHale for Apple.
Lee says after the iPhone was released in 2007, Samsung lost half its smartphone market share and redesigned its phones to mimic the iPhone’s design.
John B. Quinn of Quinn Emanuel Urquhart & Sullivan LLP is about to deliver opening arguments for Samsung.
And I just caught a guy recording the jury walk in the courtroom with his cellphone. Not cool.
Quinn holds up three pieces of an iPhone and tells the jury Samsung’s infringement is limited to those components. “Apple is certainly not entitled to profits on the whole phone as Apple would like you to believe,” he says.
Judge Koh allowed Quinn to mention certain previous verdicts, but she warned both parties she doesn’t want to have to pause openings again to take up objections. “We can work this out now, so this is the only interruption,” she says.
Judge Koh tells the attorneys she limited the number of slides they can use because in the first Apple v. Samsung trial, Samsung submitted 500 slides and Apple objected to them all. It created an incredible burden on the parties and the court, litigating 500 slides, she said.
Joswiak, who’s been with Apple for over 30 years, testified that Apple spent over a billion developing the iPhone, taking on risks by entering the cellphone market. “We really were betting the company,” he said.
Joswiak said Apple would never sell is patented iPhone design components separately, just before trial recessed for an hour lunch. They’ll be back at 1:05.
On cross, Samsung’s attorney showed Joswiak a Samsung phone with a slider case and asked if Steve Jobs would “roll over in his grave” if Apple designed that phone.
“I don’t want to testify what Steve would do, since he has passed away,” Joswiak replied. “It would be rude.”
Apple’s VP of Industrial Design Richard Howarth took the stand. He said his team made 100s of models in 4 years to produce the iPhone. When Samsung came out w/ its phone, “it felt like it was an obvious rip off to all of us,” he said. “It was just blatant.”
The jurors left the room for a quick break. A dispute between the attorneys came up over Samsung referencing patents that Apple wanted excluded from trial. Judge Koh seems irked.
Judge Koh said Samsung submitted briefs with a “huge” list of patents, that she wants narrowed. “I don’t want any sandbagging – I don’t want any hide the ball,” she tells counsel.
I’m taking a Twitter break to write, but I’ll be back at it tomorrow. Stay tuned – closings are expected for Friday, so this trial is super short.
Here’s my recap of opening arguments in Apple v. Samsung part III:
And we’re back! Day 3 of the 5 day Apple v. Samsung trial is about to kick off. The courtroom is still pretty full. We’re waiting on the jury.
The juror says her husband turned on the TV this morning and heard on the news something about the Apple v. Samsung “billion-dollar case.” Her husband asked her if she was a juror in the case, but she says she turned around and walked out of the room.
Apple’s case in chief has resumed with Apple’s expert Alan Ball testifying on how Apple’s black front-face design patent covers Samsung’s entire phones. “I think it’s very difficult to use the phone without seeing the screen,” he says.
Ball says the physical relationship between the parts of Samsung’s phones that practices Apple’s patented designs “aren’t really separable in a meaningful way.”
Ball says you can buy just about anything on the Internet, but that isn’t convincing evidence that Apple’s design patents are limited to certain components of Apple’s iPhones.
Ball says Apple’s design patent covers the entire smartphone. He explained anything that gets put together can be taken apart, but you have to look at whether the product was intended to be taken apart.
Samsung’s attorney Bill Price of Quinn Emanuel is now cross-examining Ball. He tells Ball he can’t legally start off by assuming the entire product is the article of manufacture. Ball says he doesn’t understand the question.
Price is pushing Ball on whether one of Apple’s design patents covers the entire smartphone. Here’s a picture of the patent at issue (taken from the complaint). The patent covers the shaded area of the phone on the left. Ball says it does, based on a 4-factor test.
Kare says there is “no question” that Samsung’s smartphones use graphical interface described in Apple’s D’305 design patent. Here’s a picture of the patent she’s talking about next to Samsung’s smartphone interface.
Back from lunch and Samsung’s counsel is examining Kare on Apple’s patent that describes its smartphone graphic user interface. He asks her if she thinks Apple owns the concept of having a colorful array of icons on a grid. She says she can only speak to what’s in Apple’s patent.
The parties finished examining Kare for now. Apple has called U. of Toronto’s computer science professor Ravin Balakrishnan to testify on user interfaces.
Balakrishnan testified on Apple’s utility patent covering a “bounce back” scroll feature, which he says Samsung’s phones use. Another U. of Toronto computer science professor Karan Singh is now on the stand, testifying in the other utility patent covering a tap and zoom feature.
CPA Julie Davis is now taking the stand to testify on how she reached the billion-dollar damages number, which she says Samsung owes Apple for patent infringement.
Davis says Samsung made $6.3 billion in total revenue from selling 15.3 million smartphones that infringe all 5 of Apple’s design and utility patents. Of that, Samsung made $3.3 billion in revenues from phones that only infringe its 3 design patents.
Davis says Samsung’s accounting spreadsheet with data on Samsung’s smartphones revenues changed by $1.3 billion after Samsung employees were deposed. “That was concerning to me,” she said. “If this information was coming directly out of Samsung one would think the numbers would be the same. but they weren’t,” Davis says.
Davis says Samsung should have to pay a reasonable royalty rate of $2.02 per smartphone for infringing one of Apple’s utility patents, for a total of $5.325 million. The other utility patent-in-suit is covered by the total profit remedy, she says.
Jury’s taking another quick break. Samsung’s counsel tells Judge Koh they plan to make an oral motion for judgment as a matter of law after Apple rests its case in chief, which should happen sometime tomorrow morning.
Here’s my recap from the third day of the Apple v. Samsung trial yesterday:
The parties are done with Blackard for now. Samsung calls its next witness, Jin Soo Kim, who is testifying through an interpreter. Kim is one of Samsung’s principal industrial designers, who works on the exterior design of smartphones.
The jury took a quick break, but during it Apple’s counsel William Lee asked Judge Koh if they could bring up a jury finding of Samsung’s willful infringement during cross examination of Samsung’s witnesses.
The parties finished examining Soo Kim. Samsung calls Dongwook Kim to the stand, a principal professional at Samsung who handles procurement activities related to product displays. He’s also testifying through an interpreter.
Samsung’s VP of Supplies and Logistics, Tim Sheppard, has taken the stand. He’s testifying on Samsung’s profits and losses between 2010 and 2011.
Judge Koh called an hour-long lunch break. Jury left the courtroom, and the judge is asking Samsung’s counsel why they changed the witness list at 11:30 today while they were in trial.
Judge Koh appears irked Samsung dropped witnesses in the middle of the Apple v. Samsung trial. “We can play these games if you think it is necessary for your case, which I guess you think you do,” but its “unfortunate,” she tells Samsung’s counsel.
Lucente says the typical smartphone is not “monolithic” and it exercises 200,000 patents. I’ve heard this statistic before – I’d love to know where it comes from.
The parties finished examining Lucente. Samsung’s last witness, its damages expert Michael Wagner, is on the stand. He says he’s billed Samsung more than 8,000 hours since he started working on the case in 2011.
Wagner says Apple’s expert miscalculated Samsung’s smartphone profits by excluding operation costs, like marketing, research and development. She said it’s around $1 billion, but Wagner says it’s actually about $370 million.
Also, Samsung’s counsel plans to argue a motion for judgment as a matter of law this morning, without the jury present. That’ll take some time. They seem to be making the motion primarily to preserve the argument for appeal – very unlikely Judge Koh would grant it at this point.
Samsung finished direct. Apple’s counsel William Lee of WilmerHale is cross-examining Wagner on his testimony.
Lee is pushing Wagner on his testimony. So far, he’s gotten Wagner to admit that the prior jury found Samsung’s smartphones, not the bezels and glass screens. infringed Apple’s patents.
Journo: I ate lunch for dinner last night.
Me: I ate half a pizza.
There’s another jury note in Apple v. Samsung. Everyone’s heading into the courtroom.
And here’s the note from the Apple v. Samsung jury.
Well, my train to San Jose was cancelled this morning (of all days!) so I will be an hour late to Apple v. Samsung. But the judge required both sides to appear at 9 a.m. – today should be lively!
After a light sprint, I finally made it to the courthouse. I’m outside Judge Koh’s courtroom now. Judge Koh sealed it and is talking to counsel for both sides. Stay tuned!
Counsel for both sides just filed out of Judge Koh’s courtroom. Neither side is commenting. The jury is back to deliberating, and no one knows what all of the hubbub was about.
Apple’s counsel is back. Now we’re just waiting on Samsung’s team. Wondering if we’ve got a verdict or a mistrial on our hands.
John Quinn for Samung just walked into the courtroom. He’s sitting alone at Samsung’s table, waiting on the rest of his team.
And the rest of Samsung’s team is filing into the courtroom. Judge Koh should be coming in soon.
Judge Koh is back. She says she doesn’t know if the jury has a verdict, all they did was say they are ready to come back to the courtroom. They might have a verdict, but she said she wants to be sure there are no errors. She’s calling them into the courtroom.
The jury’s back and they have a unanimous verdict.
The foreperson is the Barnes and Noble store manager, btw. She’s handing the verdict form over.
Samsung owes $533,316,606 for infringing Apple’s three design patents, jury finds.
Samsung owes Apple $5,325,050 for infringing the two utility patents.
Judge Koh asked counsel for both sides to double check the jury’s calculations, which both teams are doing now.
Apple finished checking the numbers, but Samsung is still number crunching.
Here’s the full story.
The parties finished checking the jury’s calculations. Judge Koh is back.
Apple’s Joe Mueller of WilmerHale says there is “tiny and inconsequential issue” in the numbers, which he says are a dollar or two off.
Samsung’s John Quinn of Quinn Emanuel says “we’ll give them the dollar,” but has no issues at the moment with excusing the jury.
Judge Koh said she wants to know what Samsung’s issue with the verdict is, and she says she’s open to sending additional instructions back to the jury to reconsider their verdict. We have a jury that we think can correct any inconsistency, she says.
Samsung’s John Quinn says they don’t think the verdict is supported by the evidence on what is the article of manufacture is. But he says they’re comfortable addressing it in post-trial motions.
He’s not waiving inconsistency arguments, Quinn says. Judge Koh says if there is any curative instruction that needs to happen she wants to do it now.
Quinn repeats that he thinks the jury should be excused and they’re comfortable pursuing their challenges to the verdict in post-trial motions. Judge Koh says ok, and brings the jury back in to discharge them.
Judge Koh discharged the jury, and she’s now setting post-trial hearing dates. Reminding us all that the fun doesn’t stop here! Samsung is likely going to appeal basically all of it.
Apple’s counsel says they need to talk with the client about whether they will file post-trial motions. If they do it will likely be in regards to supplemental damages – unsure how much Apple would be seeking.
“I’m not going to do a calculation of damages until I know this is a verdict that is going to be affirmed and going to be valid,” Judge Koh says.
Judge Koh asks the parties again if they would be open to alternative dispute resolution – ie. settlement talk. Both parties said they are open to it. Woooow.
Judge Koh said if they want the settlement talks to be confidential, that’s fine, but she wants it to happen within 30 days and she wants updates.
Judge Koh also unsealed the transcript from this morning’s sealed session. One of us reporters is gonna have to go digging through transcript records to find out what the heck caused all the hubbub this morning.
And that’s a wrap! Court is adjourned.
A sole juror is rehashing the rationale behind their decision. She says they determined that one patent design was the whole phone because you need the phone to see it and another patent covered parts of it including the internal circuitry.
Juror says the 4-factor test was challenging because you have to look at the patent and there were various words in the patent that had many meanings.
The juror is a 26 year old technical writer who collaborates closely with designers, engineers and she says design dictates “so much,” even in writing.
Juror is telling samsung’s counsel John Quinn of Quinn Emanuel next time to have translators reiterate the questions after their answer, because it was confusing.
Juror says they spent most of their time arguing over the d’677 patent.
For the 305 patent they found the Aom was the entire phone and the d677 patent covered parts. She says she was the sole juror disagreeing with the others today and yesterday.
Juror says Apple was kind of like the good cop and Samsung was kind of like the bad cop.
Juror says she didn’t think about the financials or about punishing Samsung and they all agreed pretty quickly that the d’305 covered the whole phone bc can’t see the design without the phone.
Juror says the 4th factor was one she was “really stumped on.”
Another juror, the Barnes and noble manager, is chatting outside about their reasoning.
And she finished chatting. That’s all folks!