Before the trial could resume with witnesses, Judge Lucy Koh announced she was denying an Apple motion asking her to declare Apple's patents valid and Samsung guilty of infringement. Apple filed the motion Wednesday after an incident in which a Samsung attorney provided the press with a link to documents airing evidence he believed should have been shown to the jury.
The attorney, John Quinn, defended the document release, saying the full story of how the iPhone borrowed from other companies' designs needed to get out. Samsung presented the document to the court after preliminary hearings had already determined what documents would be part of the trial. Koh had denied his fourth attempt to get them admitted on Tuesday.
Quinn's move was branded by Apple as an attempt to "pollute the jury" with evidence it was not supposed to see. California, like many states, has a code of conduct that expressly forbids lawyers from making statements to the press that interfere with or prejudice proceedings. A Wall Street Journal story on Quinn's move, published Friday as the trial resumed after a two-day hiatus, quoted New York University legal ethics expert, Stephen Gillers, as calling it "a bold move, to put it kindly."
The move might result in sanctions against Quinn by the court, Gillers predicted. Most lawyers try hard to avoid sanctions, aiming to avoid being labeled as unskilled at staying within proper procedures and willing to create disruptions.
Koh, a young judge who's been on the bench for only two years, addressed the matter at the start of Friday's session. She said both sides had been dealt with the same way when it came to belated evidence. "Apple's untimely discoveries have also been barred," she said, but she was not willing to take action on Quinn at this time. "I won't let any sideshow distract this court from its core business in this case," she said. But she added that at the end of the trial, she plans to return to the subject of whether Quinn should be sanctioned. Her comment suggested she felt there was unfinished business to be dealt with.
Koh then took the unusual step on the second day of testimony of polling the jury members individually about whether they had discussed the case with anyone or received any information on it while outside the courtroom. After seven of the nine jurors said they had not, she declared her confidence that the integrity of the jury remained intact and reseated the existing members.
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Phil Schiller, the bespectacled, gray haired, senior VP of Apple's worldwide product marketing, testified that the iPhone was an important project to Apple, following on the heels of its success with the iPod. It had already started work on a tablet project, and it occurred to some Apple designers that the technology that produced a software-based keyboard on a tablet might also be used on a second-generation smartphone.
But such a phone, with numbers beneath a touch-sensitive glass face instead of on physical buttons, would not work as the public expected. Apple would need a new touch user interface and a different way of letting users move through documents, images, and applications. It would need to invest heavily in advertising to convince consumers to come into the store to try the device out.
Eliminating the number keypad freed up the device's face and enabled a much larger screen than on previous cellphones. On such a screen, users could browse the Web and interact with content, as well as dial numbers on the soft number pad.
Apple spent $97.5 million advertising the iPhone in the U.S. in 2008; $149.6 million in 2009; and $173 million in 2010. It introduced the iPad in January 2010, and spent another $139.5 million that year advertising it, according to figures submitted as evidence to the jury.
"No one had any experience using this type of device," said Schiller, in response to a question about the iPad. The advertising was necessary because it "was a challenge to show people what they might do in an ad before they would go into a store and try it themselves."
So Apple adopted an advertising theme that "the product is the hero," and made the iPhone and iPad the centerpiece of its respective ads.
Under cross-examination by Samsung attorney Bill Price, Schiller was asked to discuss the same product development, but from the Samsung point of view. "Once you put everything on a screen, you can make the screen bigger," he suggested, saying the touch technology to do so wasn't owned by Apple. Any phone company had a right to implement it as it became available. And if they did so, they would be likely to produce phones with bigger screens, which would come closer to resembling the iPhone than earlier generations.
"I don't know that that's cause and effect," said Schiller.
For the benefit of the jury, Price whipped out his own "ancient" phone, a RIM BlackBerry, and pointed out how much space was occupied by its push buttons.
Doesn't a larger screen offer functional advantages, such as being able to browse the Web, view images, or watch movies, Price asked. The purpose of the question was to suggest that putting more content on the phone was an outgrowth of technology evolution, not the brilliance of Apple designers. But it was difficult for him to get Schiller to agree enthusiastically.
"It depends on the screen resolution. There may be an advantage in that (larger size)," he said.
"You expected people to put iPhones in their pockets, didn't you?" Price queried. "If you use your common sense, you wouldn't design it with square corners. Square corners don't go in and out of pockets as easily," he said.
Schiller said it wasn't possible to reduce the iPhone's design to a desire for it to slide in and out of pockets. It was the attractiveness of the design, not a practical concern, that had prompted the rounded corners. "When Apple released the iPhone, you expected competition, didn't you? Apple didn't have exclusive rights to soft keypads and large touchscreens," Price persisted.
"I do believe the buyer would be confused. I look at this phone (a Samsung Galaxy model) and believe Samsung ripped off a number of elements," he said.