Likewise, Samsung will argue that the iPhone's design, described repeatedly by Apple witnesses as "unique" and "beautiful," is partly a result of the phone's functional parts, not just Apple design brilliance, and all phone makers will be handicapped if Apple's design patent ends up governing how the phone functions may be arranged. The leading candidate for this argument is the speaker slot through which the phone user listens to a call. Apple's calls the placement of that slot part of Apple's distinctive design. Verhoeven is likely to argue all smartphones have the speaker slot in the same area on the phone; it's a necessary function that can't be owned by a single design patent holder.
But just how vulnerable Samsung is to the charge of copying is clearest on the issue of tablet computers, especially the Galaxy Tab 10.1. That issue was thrown into sharp relief Wednesday, Aug. 15, when Apple aired a warning on the Tab 10.1 to Samsung that came from Google. With Samsung principal designer Jin Soo Kim on the stand, Apple's Harold McElhinny asked him if he knew that Google had informed Samsung it should change the 10.1's design. The incident occurred after the 2010 Mobile World Congress in Barcelona. "Isn't it true Google told Samsung its design looked too much like the iPad?" McElhinny asked.
"I didn't receive that feedback directly," said Kim.
"Isn't it true Google asked you to change the design so it wouldn't look like the iPad?" persisted McElhinny.
Kim said he learned about the Google comments recently as he reviewed documents in preparation for the trial. He declined to say who from Google gave Samsung that feedback but raised doubt about its value by saying he wasn't sure that represented top management's thinking at Google.
It was not made clear why Google would have commented to Samsung at all, although Google's and Samsung's interests are somewhat intertwined as Samsung produces cellphones for several users of Google's Android operating system. Subsequent events showed Google was planning to introduce its own tablet, the Nexus 7, which it did at its San Francisco show, Google I/O, in June. Even so, there was no direct connection established in the trial between Google and Samsung in 2010.
If "I don't trust what any lawyer tells me in this court room" is Judge Koh's second most notable statement during the trial, as noted above, what was her first? Probably her Aug. 16 declaration, "unless you're smoking crack, you know these witnesses are not going to be called."
Apple attorney Bill Lee, usually the serious sort, had tried to lighten the atmosphere Thursday by saying no, he was not smoking crack, before offering the judge a response. Koh began Friday morning's session with a greeting, "Well, Mr. Lee, I assume you're still not smoking crack."
Lee responded that his 86-year-old mother had seen the reports on the judge's remark and had immediately called him up. "She wanted to know what crack was," he reported, producing laughs all around. Apple's Harold McElhinny also rose to report that his daughter, an attorney in Washington, D.C., had messaged him that the only answer to give the judge when she asks if you're smoking crack is, "No, ma'am!" The judge and the attorneys laughed together.