"Oh, I don't like that attorney," Lea Shaver, a young associate law school professor, reacted to the hard-nosed questioning by Samsung attorney Kevin Johnson as he grilled yet another Apple expert witness in a San Jose, Calif., courtroom Friday.
It was just another day of taking testimony in the Apple vs. Samsung patent infringement trial in U.S. District Court.
Johnson is one of the tough guys in the good cop/bad cop act that constitutes the Samsung legal team at the trial. John Quinn is another bad cop--he released to the press documents that the judge had ruled inadmissible as evidence on the opening day of testimony. The judge may later sanction him for releasing the documents and saying the jury ought to be able to see them.
Another member of the team, Charles Verhoeven (a.k.a. Charlie V.), is the opposite. He's the always respectful, smooth operator who--more than any other attorney in the courtroom--seems to most frequently enlist the jury's sympathies. Both sides of this act will need to perform at perfect pitch if Samsung is to have any hope of escaping unscathed from this trial. It's far from clear that it will.
Samsung has countersued over Apple's use of its own patents. Friday, Apple's attorneys revealed that Samsung had attempted to open a discussion of licensing Apple's patents, but after it had launched its Galaxy line of smartphones, which are accused of infringing Apple's rights. Apple proposed stiff terms and the two parties couldn't reach an agreement.
[ Want to learn more about how Apple is building its case that Samsung produced a look-alike smartphone? See Apple Design Expert Confused Samsung for iPhone. ]
None of that is going to count for much, now that the disagreement has come to blows. Patent law is what it is, an antiquated system for identifying and protecting designs and innovations from direct copying by competitors. The only test of whether a design has been copied is a set of fairly generic, black and white drawings filed with the patent application. If an accused party's device can be lined up as "substantially similar" to those drawings, the patent has been infringed.
In 1988, Apple sued Microsoft, saying it had copied key ideas of the Windows user interface from Apple's Macintosh. It lost that case, in part because Steve Jobs had admitted he had gotten ideas for the Mac from a demonstration of a visual user interface at Xerox Park; also, Apple had no GUI patents. By the time Apple was ready to launch the iPhone in 2007 and iPad in 2010, it had learned its lesson. It obtained 200 patents covering the products' design and user interface details.
Now the only thing that remains, as the platoons of blue pinstriped lawyers battle it out in San Jose, is how much wiggle room is left for Samsung before it's immobilized under the patent infringement net. The early decisions in this case by District Court Judge Lucy Koh cast an ominous shadow over Samsung's prospects.
Before the jury was seated, Koh had ruled in favor of an Apple request for a preliminary injunction against further sales of Samsung tablets, agreeing that Apple might be irreparably harmed if it had to wait for the outcome of the trial. The burden of proof needed to be strong for the judge to take such a stance, but she did, saying that Samsung's Galaxy Tab 10.1 is "virtually indistinguishable" from Apple's iPad in her ruling June 26. At the preliminary hearing last October, she stated that the Tab 10.1 "looks virtually identical" to the iPad.
Those are damning words in design patent litigation. In theory, a charge of copying can be upheld with only "substantial similarity," said Christopher Carani, chairman of the American Bar Association's design rights committee and former chair of the American Intellectual Property Law Association committee on industrial design, in an interview. "Judge Koh appears to be of the mindset that the accused Samsung tablet easily meets the 'substantially the same' infringement standard--so much so that the facts lead to one and only one conclusion--infringement," Carani said.
Furthermore, on another issue on which Koh retained doubts--regarding whether any prior art or preceding implementations of iPad-like tablets existed--Apple wasn't content with her refusal to rule in its favor and appealed to the U.S. Circuit Court of Appeals. A three-judge panel overruled Koh on that issue, and one judge said that its review "leads to one firm conclusion--that an injunction ... should be entered, and should be entered now."