Samsung Gets In Last Word Against Apple

Testimony wound down in the Samsung vs. Apple trail Friday, Aug. 17, and Samsung, starting the day short on time, somehow got in the last word.

With a little over six minutes left on the clock, Samsung again called Tim Williams, an expert in wireless communications, and a witness who seemed to arouse Apple's defensive instincts more strongly than any other. On Aug.14, when he was scheduled to testify, an Intel lawyer unexpectedly showed up to protest that Williams might reveal proprietary Intel source code. Intel needed to block such a development, the lawyer told District Court Judge Lucy Koh, because it had not known of a conflict of interest that Williams had failed to reveal to it.

That at first played well with Judge Koh, who advocates open procedures and is adamant that the record of the trial be a public one. She started questioning Williams, then smelled maneuvering. The incident produced Koh's second most notable declaration of the trial: "I want papers. I don't trust what any lawyer tells me in this courtroom. I want to see papers," she told the assembled Apple lawyers and Intel interloper. After review, she allowed Williams to be sworn in.

[ What was Koh's most memorable comment? See Apple, Samsung Battle Over Damages In Patent Trial. ]

Williams testified knowledgeably about the value of Samsung's patents governing transmissions on a wireless network. Other witnesses for Samsung had acknowledged that Samsung never approached Apple with information that it was infringing and only after it had been sued by Apple did it suggest a remedy in terms of royalties, a proposal that Apple rejected.

In cross-examination of Williams on Aug. 14, Apple's Bill Lee, both highly technical himself and skilled at getting expert witnesses to say what he wants them to, made little headway against Williams. Now in the waning minutes of the trial, the former wireless entrepreneur reappeared on the witness stand, ready to go again.

Apple had started the day with nearly four hours of time to its credit; Samsung just 46 minutes. Both sides were allotted 25 hours at the start of the trial. Apple used its remaining time to orchestrate a march of expert witnesses who alternately described Apple's patents as valid and Samsung's as invalid. Apple informed Samsung of its design and utility patents covering the iPhone in meetings leading up to its filing suit last year, but the two parties were unable to reach an agreement.

Given their time limitations, there was little Samsung's attorneys could do except hunker down against this Apple expert witness barrage. Occasionally, a Samsung attorney would pop up for brief cross-examinations. Apple expert witness Hyong Kim testified Friday that Samsung had been wrong when it asserted its 516 patent was instrumental in getting cellular handsets to drop fewer calls and manage its power better. He added, "I've concluded the patent is invalid."

Samsung lawyer Charles Verhoeven was on his feet to cross-examine. "You don't dispute the accuracy of how the Intel documentation describes the operation of the baseband processor?" he asked. Kim did not. Nothing further, your honor," Verhoeven said and returned to his seat. It was an exchange that seemed to leave Kim's testimony intact.

As the day wore on, each side were down to its final six minutes. Samsung needed to get its 516 patent back in play. It closes off competing channels in a cellphone, across which a cellphone's power is normally subdivided, with a maximum for each. Under the 516 approach, it can concentrate power on sending a complete long message or message with photos, video, or other data-intensive content. The iPhone and other manufacturers' smartphones implement the 3GPP standard, which includes the 516 power management approach. Intel's documentation confirms that the baseband processor used in the iPhone supports the standard, according to witnesses' statements in court. But the reputation of the 516 patent needed to be re-established after all the expert testimony against it. Another Apple witness, Edward Knightly, professor of electrical and computer engineering at Rice University and an IEEE fellow, invoked a patent won by Anil K. Agrawal, a civil engineering professor at the City University of New York. His detailed analysis disputed the validity of Samsung's 941 patent. "The 941 patent claims are invalid due to Agrawal," a patent issued seven years before Samsung's. "The Apple products do not infringe," he said

Now it was Williams turn on the witness stand. In the waning minutes, and in a few words, he rebuilt Samsung's claims. The Agrawal patent, he said, does something similar to Samsung's technology described in the 941 patent but it's wrong to cite it in this case. That's because it governs a transmission from a satellite receiving/transmitting station on land, "a big concrete block building," to a satellite, not a smartphone's transmission to a cell tower, he said.

Kim had shown a slide displaying a voice channel being managed by a patented method known as Hatta, instead of the Samsung patent's approach. "Hatta causes the problem that the (Samsung) 516 patent solves," Williams said under questioning by Verhoeven.

[ Want to learn more about how Apple's infringement charges threaten Samsung's smartphone designs? See Samsung's Propects Dim Vs. Apple; What Next, Android Designers? ]

Apple had also challenged Samsung's 460 patent that governs how a picture accompanies an email text. Apple attorneys had produced testimony that the Japanese Yoshita patent superseded Samsung's and Apple's use of the technology, and did not infringe due to prior art. Williams again responded. "The Yoshita approach doesn't display the image in the email. It just attaches a file. It's not the same," Williams said.

As the trial ended, the nine jurors were left with volumes of expert testimony that directly contradicted the others. Who knows how they will sort all the conflicts? But the time advantage that Apple had enjoyed at the start of Friday's testimony was somewhat obviated by Williams' few minutes on the stand.

Intel and Samsung compete in supplying baseband processors--the chips that send and receive cellphone transmissions. In trying to get Williams off the witness list, Intel lined up beside Apple in this case. That's not surprising, but it's also hard to say what impression that left with the jury.

Susan Kare, the well-known icon expert and designer of the early Macintosh icons, now running her own design firm, in her second appearance at the trial said Samsung had alternatives to copying the iPhone's icon style. As examples, she showed slides of the RIM BlackBerry Storm and BlackBerry Torch keyboards. But RIM may be an example that Samsung hopes not to emulate, given its financial difficulties.

Michael Walker, another Apple expert witness, is head of the school of natural and mathematical sciences at Kings College, London, and a former chairman of the board of the European Telecommunications Standards Institute (ETSI). He was also the only witness who held the title Officer of the Order of the British Empire, "an honor conferred by the monarch," he told the court.

He said Samsung had failed to live up to its obligations as a member of the standards body by failing to disclose that it held a patent on a technology that was going into the wireless 3GPP standard. Samsung said it had a right to keep the proprietary information as a trade secret under ETSI rules. It filed notice of the patent about two years after the 3GPP standard was enacted. Walker pointed out policy statements in ETSI rules of conduct that call on participants to disclose patents before standards are enacted.

He was later countered by David Teece of University of California, Berkeley's, business school, and a Samsung expert witness who explained many of ETSI members stretch the patent reporting rule into periods running "weeks, months, or years" after standards are enacted. He added with a trace of sarcasm that, as an economist, he looked at what people actually do to determine what rules they're following.

The Order of the British Empire just isn't what it used to be.

Both sides will make two-hour closing arguments Tuesday. The judge and attorneys from both sides will argue Monday about what should be in Judge Koh's instructions to the jury in the complex case.

Samsung remains vulnerable to charges of copying the iPhone's icon appearance and layout. Samsung may argue Apple doesn't own some of the symbols used in the icons, such as the Ma Bell-era handset, and shouldn't be able to restrict other companies from using them. That's somewhat irrelevant to the fact that Samsung's use of the symbols on small squares with rounded corners, with a colorful background on a 4 X 4 grid, makes them closely resemble the overall look of the iPhone's home page under patent law.

To combat that, Samsung's Verhoeven has been developing a second argument, that smartphone icons are not just design elements but functional as well. Icons shaped distinctly different from Apple's, say a Ma Bell telephone handset on a triangle instead of a rounded square, would look different from the Cupertino's company's. But they would also reduce the touchable area by half. Can Apple own the square with rounded corners shape when it has a useful function to all vendors? 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.