SAN JOSE, Calif., Aug 10 (Reuters) - It was the end of a
long week in court in the Apple-Samsung legal war, and Samsung
attorney John Quinn was trying to block his adversary, Apple
attorney Bill Lee, from showing the jury a document.
As Quinn made his argument to U.S. District Judge Lucy Koh,
he slipped in a reference to Koh's pre-trial order blocking
sales of some Samsung products -- a subject Koh had forbidden
the parties from discussing in front of the jury.
"That was improper," said Koh.
"I apologize, your honor," Quinn responded.
"I have a difficulty believing that was not intentional,"
said the judge.
Koh allowed the document into evidence. But her admonishment
provided the jury with a glimpse into the unusual tensions
roiling beneath the lofty courtroom arguments about who might
have illegally copied whose technology.
Outside the jury's presence, Apple and Samsung lawyers
regularly accuse each other of unfair ambushes, dirty public
relations tactics and even doctoring evidence.
Quinn took the extraordinary step of issuing a press release
on documents that Koh barred from the trial -- an open display
of defiance that suggested a legal strategy aimed at creating
courtroom chaos. Quinn says he intended nothing of the sort.
Elite trial lawyers normally display a certain professional
comity in court, but little of that is apparent in this case. An
exasperated Koh has taken to managing the trial like a
schoolmarm, regularly scolding her errant charges and resorting
to tactics like deducting from the time they have to present
evidence if they make superfluous arguments.
The trial, which will determine whether Samsung violated
Apple patents in creating competing smartphone and
tablet-computing products, is now in its second full week, and
is expected to run through the end of August.
Despite some key pre-trial rulings Koh issued against
Samsung, during trial itself the judge has given the jury no
signals as to who she thinks is in the right.
Rather Koh, a 44-year-old appointee of U.S. President Barack
Obama, appears to take the view that if the two sides would just
act like grown-ups and pursue rational self-interest rather than
sling mud at one another, there wouldn't be a trial at all.
This week, Koh wistfully returned to a idea she first raised
at a pretrial hearing over one year ago.
"You didn't file any objections yesterday, and I was hoping
that maybe you had settled," she said. But in a case that is
more about professional pride and long-term market power than
money, there appears to be little basis for a settlement before
the verdict.
The two companies are close collaborators in many areas, as
Apple is one of Samsung's biggest customers for smartphone and
tablet components. Yet in court they seem determined to fight to
the death. Their executives pass one another in the hallways
without making eye contact. Complex business litigation in front
of a jury is sometimes approached as theater, or even sport, but
in this courtroom no one is having a lot of fun.
CELEBRITY TRIAL, SILICON VALLEY STYLE
The trial has captured the attention of the technology world
in part because the stakes are so high: Apple accuses Samsung of
copying the iPad and the iPhone, two of the most successful
products in the history of technology.
If Apple wins, it may be able to block whole categories of
competitors and cement its dominance of next-generation mobile
computing. The Korean firm, which is emerging as one of Apple's
most powerful global challengers, has counter-attacked by
alleging that Apple infringed some of its key wireless
technology patents.
But the trial is also titillating to the technorati because
of the unusual up-close-and-personal look it has provided into
the secret world of Apple.
Phil Schiller, Apple's long-time marketing chief, stood in
the hallway before testifying one day last week, making small
talk as reporters looked on. Normally seen in blue jeans -- even
during product launches-- one of Schiller's handlers teased him
about his dark suit and yellow tie.
On the witness stand, Schiller talked about how Samsung's
products impact ad campaigns; Apple has spent about $647 million
on advertising for the iPhone since its 2007 launch, and over
$457 million on the two-year-old iPad.
"If you're driving down the highway 55 miles an hour, you
have a split second to see a phone on a billboard," Schiller
said. "If it looks very, very similar and is copied, whose phone
was that?"
Earlier, Apple industrial designer Christopher Stringer took
the stand, looking every bit the part in a cream-colored suit
and shoulder length hair. He offered trivial details about the
Apple design process -- people work around a kitchen table! --
but in the information vacuum that surrounds Apple's internal
workings, trivia tops nothing.
The mountain of documents filed in the case -- over 1,600
docket entries and counting -- are anything but trivial, though.
Detail about licensing negotiations between Apple and the South
Korean company, early design ideas for the iPad, and even profit
margins for the iPhone and iPad have been revealed. (On every
$499 iPad, between $115 and $160 flowed into Apple's cash pile
through the end of March 2012.)
Koh is the first Korean-American to ever serve as a district
court judge: her parents immigrated to the United States and Koh
spent a good deal of her childhood in Mississippi, attending
majority African-American public schools, according to a
biography from Harvard Law School, her alma mater.
Each day of the trial, Koh trudges to her seat holding a
stack of thick binders with both hands. She keeps a close eye on
the jury, at one point offering them caffeine.
The judge gave Apple and Samsung 25 hours each to present
their evidence, but timing the attorneys' legal arguments has
now become one of her favorite devices in trying to get them to
conform to her standards.
On Tuesday, Koh said she would allow the jury to hear about
a study about consumer confusion between Apple and Samsung
products. Samsung attorney Charles Verhoeven asked to
reconsider. Koh started the clock, and Verhoeven ultimately
convinced Koh to keep the study out. It took six minutes.
Koh said she would charge each side three minutes, prompting
Apple attorney Michael Jacobs to moan.
"If it doesn't kill you, it won't hurt you, okay?" Koh said,
without smiling.
APPEALING TO THE LAYMAN
Both companies opted to put their battle in the hands of a
nine-member jury, overseen by Koh. For Samsung, the challenge is
to get jurors past any intuitive emotional response -- it's a
copy! -- and focus on the specific legal requirements of each
patent.
In other words, to get them to accept the idea that copying,
by itself, is not illegal.
Several of the techiest potential jurors were excluded from
the panel, including an Apple employee, another from Google, and
a man with over 120 patents. But there are still jurors with
engineering chops, and as befits the educated population in
Silicon Valley, seven out of nine have college degrees.
Only one juror owns an iPhone; a few have Samsungs (but not
one of its smartphones).
One morning last week, Koh brought jurors into court one by
one. Juror Number 6, a rail-thin young man who favors cargo
shorts, flip flops and videogames, sat alone in the jury box in
a courtroom packed with dark-suited lawyers and journalists
clattering on their laptops.
"I just want to find out whether, since we were together on
Tuesday afternoon, have you read or heard anything about this
case?" she asked. "No," the juror replied simply.
Koh's jury poll was also a result of Quinn's tactics.
Samsung had released a press statement that contained links to
documents which Koh ruled could not be shown to them, and Apple
accused Samsung of jury tampering.
The South Korean company, generally considered the underdog
in the case, only needs one holdout juror to deny Apple a win.
The case in U.S. District Court, Northern District of
California, is Apple Inc v. Samsung Electronics Co Ltd et al,
No. 11-1846.
(Reporting by Dan Levine; Additional reporting by Poornima
Gupta)
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