We have noticed this from the beginning when Apple asked to have details about the F700 phone and the “Sony” prototype kept out of court. Judge Lucy Koh originally prevented the evidence from being entered claiming it was too late in the discovery process to be allowed. We asked about this and many IP lawyers were a little surprised that it was not allowed since the F700 is a phone that Apple claims infringes on their patents. They felt that Judge Koh should have allowed the original brief and all evidence related to it. Even now Apple is still trying to block evidence that can show the origin and design concept for the F700 by asking that the original developer for the F700 not be allowed to testify.
Again we find this very unusual as do most of the attorneys we have spoken with. Fortunately for Apple this type of request is kept from the Jury so they do not know that Apple has asked for a significant amount of evidence to be excluded. When a company or person repeatedly asks for evidence to be excluded it is because they know that it weakens their case. We are fairly certain that Apple is aware of the impact bringing in the original designer of the F700 will have. After all they brought in one of the team that built iOS and designed the iPhone to help bolster their case and helped prevent one designer from having to show up for testimony (Shin Nishbori) about the inspiration for the final iPhone design.
Make no mistakes here. Apple is on shaky ground and they know it. They had thought that by parading a line of people that said “Samsung copied Apple” it would be all good. We imagine they did not expect the counters that Samsung has offered in this case. The simple brilliance of powering on a device for a witness in front of the jury to show off how different they are speaks volumes. The same can be said for the way Samsung has countered almost all of Apple’s witnesses by getting them to either contradict themselves or each other. Our personal favorite was Peter Bressler who came off looking a little foolish when he complained about how much detail Samsung’s lawyers wanted from him (yet he claimed he was trained to see the details by profession). The move by the Samsung team was intended to show that he did not perform a complete analysis, but a cursory one.
Still even on top of the shaky design and trade dress issues, Apple might not be doing so well in one of the other patents they are claiming. This is the famous rubber band patent or the “381” patent that was brought up yesterday and which Apple claims is infringed by 21 Samsung devices. We looked at the 381 patent (US patent number 7469381) and within about 5 minutes found multiple examples of prior art that Apple did not cite in their filing. What is more interesting is that a company by the name of M-CAM did a very detailed analysis of this patent and found significant overlap and prior art including 12 of Apple’s own patents. They also found a significant amount of public domain technology that would allow a company to implement the same functionality without infringing on Apple’s patent. One of Apple’s design witnesses admitted to that yesterday, but tried to limit the effect of his admission saying it would be difficult. After looking over the public domain technology it seems it would not be that problematic at all. This finding (that we are pretty sure Samsung is aware of) weakens Apples claim on the 381 patent and shows an overall weakening of their strategy.
Even the presentation of the “licensing offer” that Apple made to Samsung is not going to help much. We imagine it was originally intended to be part of the icing on the cake, but might come back to haunt Apple. Why would Samsung pay Apple if they were not infringing? The biggest issue here is their claims against Google’s Android. If Android infringes as their lead in statement claims, why is Samsung paying for phones that do not run Android? We have a feeling that the original move was to get a discount on the hardware they were buying from Samsung and had nothing to do with actual copying. Taking a look at the deal it would have significantly slashed the costs for Apple which would have allowed Apple to increase their already steep margins. Apple even included a discount if Samsung would cross license some of their technology to Apple… anyone want to bet we will see that one pop up again when it is Samsung’s turn. If Apple was asking for cross licensing it means they either planned to use or were already using Samsung IP in the iPhone. This is a small detail that might very well come back to haunt them.
Remember, you will read more headlines that will try to spin the Samsung V Apple case including headlines that are already proclaiming Samsung’s guilt. If you read a little more you might find that things are not that simple. Apple has been very lucky in many of their cases against rivals, but we have a feeling that their luck might quickly run out in this one. Too many of their experts sound like parrots which does impact the way a jury views the evidence presented while Samsung’s team appear to be much better at digging holes in Apple’s witnesses and evidence so far. Next week should see the start of Samsung’s half of the case. We are expecting some very interesting evidence presented by Samsung along with more drama from Apple and Judge Koh.
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