We thought about this one for a while this morning and could not find a single item to support this claim considering the current state of the trial and even looking for prior rulings of this type. Here is how we see it:
Samsung would like the original designer for their F700 phone (which was and still it in some of Apple’s exhibits), Hyong Shin Park to testify showing that Samsung was already moving toward the designs for the Galaxy X and other products before Apple launched the iPhone.
This testimony would have been used to counter Apple’s claims that Samsung copied the iPhone. It is similar in its scope to the brief filed by Samsung showing that Apple was inspired by something a Sony designer said in an interview (which changed Apple’s direction).
Judge Koh has bared both of these critical pieces of evidence giving in to Apple’s claims that they are irrelevant.
Now, correct me if I am wrong, but this is primarily about copying the design of the iPhone. Yes there are other patents in question here, but Apple is making the largest case of the trade dress of their (Apple’s) products. To prove their point they have called an Industrial Designer that has never designed a production phone and a former Apple employee who designed the smiling Mac icon. Although the first witness, Peter Bressler, we can sort of understand the second one had nothing to do with the iPhone or any of its icons. Susan Kare is a former Apple employee and has a chance of creating undue prejudice towards Samsung with her testimony.
Now some will claim that Samsung had the chance to object to Susan Kare’s testimony and report and they are correct. Samsung could have, however they knew that they could also refute the evidence in open court making it of limited use to Apple. They also knew that Judge Koh was unlikely to side with them in this instance after dealing with her so why put in the effort. Apple, on the other hand vehemently fought two critical pieces of evidence citing that they have no relevance in the case. Oddly enough both show that Samsung was working in the direction of the designs for the Galaxy S and other phones before the iPhone was launched. It helps to show that the evidence that Apple has put forward is actually a competitive analysis and not proof of copying.
After asking a few questions we have been told that in all likelihood Apple does not want this testimony because it IS damaging to their case against Samsung. We also have heard more than one reminder that it is not the number of exclusion requests that make a difference it is the level of importance. Apple has had more critical (and relevant) evidence barred than Samsung has. It is very likely that Apple has nothing to refute these two pieces of evidence which would eat away at their claims of copying and especially willful copying. This is something that Apple does not want and cannot have. We also wanted to point out that almost ANY evidence that proves one side or the other can create prejudice in the jury. The use of the statements that Samsung copied by each of Apple’s witnesses create prejudice against Samsung considering that the claim is not proven, but these witnesses state it as fact in their testimony.
We expect to see some interesting tactical moves by Samsung later this week to counter the exclusion of the key testimony. We are betting they expected it to be barred so probably have an alternate method for getting their point across in mind. In the meant time This week should be Samsung’s turn so you can expect to see them work to cover not only their defense against copying, but also bore in in their claims that Apple infringes on their patents. Things should get very interesting from here.
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