Apple and Samsung are hurtling towards a major courtroom showdown that now looks like it can't be avoided. Lawyers representing the two leading smartphone companies jockeyed for position today in a last-minute attempt to gain a strategic edge over the other side. During a 90-minute hearing in a San Jose federal court, they argued over everything from scheduling changes to what will go in the jury's notebooks.
Barring a last-minute settlement, a panel of 10 jurors will be chosen on Monday to hear the case that will be the centerpiece of a worldwide clash between the two companies over smartphone patents. Apple and Samsung have become the big dogs of the uber-lucrative smartphone industry; between them, they control 54 percent of the global market.
The stakes couldn't be higher: Apple is demanding just over $2.5 billion in damages. Today's hearing is the last stop before the trial begins. Samsung has already been slapped with an injunction for two products while the case is being heard, an extraordinary step taken by Judge Lucy Koh after her initial decision to not grant an injunction was overturned by the U.S. Court of Appeals for the Federal Circuit.
Samsung lawyers ask for more time—but quickly back down
Judge Koh, who is overseeing the case, heard from lawyers on each side as they hashed out issues that will affect the details of the trial—from how patent claims should be presented, to whether jurors should be given photos of the various witnesses to jog their memories during deliberations.
About an hour into the hearing, Judge Koh brought up last-minute requests by Samsung's lawyers to change the presentation time allowed at trial. Those requests, it became clear, were not going to be entertained.
Both sides are scheduled to get 25 hours to make their case to the jury. In a motion filed last night, however, Samsung said that they might need more than that to respond to Apple's wide-ranging claims. Koh was exasperated by the four separate requests for reconsideration that Samsung had filed.
"You say you don't know where they're going, but you've already been to trial against Apple at the ITC," said Koh, exasperated. "What is it you don't know now that leads you to believe you need unlimited witnesses, and that you need 400 exhibits?"
The dates of the trial have been set, Koh said, and the 75 potential jurors who are showing up to court on Monday have already been pre-screened, affirming they are available for the trial dates. Then Koh offered exactly what Samsung didn't want—to split the case in two, giving Samsung its own separate trial to prove Apple is infringing its patents. "I could have put your case on a separate schedule, and given you a separate trial date," said Koh curtly, noting that Samsung's tit-for-tat lawsuit against Apple was filed second. "I see this motion...and I feel frustrated. I could have sent you to another district judge."
That's what Apple had wanted all along, and it saw an opportunity to re-argue that position today. "Your Honor, it will be easier for a jury to get to a verdict if these cases are separated," said Harold McElhinny, one of the lead Apple lawyers.
Seeing Koh's anger, Samsung lawyer Charles Verhoeven quickly backed down. From Samsung's point of view, having both sides present their patents to the same jury offered "parity" that would balance out the trial, and that was more important than more time.
"I hear you loud and clear, Your Honor," said Verhoeven. "Our choice is parity, and we'll take it."
Fighting over the minutiae of Apple's "sloppy" patents
The two sides have sparred about almost everything over the course of the case, but there's little time left to argue over the nitty-gritty. At several points, Koh cut lawyers off, telling them it was time to move on to the next topic on a long list of pre-trial issues.
Other than the scheduling issue, the meatiest arguments took place over how some of Apple's design patents should be interpreted. One of the patents, for instance, shows how Apple designs its smartphone screens. The two sides butted heads over how those patents should be presented to the jury, with Apple lawyers urging Koh to find that the "shape, placement, and dimensions" of the screen are not functional, but rather, design elements that should be protected by law. Samsung lawyer Charles Verhoeven objected to that, saying Apple was trying to "add words" to a problematic patent.
They also argued over inconsistencies in some of Apple's patent drawings. An Apple lawyer argued that the dotted and dashed lines on design patents should be considered "guidelines," and seen "in context." Verhoeven, meanwhile, argued that Apple should be held fast to the details of its patent, flaws and all. "These have specific public notice functions," he said. "The public has a right to look at, and rely on, these rules."
Koh seemed to side with Verhoeven in noting the inconsistencies in one patent.
"There may have been some unfortunate prosecution here," said Koh, citing "sloppiness" in one of the patents. "Some of the pictures of the [phone] face have a broken line, and some don't."
The judge has already made other pre-trial rulings that made news, including her decree that Steve Jobs' comments about wanting to wage "thermonuclear war" against Android should be kept out of the trial.
As the biggest smartphone trial begins, the press lawyers up
Reuters news service has hired its own lawyer, Karl Olson, to intervene in this case, objecting to the parties' efforts to seal large quantities of documents. Michael Jacobs, representing Apple, promised Koh his team would be "very specific and granular" about what they want to seal.
Koh suggested she's planning to make the trial as open as possible. "There's a presumption that everything is going to be publicly disclosed," she said, and it's up to the two duelling corporations to make a case as to why any evidence is so sensitive it needs to be sealed. The judge seems to be taking a page out of Judge William Alsup's recent handling of the Oracle v. Google case, clearing out the attorney's lounge in the small San Jose courthouse for the use of journalists, and ordering exhibits to be deposited daily in that room on flash drives.
The trial in Koh's court will be the third major smartphone patent battle to be overseen to completion by a U.S. judge. The first, Oracle v. Google, resulted in a major win for Google, which defended its Android operating system against claims of infringing Java-related patents and copyrights brought by Oracle after it bought Sun Microsystems. The second smartphone trial, Apple v. Motorola, never happened—it was canceled by Judge Richard Posner, who went on to criticize the whole U.S. patent system as out of whack.
The San Jose legal brawl is one element of a worldwide patent fight between the two companies. Aseparate trial between the two companies began on Monday in Australia, and is expected to last three months, and related litigation is pending in the U.K. and Germany. Only the San Jose case puts the enormous U.S. market at stake, with the threat of an injunction and big damages against the losing side.