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The Latest in Apple v. Samsung: Samsung Witness List, 2 New Lawyers, Demonstratives, Transcripts, Jury Instruction Fights ~pj
Sunday, August 12 2012 @ 03:25 AM EDT

The Apple v. Samsung trial begins again Monday. Samsung has filed its witness list [PDF], because Apple should be finishing up its case this coming week early and then Samsung presents its side of the story to the jury. We get a peek in advance, because the parties have filed the graphics [PDF], or as the law calls them the demonstratives, that each used in opening statements (and with witnesses), so we can see in advance what Samsung will be showing and explaining to the jury. The first seven witnesses will be: Markus Paltian (by deposition; see page 64 of Samsung's demonstratives used in its opening statement), Andre Zorn of Intel (by deposition; see page 72 of Samsung's demonstratives used in its opening statement), Tim Williams, Ph.D., Benjamin Bederson, Adam Bogue, Clifton Forlines, Ph.D. , and Woodward Yang, Ph.D. The links are my best guesses in some cases.

And Samsung has two new lawyers added to the team, Joseph Milowic III and Mark Yeh-Kai Tung, both of Quinn Emanuel. Hopefully they are geeks, and they seem to be. Milowic is an engineer and then a lawyer; and Tung went to MIT and then Harvard Law. They are both young and handsome, and that helps too, as we saw in the Oracle v. Google trial.

The parties are fighting -- surprise -- over jury instructions. More he said, she said. Apple's strategy, I think, both in the media and in the courtroom, is to make Samsung look like the bad guy, and it says [PDF] Samsung isn't cooperating. Samsung "disagrees with Apple’s rendition of events" [PDF].

Professor Michael Risch, who wrote an article recently for us about patents, told me something happened last week that is favorable to Samsung, having to do with Apple's trademarks being ruled as having secondary meaning but not being famous. And also he gave us some tips on how to learn more about trade dress and design patents.

We also have some newly available hearing transcripts and a new Apple v. Samsung Timeline here on Groklaw, so you can find the most important documents, including some filed in paper format.

The New Timeline, Paper Exhibits:

It's a Quick and Dirty version of a Timeline, with just the most important documents so far, and we'll be adding more to it as we have time, but the trial is almost half over, so speed matters. I particularly focused on the orders, because Professor Risch told me that the appeal is likely to be mostly about what evidence was allowed in and what wasn't. So that's why I decided, due to time constraints, to focus first on getting the orders. But we have some exhibits filed only with the court, not digitally, Exhibit 5, Exhibit 8, and Exhibit 11, all attached to Samsung's Trial Brief. You'll find them on the Timeline page. We had to stand on our heads to get them, but we got them. So enjoy.

Professor Risch on Famous v. Secondary Meaning:

I had asked Professor Risch what it means that the judge apparently told the jury last week that Apple's trademarks have secondary meaning but are not famous. Mercury News's Howard Mintz wrote that she said that to the jury, when he was live blogging on August 7. I didn't know what the implications of that were, so I asked him. And Professor Risch explained that to me like this:

To answer your question: famous v. secondary meaning. If a mark is famous, then it can be diluted even if no one is confused as to source - it's a magic bullet. If Koh says secondary meaning only, then that means dilution is off the table, which is good for Samsung. Another key issue is when the confusion occurs. No one is confused at point of sale, but there is a lot of academic debate (not that much really, as most academics reject the idea) whether post-sale confusion where there is no quality issue is actionable. Think of the knockoff bag - if people see it and think that it is crappy, it can harm the original creator. I don't know that we have that issue here.
So that's good for Samsung, assuming the media report is accurate.

Hearing Transcripts:

While we will be adding more to the Timeline as we are able, remember that you can also get many of the documents for free from Justia. However, what we have collected includes some newly available hearing transcripts (there will be more available in October) that Justia doesn't have. They don't have the paper exhibits either. Here's a list of the transcripts:

  • 78 - May 17, 2011 hearing before Judge Koh re: Samsung's motion to compel

  • 109 - May 12, 2011 hearing before before Judge Koh re: Apple's motion to expedite discovery

  • 277 - Transcript of September 28, 2011 hearing before Judge Grewal re motion to compel (looks like the hearing just prior to the [267] Order --- note, the docket says this was before Judge Koh but the transcript says it was Judge Grewel)

  • 507 - Hearing before Judge Koh re motion to exclude (docket [176])

  • 569 - Hearing before Judge Grewal re 9 motions (we begin to see signs of displeasure toward the parties)

  • 657 - Hearing before Judge Grewal re 10 discovery motions January 19, 2012 (more displeasure from the Judge)

  • 704 - Hearing before Judge Koh re tutorial hearing, January 17, 2012

  • 705 - Hearing before Judge Koh re Claims Construction / Markman, January 20, 2012

  • 793 - Hearing before Judge Grewal re Apple's motion to shorten time for briefing and hearing re their motion to compel ([738]), February 17, 2012 (more anger from Judge Grewal)

  • 818 - Hearing before Judge Grewal re Apple's motion to compel regarding timing for producing documents in Korean language, March 6, 2012
  • 884 - Hearing before Judge Grewal re Apple's Rule 37(b)(2) motion (motion for sanctions regarding source code production in discovery), April 24, 2012
Trade Dress and Design Patents:

Trade dress is, I gather, as almost as controversial as patents, or getting that way, as folks try to extend the protection more and more broadly to where it's almost like patents or copyright. Professor Risch suggested, if we want to understand it more deeply, to take a look at some of the papers written by Mark McKenna of Notre Dame, which are collected at ssrn.com Also, Dennis Crouch of Patently O has written about design patents, and he's had some guests do so as well. If you go there to Patently O, you can just search for design patents. For example, here's A Trademark Justification for Design Patent Rights, published on August 11, 2010.

The Filings:

The latest filings:

1669 - Filed & Entered: 08/10/2012
NOTICE by Apple Inc. APPLE'S REPORT REGARDING EFFORTS TO MEET AND CONFER ON FINAL JURY INSTRUCTIONS (Attachments: # (1) Declaration of Marc J. Pernick, # (2) Exhibit A, # (3) Exhibit B, # (4) Exhibit C, # (5) Exhibit D, # (6) Exhibit E, # (7) Exhibit F, # (8) Exhibit G, # (9) Exhibit H, # (10) Exhibit I)(Jacobs, Michael) (Filed on 8/10/2012)

1670 - Filed: 08/10/2012; Entered: 08/11/2012
RESPONSE to re [1669] Notice (Other), Samsung's Response to Apple's Statement Regarding Jury Instructions by Samsung Electronics America, Inc.(a New York corporation), Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC. (Attachments: # (1) Declaration of Thomas R. Watson)(Maroulis, Victoria) (Filed on 8/10/2012)

1671 - Filed & Entered: 08/11/2012
Witness List by Samsung Electronics America, Inc.(a New York corporation), Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC Samsung's August 11, 2012 Rolling List of Witnesses. (Maroulis, Victoria) (Filed on 8/11/2012)

1672 - Filed & Entered: 08/11/2012
MOTION for leave to appear in Pro Hac Vice FOR JOSEPH MILOWIC III ( Filing fee $ 305, receipt number 0971-7041072.) filed by Samsung Electronics America, Inc., Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC. (Maroulis, Victoria) (Filed on 8/11/2012)

1673 - Filed & Entered: 08/11/2012
Proposed Order GRANTING APPLICATION FOR ADMISSION PRO HAC VICE FOR JOSEPH MILOWIC III by Samsung Electronics America, Inc., Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC. (Maroulis, Victoria) (Filed on 8/11/2012)

1674 - Filed & Entered: 08/11/2012
NOTICE of Appearance by Mark Yeh-Kai Tung (Tung, Mark) (Filed on 8/11/2012)

1675 - Filed & Entered: 08/11/2012
NOTICE by Apple Inc. JOINT SUBMISSION OF DEMONSTRATIVE EXHIBITS DISPLAYED TO THE JURY THROUGH AUGUST 7, 2012 (Attachments: # (1) Exhibit A, # (2) Exhibit B, # (3) Exhibit C, # (4) Exhibit D, # (5) Exhibit E, # (6) Exhibit F, # (7) Exhibit G, # (8) Exhibit H, # (9) Exhibit I, # (10) Exhibit J, # (11) Exhibit K)(Jacobs, Michael) (Filed on 8/11/2012)

1676 - Filed & Entered: 08/11/2012
REPLY (re [1647] MOTION To Exclude Samsung Witness Testimony ) APPLE'S REPLY IN SUPPORT OF MOTION TO EXCLUDE SAMSUNG WITNESS TESTIMONY filed byApple Inc.. (Jacobs, Michael) (Filed on 8/11/2012)

1677 - Filed & Entered: 08/11/2012
Declaration of JASON R. BARTLETT in Support of [1676] Reply to Opposition/Response filed byApple Inc.. (Attachments: # (1) Exhibit 1, # (2) Exhibit 2, # (3) Exhibit 3)(Related document(s)[1676]) (Jacobs, Michael) (Filed on 8/11/2012)

The Demonstratives:

On the demonstratives, #1675, Exbibit A is the list of what the others are, and here it is:

  • Exhibit B - Apple’s opening statement (lots of rectangles with rounded corners; before and after the iPhone; media acclaim for Apple; Samsung reaction to iPhone; ditto iPad; media saying they copied; and the Apple patents matched to products, in case you can't look at them - don't look at this demonstrative. Page 77 lists what Apple considers the elements of its trade dress, not just round corners on a rectangle, but icons and other things; ETSI materials and snips from depositions, and finally it seems to be claiming apps are patented, "Apple's Dynamic Apps Approach")

  • Exhibit C - Samsung’s opening statement (Samsung in mobiles since 1991 internationally, its innovations, examples of rectangles with rounded corners and minimalist design in phones since 2005, two years before the iPhone; ditto iPad but going back to 1994; page 7 shows pre-iPhone Samsung designs in phones; page 8 is about "Sony-style" design; then some Apple internal quotes on benchmarking and on not being first with innovation, showing Apple teardowns of Samsung phones; the judge's preliminary instruction on trade dress; testimony of Apple inventors on lack of consumer confusion; page 16 is Apple "Claimed" iPhone Trade Dress Registration, which lists certain icons and how they are configured, later Samsung shows their homescreens are quite different; pictures of Samsung phones, showing they are different from Apple's; Apple internal documents and pictures they showed in emails of various competitor's phone and tablet designs; snips of Apple witnesses regarding lack of dilution; page 35 shows the Fidler from 1994; pages and pages of prior art; then Samsung's patents it alleges Apple infringes; ETSI's rules and an Apple witness, the expert on ETSI rules, saying he doesn't know if Samsung has violated them;

  • Exhibit D - Video files played during Samsung’s opening statement (filed with the court, not digitally)

  • Exhibit E - demonstratives used during the testimony of P. Schiller (media about how great Apple products are)

  • Exhibit F - S. Forstall (again, not available digitally)

  • Exhibit G - J. Denison (phones, including a list of Samsung phones not sold in the US)

  • Exhibit H - P. Bressler (his credentials, graphics showing differences between alleged prior art and the patents)

  • Exhibit I - S. Kare (Susan Kare icons; graphics showing iPhones and various Samsung phones, highlighting icons)

  • Exhibit J - R. Winer (fame versus secondary meaning, the elements explained; Sleekcraft factors listed, some of them; dilution explained)

  • Exhibit K - H. Poret (secondary meaning and customer studies)
The demonstratives listed for Samsung in its opening statement give us a pretty clear idea of what Samsung wants to show the jury and present evidence to support each element, to the degree the judge allows them. And you'll notice that some, once again, are filed only with court, so if anyone is free to stop by the courthouse and get them for us, that would be lovely.

And if that's not enough to keep us busy, I give up. I haven't read some of this myself yet, except to skim them, so we can all read together. Post anything that stands out as being of particular interest, will you? And I was working so fast, there may be errors. So list any that you notice so I can fix them. But first, to sleep!


  


The Latest in Apple v. Samsung: Samsung Witness List, 2 New Lawyers, Demonstratives, Transcripts, Jury Instruction Fights ~pj | 188 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
I guess
Authored by: Ian Al on Sunday, August 12 2012 @ 05:16 AM EDT
It's all about the difference between trademarks and trade dress. I thought I
knew, but I am just making assumptions.

The jury was advised that Apple's trademarks had secondary meaning, but were not
famous. My immediate thought was of an apple with a bight in it (AKA an apple
with a bite taken out of it). I Googled Apple trade marks and was put in my
place by seeing a huge list of trade marks and service marks including 'Apple',
'iTunes' and 'iPad'. It was the Apple logo trademark that had come to my mind.

I don't think the judge was saying that the Apple logo was not famous. So, to
what was she referring? Could it be that trade dress and design patents come
into the general catagory of trademarks?

I suppose what she is saying is that the trade dress for iPads and iPhones
comprising the curved-corner, design patent, the brightly-coloured,
rounded-corner icon arrangement and the minimalist design together form a trade
dress that has secondary meaning as an Apple-associated trade dress for some
products, but is not sufficiently famous such that it shouts 'Apple' as a
brand.

I'm guessing. I assume that the jury have a more explicit set of instructions...
or they will do after Apple and Samsung finish battling over them! I can see why
that battle is particularly important.

---
Regards
Ian Al
Software Patents: It's the disclosed functions in the patent, stupid!

[ Reply to This | # ]

Apple, a really bad apple
Authored by: IMANAL_TOO on Sunday, August 12 2012 @ 07:00 AM EDT
Apple, a really bad apple. The arrogant Steve Jobs probably is to blame for
that.

When a patient came to the doctor and said - Hey, doc it hurts when I do this.
The doctor replies - So don't do that.

When a customer came to Apple and said - Hey, the phone doesn't work if I hold
it. Steve Jobs to the poor Apple customer - So, don't hold it, or buy our case
for it.

Yes, that is a true story from
http://techcrunch.com/2010/06/24/iphone-4-antenna-issue/



---
______
IMANAL


.

[ Reply to This | # ]

Re: Assumed Trade Dress Controversy
Authored by: Udo Schmitz on Sunday, August 12 2012 @ 07:10 AM EDT
Trade dress is, I gather, as almost as controversial as patents, or getting that way
I'm not sure about that. If there is a controversy, it is at least half a century old. I'm in the process of reading through the last 50 years of german design magazine f orm and already in the first decade came across a lot of articles about trade dress- (Aufmachung), trademark- and design patent- (Geschmacksmuster)issues. Example (has german, english and french text):

Page 23 from issue 034/1963: Would you decide for Braun or Bauknecht?

[ Reply to This | # ]

Corrections Thread
Authored by: bugstomper on Sunday, August 12 2012 @ 07:34 AM EDT
Please summarize in the Title box error->correction or s/error/correction/ to
make it easy to scan see what needs to be corrected and to avoid duplication of
effort.

[ Reply to This | # ]

Off Topic threads
Authored by: bugstomper on Sunday, August 12 2012 @ 07:41 AM EDT
Please stay off topic in these threads. Use HTML Formatted mode to make your
links nice and clickable.

[ Reply to This | # ]

News Picks Threads
Authored by: bugstomper on Sunday, August 12 2012 @ 07:44 AM EDT
Please type the title of the News Picks article in the Title box of your
comment, and include the link to the article in HTML Formatted mode for the
convenience of the readers after the article has scrolled off the News Picks
sidebar.

Hint: Avoid a Geeklog bug that breaks some links by putting a space on either
side of the text of the link, as in

<a href="http://example.com/foo"> See the spaces? </a>

[ Reply to This | # ]

Comes transcripts here
Authored by: bugstomper on Sunday, August 12 2012 @ 07:47 AM EDT
Please post your transcriptions of Comes exhibits here with full HTML markup but posted in Plain Old Text mode so PJ can copy and paste it

See the Comes Tracking Page to find and claim PDF files that still need to be transcribed.

[ Reply to This | # ]

What I wish for...
Authored by: Anonymous on Sunday, August 12 2012 @ 04:14 PM EDT
Given just how much Apple spent on marketing and how prominently all those
articles feature in its case, I sincerely wish we could get a copy of that order
requiring the disclosure of every paid media shill in this case.

There's no chance of that, I fear, but I can still dream.

[ Reply to This | # ]

Rounded Corners - Mechanical Engineers Point of View
Authored by: cassini2006 on Sunday, August 12 2012 @ 07:34 PM EDT

Almost every mechanical safety standard and many blue-prints come with a notation about rounding corners. If you ship a device with a sharp corner, it could cut someone. As such, every device that ships must ship with rounded corners. This even applies to knives. No exposed sharp surfaces can be shipped. As such, most knives come with methods to protect the user from the sharp corner of the cutting surface.

How then, does Apple even claim that rounded corners on a flat device with a square screen is unique?

[ Reply to This | # ]

video covering inertial scrolling
Authored by: Anonymous on Sunday, August 12 2012 @ 07:48 PM EDT
I don't know if this is new to anyone, but osnews has a post about a 1992 video
from Sun that has a device with inertial scrolling in it. The narrator evens
mentions it by name. I would say this is prior art against Apple's patent on
the technology.

[ Reply to This | # ]

Nice doc with Apple patents it alleges Android infringes
Authored by: Anonymous on Monday, August 13 2012 @ 04:55 AM EDT
Found on the Allthingsd site - Honestly how were those allowed to be patented?

Here

[ Reply to This | # ]

A legitimate Trade Dress issue
Authored by: Anonymous on Monday, August 13 2012 @ 07:20 AM EDT
There are legitimate cases of Trade Dress confusion. But if Apple is only
presenting the bullet points raised in their iPad Trade Dress slide (
http://arstechnica.com/tech-policy/2012/08/samsung-attacks-apples-expert-witness
-over-product-similarity/ I haven't read the filings for details, sorry), then
those are pitifully too generic to be of any protectability whatsoever.

For a good example of a potential Trade Dress issue, consider the game
Deathtrack from 1989:
http://www.mobygames.com/game/dos/deathtrack
Particularly, note the font used on the cover, and note that it's a game about
armed futuristic cars racing and shooting at each other.

Now note the cover of Steve Jackson Games Car Wars Deluxe Edition, published in
1985:
http://geek-news.mtv.com//wp-content/uploads/geek/2012/05/Car_Wars_classic_cover
.jpg

It would take actual work to discover that Deathtrack was not a licensed
version, though Origin did publish a licensed version, also in 1985:
http://www.mobygames.com/game/autoduel

I was always curious about the licensing status of the Deathtrack game, due to
the conspicuous absence of any mention of Car Wars or SJG. Conspicuously absent,
I says.

It's similar to all the straight to video/cable movies that come out whenever a
movie based on public domain material is released by a major studio (ala
Beowulf).

As I said, I don't know if that slide from Apple was just bullet points, with
actual testimony giving actual detail, but if that's all the detail they
presented, then that's just far too generic.

For starters, neutral color (black or white)? How much many does Pantone earn
from T-Mobile, Home Depot, Target, Walmart, et al, to ensure that everything,
from their websites, to their shopping bags, to their printed flyers, to their
store fixtures, are the same exact shade of red, pink, orange, or blue? In fact,
I likely don't have to tell any of you which color goes with which store, do I?
Just plain ol' black or white is insufficiently distinctive to qualify for
protection.

Borders on all sides? Well, maybe if they provided a specific ration of border
width to display size...

Flat clear surface? Umm...what else would it be?

A matrix of colorful square icons with rounded corners? Maybe, and I guess that
this will be the case that decides it, as the only other case that got tried all
the through only concerned itself with copyrighting the functional aspects of a
menu layout (Lotus v. Borland):
http://en.wikipedia.org/wiki/Look_and_feel

bkd

[ Reply to This | # ]

F700 designer barred from testifying
Authored by: Anonymous on Monday, August 13 2012 @ 12:55 PM EDT
See this :
http://news.cnet.com/8301-13579_3-57491835-37/key-samsung-designer-barred-from-t
estifying-in-apple-case/

This is especially important when Samsung says the accused devices were inspired
by the F700.

[ Reply to This | # ]

Judge Koh moves to block
Authored by: SpaceLifeForm on Monday, August 13 2012 @ 01:03 PM EDT
"The risk of undue prejudice to Apple outweighs the probative value of Ms. Parks testimony."

Seriously?

Your slip is showing.

---

You are being MICROattacked, from various angles, in a SOFT manner.

[ Reply to This | # ]

Apple to appeal 2012-08-09 ruling
Authored by: SpaceLifeForm on Monday, August 13 2012 @ 01:32 PM EDT
Asks for delay.

They do not want the financial and marketing info to be made public.

They claim it is all a Trade Secret.

As we have observed over the years those that seek delay seem to be on the wrong side.

---

You are being MICROattacked, from various angles, in a SOFT manner.

[ Reply to This | # ]

I'm not an economist
Authored by: kawabago on Monday, August 13 2012 @ 03:55 PM EDT
Wouldn't an economist say that imitation of successful
designs, forcing leaders to keep improving, is what keeps
the marketplace vibrant?

Design patents lead to stifling innovation because
successful designs can keep imitators out of the market,
relieving the pressure on the leader to continue improving
the product. Design patents have the opposite effect to what
constitutional framers intended for patents.

[ Reply to This | # ]

The Latest in Apple v. Samsung: Samsung Witness List, 2 New Lawyers, Demonstratives, Transcripts, Jury Instruction Fights ~pj
Authored by: Anonymous on Monday, August 13 2012 @ 06:53 PM EDT
I happen to have a rectangular black phone with a square screen and rounded corners right here, and I found a picture. I'm fairly certain I could distinguish this from an iPhone, based on a few key differences, but if I saw someone walking down the street talking on one of these, I might be confused and think they don't seem as convenient and capable as Apple's advertisements claim.

[ Reply to This | # ]

Is Apple overplaying its hand?
Authored by: pem on Monday, August 13 2012 @ 10:58 PM EDT
Apple would seem to have a home field advantage in silicon valley.

But it appears that they are engaging in the sort of plaintiff theatrics that
are designed to sway an emotional East Texas jury.

Hopefully those don't work so well in a more tech-savvy environment.

It sounds like Samsung is staying cool and sticking to the facts. I certainly
hope so -- they only need to keep one juror on their side, and it sounds like
Apple is doing a really good Doctor Evil impersonation...

[ Reply to This | # ]

Trade secrets?
Authored by: pem on Tuesday, August 14 2012 @ 12:11 PM EDT
Howard Mintz is reporting that Intel's lawyer is complaining that Tim Williams apparently disclosed Intel's trade secrets.

Apple is probably Intel's biggest customer right now.

[ Reply to This | # ]

Icon similarities
Authored by: pem on Tuesday, August 14 2012 @ 06:37 PM EDT
Apparently Apple tried to show that Samsung copied icons by showing a Samsung document comparing Samsung and Apple icons from 2011, e.g. well after the lawsuit commenced and well after the icons were designed.

I can't be the only one who thinks that generation of such a document at that time was only prudent of Samsung, and Apple and their lawyers are acting like complete <redacted> here, can I?

[ Reply to This | # ]

Time to build railroads
Authored by: Anonymous on Wednesday, August 15 2012 @ 07:06 AM EDT
I had a professor (who taught history of science and technology) make a point
over and over about "when it is time to railroad, people build
trains.". His point was that when the technology was available, people
would build trains.
It seems to me that with both the iphone and the ipad, that Apple built devices
that had been visualized for decades (for example tablets seen in 2001,
"pocket computers" in "The Mote in Gods Eye"). The only new
thing about the devices was that screen and processor technology had gotten to
the point that made building these devices possible.

[ Reply to This | # ]

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