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Apple v. Samsung Trial Transcripts - Day 4 and 5 (Aug 6 & 7, the Exhibit Tampering Issue) ~pj Updated
Monday, December 17 2012 @ 02:15 AM EST

More goodies. We have now the transcripts from the August trial between Apple and Samsung, August 6, 2012 and August 7, 2012. The latter is the day there was an argument about whether photos of phones had been tampered with, and you'll find that on pages 14 through 32. When I read it, I see it as a microcosm of what didn't go right in this trial.

Jump To Comments

August 6th:

The witnesses on the stand on August 6 were Justin Denison, identified by the PDF on page 13 as having been called to the stand by Apple as an adverse witness, being a Samsung representative. Here's what adverse witness means, so you'll understand what come across as rather hostile questioning by Apple's lawyer, William Lee, on the day before. You are allowed to examine someone on the stand by different rules if he or she is designated as an adverse witness. For example, you can ask leading questions, so if you see examples of that, it's not breaking any rules.

Denison was asked questions this day by John Quinn of Quinn Emanuel for Samsung, then recross-examined by William Lee for Apple, and then redirect by Mr. Quinn. Mr. Denison was continuing his testimony from the day before. On page 236 of that day's PDF, he is identified as Samsung's Chief Strategy Officer, working out of Samsung Telecommunication America's Texas headquarters, the Samsung entity that sells mobile phones and tablets in the US. There is a parent, Samsung Electronics America, located in New Jersey, and then there is the South Korean uber-parent, Samsung Electronics Corporation. He explains all the entities on page 237 of that day's transcript with a few more details about four California divisions on page 42 of day 4's transcript [PDF].

He was deposed in September of 2011 as the company representative for Samsung, all three branches, and so if you see references to that, you'll understand. That means he was the 30(b)(6) witness, if you recall what that means from earlier coverage. If not, here's what that is, essentially a representative of the company presumed to have taken the time to know about the issues at play in the litigation and able to testify about them. As the article points out, that can be a huge challenge in the digital age.

One interesting point from Mr. Denison's testimony is that on page 39 of the PDF he says that around 25 or 26% of Apple's iPhone is actually supplied from Samsung. Specifically, Samsung supplied the applications processor, which he describes as being like the main processor of your computer, the CPU, or the brain. Later, Apple's Mr. Lee brings out that it is Apple that provides the design parameters , however. That's on page 50.

And another interesting point is that he describes, in the context of the description by a Samsung executive of the difference between the iPhone and Samsung's then-products as being like heaven and hell, that the company DNA is to speak with such hyperbole, to reflect a humble and self-critical attitude so as to create a sense of urgency "to really drive hard work and change and innovation so that it never, you know, rests on its laurel and becomes complacent, let's say." That's on page 40. But the funny part is, and this is the first I've seen it, is the executive specified the Samsung Omnia, and Quinn brings out on page 67 that the operating system on the Omnia was Windows, not Android. I know. Funny.

Then on page 42, Denison is asked if there are features that Samsung had introduced before Apple, and he lists voice recognition, advanced screen technology, super amoled, "the first cloud-based music -- or cloud-based video service in the U.S." He is asked if Samsung was "outraged" when Apple later did the same things or similar things, and he says no. Quinn then asks him this question:

Do you see a difference between copying things that no one owns or can own and copying things that are actually, you know, proprietary, that belong to other people?
His answer is that he sees a big difference. Quinn then tries to ask if anyone owns the rights to "black, rectangular devices with rounded corners and the screen's on the top". And Apple's Mr. Lee leaps to his feet and objects, and the objection is sustained. But that leads us to the real question in this trial -- not just whether anyone owns it but whether anyone *should* be allowed to own it.

Then next it was Peter Bressler on the stand, with Rachel Krevans of Morrison & Foerster handling direct examination for Apple, and Charles Verhoeven of Quinn Emanuel doing cross examination for Samsung. This is still Apple putting on its case. Bressler is an industrial designer who owns about 70 patents, half of them design patents. He's here as an Apple expert witness. And his testimony is that some Samsung phones and two tablets infringe Apple's design patents. (The jury later didn't agree with him in all particulars, but that's his testimony. As he said, users view things differently than experts.)

August 7:

The next day, August 7, Mr. Bressler took the stand again for redirect examination by Rachel Krevans of Morrison & Foerster for Apple and then recross by Charles Verhoeven of Quinn Emanuel for Samsung and then further redirect by Ms. Krevans.

But before that happens, we see the issue about the graphics presented by Apple not matching the phones. It's complicated by an earlier ruling by the magistrate judge, the Hon. Paul Grewal, that Samsung couldn't use certain evidence to cross examine Apple's witnesses because he ruled Samsung was late providing source code. Here's how that goes, beginning in the context of source code from Android that Samsung wants to use to impeach an upcoming Apple expert, Dr. Balakrishnan, and if it all doesn't sound fair to you, all I can say is it doesn't sound fair to me either:

THE COURT: All right. Let's discuss the things that Samsung just filed. Let's talk about the Android source code. I still don't see why that's relevant for anything other than design around, which has been excluded. so if you could explain?

MR. JOHNSON:Your Honor, yes. This is Kevin Johnson. Just briefly, it is simply there for impeachment because Dr. Balakrishnan, as put in his exhibit binder that they intend to use on direct, px 31, which is source code for some of the phones. And I don't know what he's going to say about them. I think I have an idea. It's simply there to the extent that he starts to sever off the infringement theory, it's there impeach him. I don't intend to refer to it. It doesn't have any design arounds that were weren't disclosed or prohibited by Judge Grewal.

THE COURT: But what's the impeachment, you don't know the different versions of Android, therefore, you don't know that certain versions don't do that and certain versions do.

MR. JOHNSON: One of the real issues in this case is you may have one phone, like the Captivate, which runs different versions of Android on it. And he's done the analysis for one version of Android. I'm not talking about the design around.

THE COURT: Why do the different versions matter. Some of them don't practice the '381 and some do, right? So that --

MR. JOHNSON: That's the point.

THE COURT: I find that to be the design around issue. That's why I'm having a little bit of difficulty understanding developments.

MR. JOHNSON: It's not the blue glow. It's not any of the design arounds. These products operated in a certain way before -- in earlier versions of Android. For example, they don't bounce at all. They do a hard stop.

THE COURT: I know. But the jury is going to have the actual phones in the jury room. They can see what bounces.

Let me interrupt here to point out that the jury in real life didn't check anything like that, from what they said to the media, and judging by the speed with which they ruled, one wonders how they'd even have time to do so. So, to me, it matters very much whether or not Samsung could point all this out to the jury itself instead of leaving it to them to notice or not.

Let's continue:

MR. JOHNSON: That's part of the issue. They're going to have one phone that has one version of Android. In different instances, there are different versions of Android that exhibit different behavior and some of it doesn't do what Dr. Balakrishnan says. It has nothing to do with the design around.

So we're entitled to bring out the fact his standpoint, he didn't put in the -- he didn't do the requisite analysis to that each version of these Android based that from requisite establish phones operate the same way.

THE COURT: Well, we still run into the same issue that Judge Grewal raised, that since you didn't produce all the source code, then it's not fair to then cross these experts when they had an incomplete production of source code that was untimely and then to say, but you didn't look at all of it. Why didn't they look at all of it because you didn't produce all of it, even though there was an order.

MR. JOHNSON: He says he doesn't need the source code. Let's step back. He didn't need the source code to establish infringement.

THE COURT: So then it's even more, why is it relevant, if he's saying you can look at it and you can see if it bounces back by looking at the device, I think it's even more --

MR. JOHNSON: Because he hasn't done it for the different versions -- forget about the source code for a second. He hasn't established that the phones, that the version of source code, the 2.0 or 2.1 or 2.3 of the Captivate infringes. He may have established that the 2.3 does, but he didn't do the analysis on any of the other phones that operate differently.

And I'm not talking about the source code. I'm talking about the actual phone. He says he doesn't need the source code to establish infringement. He can simply look at it and if it bounces, it bounces.

THE COURT: Then why haven't you sought to introduce the difference versions of the products then.

MR. JOHNSON: We have.

Groklaw wasn't covering this litigation when all that happened with the magistrate, so I have no opinion about his order, as to whether it was justified. But what is clear is that Samsung entered the trial with one hand tied behind its back by that order. Here's the part about the graphics, as Mr. Johnson continues:
MR. JOHNSON: We have. That takes me to a different point, Your Honor. Yesterday we saw some issues on the stand with some of the witnesses testifying about the home screen versus the application screen, and it became apparent, when a joint exhibit was put in front of the witness, which the joint exhibit which has remained in apple's custody, the parties have split up the exhibit and Apple takes home Samsung products that are joint exhibits, that there's a difference between the joint exhibit that was put in front of the witness and the exhibit -- and basically the phones as they appear out of the box. And I just want to show Your Honor --

THE COURT: Are you talking about 2019,

MR. JOHNSON: If we can put up --

THE COURT: Hold it. Let's do one at a time because otherwise I'm going to get confused. What does Apple want to say on the Android source code? Anything?

MR. JACOBS: I don't think they've answered the court's question. The issue here is whether -- whether the source code that they have produced and intend to use in cross-examining Dr. Balakrishnan is within the scope of Judge Grewal's order allowing them to do that kind of -- to use any kind of source code for any kind of purpose, and I still don't think they've answered that question. What they've said is that he relies on 078 four versions of source code but is accusing 21 products. That's exactly Your Honor's point.

He will say that he reviewed all of the source code that Samsung produced, and he will testify to the court, and he will testify to the source code analysis of the source code that Samsung produced, and he will say that as between those versions that they produced, nothing impacted his infringement analysis. it was all materially the same. So they haven't answered the question, why is this source code being used to cross-examine Dr. Balakrishnan?

MR. JOHNSON: And we have a difference of opinion in that respect. The source code, even the source code that Dr. Balakrishnan relies upon, PX 31, exhibits non-infringement behavior and it's not the design around. It's the hold still. And they know about this issue. It's a non-infringement theory.

THE COURT: Well, you can cross him on that.

MR. JOHNSON: And I intend to cross him on that.

THE COURT: Absolutely. I expect you to.

MR. JOHNSON: From my standpoint, he still hasn't done the proper analysis of establishing that each version of the phone, taking the Captivate as an example, infringes.

Now, he's going to get up there and say that he thinks all of them operate the same way, and I should be entitled to cross him on the fact that it doesn't, and it has nothing to do with the fact that there's a design around for blue glow or anything else. It's not that point. It's the fact that some of the earlier --

THE COURT: Are all of -- go ahead. These are earlier products source code or subsequent?

MR. JOHNSON: No. They're -- sometimes it depends on the version. Sometimes it's earlier. Sometimes it's subsequent. It was all produced by December 30th. I don't intend on asking him anything other than --

THE COURT: No, it was not produced before December 30th. That is factually incorrect. You produced some before December 30th, but you did not produce all.

MR. JOHNSON: The source code that I intend to ask him about was produced before December 30th.

THE COURT: My ruling is not going to change on that. It's overruled.

MR. JACOBS: The same means sustained?


MR. JACOBS: You're sustaining the objection. Correct? I think you just said --

THE COURT: No. Samsung objects to plaintiff's Demonstrative 27 on the basis that the phones allegedly infringe the '381 without specifying which version of Android phones that are used. I don't know what exhibit you're referring to.

MR. JACOBS: I'm sorry. Thank you, Your Honor.....

MR. JOHNSON: Let me show you what's going on. If we could put up 3921. What we have here, Your Honor, is an image from Apple's opening statement slide A, which is the iPhone and it shows the icon layout.

And what we have in the middle is joint exhibit 1034. And we went over last night, after there was some issues about the joint exhibits and what was -- what we were seeing on the stand, and we took some photographs of the home screen just to compare. And we noticed differences between JX 1034, which has been in Apple's possession, and --

THE COURT: And what is JX 1034? Is that the actual phone? Or is that the photo of the home screen?

MR. JOHNSON: It's the actual -- it's a photo of the actual phone that was taken last night.


MR. JOHNSON: And what we see on the right-hand side is an EPIC 4G that comes right out of the box, and I've got it right here. The seal was broken and taken out. And what we see is there are differences between the home screens, and we see that the JX 1034, the images, the icons are different from what comes out -- as the product comes right out of the box.

And you'll see on the left-hand side the iPhone, the images obviously have three rows and have this one dangling down below of settings, and then it says phone, and you see here it says phone and you see here it says mail on the iphone, messaging over on JX 1034, Safari, when is the web browser.

THE COURT: So, wait. Are you saying that JX 1034 is a photo of the EPIC 4G Touch?

MR. JOHNSON: Yes, I am, and it's the joint exhibit that Apple's kept, and I don't know why there are differences. We don't know why there are differences. but there are differences between what's? JX 1034 and --

THE COURT: Well, what's the date of manufacture and the date of release of these two? There must be multiple versions and multiple releases. Why don't we just do a comparison.

MR. JOHNSON: We can.


MR. JOHNSON: We can do that. But the point is there are differences, and we'd like to understand what those differences are and why there are differences, because they're not how we're seeing them as they come out of the box, and the jury's entitled to see them as they come out of the box because the layout of the image and the icons here is obviously very important, and that's the issue --

THE COURT: So what's your allegation? That Apple somehow changed the home screen on the joint exhibit Epic 4G Touch?

MR. JOHNSON: We'd like you to ask Apple's counsel whether anything was done --

THE COURT: All right. Has there been any tampering with any of the joint exhibit phones?

MR. JACOBS: No, Your Honor. We have being quite rigorous about this. I would note, just to begin with, that there's a -- there's a, I'm going to change the fruit, there's a pear-and-an-apricot comparison going on here. on the right, you're looking at an Epic 4G Touch out of the box, I assume the latest shipment of it without the Google search tool on the top. And in the middle, looking at JX 1034, there's the model search tool. So that's a different --

MR. JOHNSON: This has the Google search tool.

THE COURT: So why did you remove the Google search screen from the home screen if he wanted me to do a comparison of the two home screens?

MR. JOHNSON: It isn't removed.

THE COURT: But why isn't it in your photo out of the box? Why isn't box on yours out of the box? I mean, you're telling me it is but you didn't capture it in your photo?

MR. JOHNSON: This was done as we were walking over here, Your Honor, and I brought the phone. If you look at the phone --

THE COURT: Why don't slightly different your home screen not show the Google search box if you're telling me that the home screen was a Google search box.

MR. JOHNSON: What I'm saying is it does have a Google search box on the phone out of the box. And I'm showing you -- if you see down b[e]low, there are several pages here. So what was captured was one page. and I'm happy to hand Your Honor the phone to see it --

THE COURT: Okay, you know what? Why does your version not include a Google search box on the top if you're telling me that that very Epic 4G Touch out of the box has a Google search box on the top on the home screen?

MR. JOHNSON: I'm telling you --

THE COURT: Why doesn't that photo have that?

MR. JOHNSON: Because this is, this is the one that they took, Your Honor, and that's, that's the reason, and that's why I brought the phone.

THE COURT: And so you're saying Apple tampered because on Sunday we took a photo of this at 10:35 in the morning on August 5th, and we didn't happen to take one when it's got the Google search box on the top.

MR. JOHNSON: Because, Your Honor, when we went over there last night and took a photo, this is what they captured. This captured this one. Mr. Patel is here. He was involved in the --

THE COURT: Okay. Let me see your Epic 4G Touch out of the box. Does it have the Google search box?

MR. JOHNSON: Yes, and it's still different. That's the point.

MR. JACOBS: Let me point out one other visual cue to what might be going on here. If you look at JX 1034, you'll see that in the -- there must be a term for this, the dots that show you which screen you're on, in JX 1034, the one position is highlighted, so we're in the one position on the screen. In the Epic 4G such slide on the right on SDX 3921.001, we're looking at a single highlight dot.

MR. JOHNSON: In no situation when you move to any of those pages will you find a page that looks like what's on JX 1034, and that's my point. The Google search bar can be moved from one screen to the other. as any of these icons can, and all we were asking was that Your Honor -- if they -- I guess the question is, are they willing to represent that they don't move any of the icons on any of the joint exhibits, because that's, that's the issue.

When we compare it to what comes out of the box, it looks different from what's on the joint exhibit.

THE COURT: Okay. Put this in the first -- I mean, all right. Give me the two boxes. Give me the two boxes. I want to look at the SKU number. I want to look at the numbers. I want to see the release dates. I want to see the manufacture dates because this is sounding a little bit absurd to me.

I mean, how many versions and revisions get produced of these phones? Give me a break. You yourself tell me that there are multiple versions that go on with the phones, that there are earlier versions, later versions, you probably have application engineers that are making little knits constantly, fixing bugs constantly. So to say that -- anyway.

MR. JOHNSON: We'd like to get together with Apple and figure out which are the joint exhibits that go to the jury.

THE COURT: I mean, your photo is misleading. You said the Google internet search box is on the top of the phone that you have, the Epic 4G Touch out of the box, and you just chose to take a picture without it on Sunday before this issue even came up. Right? I don't know what you're talking about. You said we found out that they were tampering with these things yesterday and we took a picture yesterday. That photo was taken on sunday, August 5th, yesterday was Monday, August 6th.

So I don't buy your story that you thought that Apple was tampering yesterday and you had to take this photo out of the box. That was taken on Sunday, the day before yesterday.

MR. JOHNSON: Your Honor --

THE COURT: Anyway.

MR. JOHNSON: At the end of don't have a phone that has this icon in JX 1034.

THE COURT: Well, I open up yours and I don't see what you have either. so you're telling me you took that photo yesterday after you found out that there was tampering by Apple of these joint exhibits?

Are you telling me that where it says Sunday, August 5th, at 1035 A.M. is false on the phone, that that time is wrong and that date is wrong?

MR. JOHNSON: I'm told the phone we have on the right is a soft photo of this phone.

THE COURT: And it was taken when, Sunday or Monday?

MR. JOHNSON: It was taken on Sunday.

THE COURT: So why did you represent to me that this was taken yesterday out of the box because you were so concerned that there has been tampering with the home screens on the joint exhibits, because that's not true.

MR. JOHNSON: Your Honor, what I said was the one in the middle was taken yesterday, last night, out of the -- and that's the joint exhibit.

THE COURT: No. You said you took it out of the box, and this is what it looks like.

MR. JOHNSON: Then I'm sorry, I misspoke. I said 1034 was taken last night after we inspected the joint exhibits.

THE COURT: So what is your recommendation? MR. JOHNSON: Our recommendation is that we look at all the joint exhibits or the other side and figure out what are the joint exhibits that actually go into the jury box, because that's -- as Your Honor points out, that's what they're going to be comparing.

THE COURT: I thought that you all did. The whole point of having the joint exhibits was that you all would go through them and agree that they're joint and agree upon them.

MR. JOHNSON: We didn't realize that there were going to be differences, differences in the home screens between the phones.

THE COURT: Okay. Who, who created that one that had 1019 on it yesterday that wasn't an official exhibit? Who created that one? Who put that 1019 sticker on the side.

MR. JACOBS: This is the one with the little sticker.

MR. JOHNSON: I think, again, that was on our side. That was -- what we thought the same exact phone. That's why we got to this point because someone on our side has the same phone, it's handed to the witness and it looks different from what the joint exhibit is, and that's what raised the issue in our minds. COURT: So how many of the exhibits duplicating with your own copies of the exhibits?

JOHNSON: Well, throughout the case --

COURT: Was 1019 The only one or were ones that you are going through you were working on?

MR. JOHNSON: No, I believe they're all the joint exhibits, except for that one.

THE COURT: Except for 1019.

MR. JACOBS: Your Honor, It is a symmetry in information here, which Samsung knows when it is sending out patch and updates to the phones. There's been no disclosure to us along the way of those patches and changes. You do have to try to make sure that phones are not updated in order to avoid the patches and changes. BUt we have done everything we can to preserve the integrity of the exhibits we've used in the case, because obviously, as Your Honor has noted, the sheer number of phones itself has been a huge challenge for us in managing this case, and now we know that that's Samsung's business strategy. So I think all the, all the presumptions tilt our way on this issue.

THE COURT: Well, I don't see what the request is for today.

MR. JOHNSON: The request --

THE COURT: What's the request for today.

MR. JOHNSON: The request is at this point the parties get together, figure out what the actual phones should be that go back into the jury room ultimately so that there --

THE COURT: Let me ask you something. If you agreed to a joint exhibit, why are you introducing your own exhibit? And I don't even know if it's the same phone, right? I don't know what reversions it is. I don't know what bug fixes are in that version versus what you agreed to be a joint exhibit.

MR. JOHNSON: When we agreed to an Epic 4G as being a joint exhibit, there wasn't a belief on our side that they were different, and it was only when we got into the testimony from the layout of the icons that we noticed that there are differences, and that begged the question on our side, why does this one look -- why is this late outlook like this and not like this? That was the issue for us.

MR. JACOBS: Your Honor, there have been innumerable inspections of these phones. We've gotten e-mail after e-mail after e-mail, we'll collect them and provide them to you, where Samsung representatives came over and inspected the joint exhibits. We have made them available at a moment's notice on their request, and that is the set of the joint exhibits. This was all done in advance and to have the sudden discovery, maybe they have come up now with an Epic 4G Touch that they've patched and now they're trying to --

MR. JOHNSON: There's no patch. There's no patch. There are differences here that are important.

THE COURT: Where is that 1019 that you introduced that was not a joint exhibit? Where is it?

MR. BEDECARRE: We'll get it, Your Honor. Just so the record is clear, Ms. Khan was sitting there to hand demonstratives either to the jury or to the witness. And she didn't know that all the phones were on the stand already. So she just had that 1019 one that's our copy, the parties each have lots of copies of these phones, she just handed the wrong one to the witness. That's all. It wasn't trying to submit a different exhibit. It was merely to hand him one to look at. And she didn't realize that he already had the one with the exhibit sticker on it.

THE COURT: All right. From now on, with any phone, it needs to be shown to both sides and I need to have an agreement that that is the actual joint exhibit that was agreed to. Okay? I don't even think Ms. Khan needs to sit there. Why does she need to sit there?

MR. BEDECARRE: So she didn't have to go all the way across the front of the jury box.

THE COURT: I think they need to show the other side, just confirm. since we've had this happen now, it's important to have both sides confirm that whatever is being shown to the witness or to the jury is the joint exhibit that both parties have stipulated to.

MR. BEDECARRE: Sure, Your Honor.

THE COURT: Okay. Because i'm not going to have this happen again.

MR. BEDECARRE: We'll make sure. THE COURT: So I guess I'm not clear. what is it that you're asking for, Mr. Johnson? You don't want Ms. Kare to be able to take about icons today? Is that it?

MR. JOHNSON: No, i'm not asking that.


MR. JOHNSON: I'm asking simply that Your Honor be -- Your Honor ask the parties to go through and sit down and establish -- look at the joint exhibits and agree upon what goes into the jury box, because I think there may be disagreement. 1034 reflects a disagreement and what they're --

THE COURT: We will do that, but it will be charged to your trial time, because you stipulated to these exhibits in advance. Okay. It will be charged to your trial time.

MR. JOHNSON: Understood.

THE COURT: Take as much time as you want, but it's getting deducted from your 25 hours. I really don't think that this is -- I don't find this to be a good faith objection. If you have stipulated to these exhibits in advance, and you now to come in and say, no, no, hold, hold it, hold it, I want to redo everything that's done, so what are you saying now, we're going to have to redo everything that we've done with the witnesses because that doesn't happen to be the exact version of the phone? Are you now saying we need to redo all of that testimony?

MR. JOHNSON: I'm not saying that, your honor. what i'm saying --

THE COURT: If you at the end of the trial suddenly have objections to joint exhibits that have gone to the jury and that the jury has already been shown at your request and the witnesses have already seen, so then what's the result?

MR. JOHNSON: The result ultimately should be what goes into the jury box is reflective of the phones as they come out of the box. That's all i care about.

MR. JACOBS: Your Honor, this is exactly the problem. We can't have a redo of the joint exhibits at this stage. They're in evidence.

THE COURT: I find it not credible that Apple tampered with these joints. Those are joint exhibits that both sides stipulated to in advance.

MR. JACOBS: Your Honor, we're confident that the record will support a verdict if the joint exhibits that have already been stipulated to remain the joint exhibits. To now do a redo of this in the middle of trial would create the potential for serious error.

MR. JOHNSON: Your Honor, if Apple is willing to represent that there's been no manipulation of any of the icons in any of the joint exhibits, we're fine.

MR. JACOBS: Absolutely, Your Honor.

THE COURT: Has there been any manipulation by anyone on your team, anyone, paralegal --

MR. JACOBS: There has been no manipulation. There has been use. There has been use because, of course, we have turned them on because they've been imaged and exercised and tested and so there's been use. But there's been no manipulation designed to create any appearance of the phones. We've been -- we've been rigorous about that in maintaining the integrity of the phones.

THE COURT: Has anyone moved any icons from any of these phones? MR. JACOBS: No.

THE COURT: All right. Well, I'm satisfied with that. If you have a specific objection, you can raise it at the time.

Isn't that bizarre? There are important differences and no one can explain it, and they just move on, with no one knowing the why of it. This is, you'll recall, a trial not only about patents but also about design patents and trade dress. So how a phone looks is precisely what is at issue. When the media reported this event, I wrote that I was sure that Michael Jacobs would never tamper with any evidence, and the judge felt that way too. But I suspect Jacobs hit on the explanation without perhaps realizing it. He mentions that while they didn't tamper with anything, they did use the phones. And what no one there realized is that when you first turn on the phone, it connects to the Internet, and changes are at that time possible, probable, maybe certain.

But what comes across to me is that by the time of the trial, the judge does seem to have a bit of a bug up her nose about Samsung or at least their legal team. You see that where she says to Mr. Johnson things like, Is this what you are saying? That Apple tampered? And he patiently would try to explain that he hadn't said that. He hadn't. That was the judge extrapolating, and maybe correctly and maybe not, but he had not said that. He specifically said he didn't know what had happened.

I note too that someone, maybe one of Apple's Samsung's paralegals [Updated: I checked after I heard from someone in the courtroom that day], apparently was handing exhibits up during the trial, and evidently there was a mistake in the photo presented as the exhibit. The judge properly rules that they need to fix that so it doesn't happen ever again. Her concern is that she doesn't want to have to redo what they've already done. That's a natural concern, but one that Samsung wasn't asking for. What it asked for was to sit down with Apple and go over the joint exhibits. The judge said they could do that, but it would count against Samsung's time at trial, which is a kind of punishment, which strikes me as completely odd, in that the differences between the exhibit photo and the phone out of the box were real, and if Apple's handler of the exhibits handed up the wrong photo, how is that Samsung's problem? [Updated: Since I now know that it was a Samsung paralegal, not an Apple paralegal, that last sentence makes no sense, and in fact it makes the judge's order at least logical.]

In short, there is an underlying thread in this picture, but I don't know if it's because the judge saw earlier issues with the lawyers and had formed a negative impression of their forthrightness or what the problem is. But there was one by this time, I'd say. And you can see how Mr. Jacobs used her attitude and reinforced it with his contributions. When she said that there must be many versions and releases, as a possible explanation for the differences, he picks up that theme and runs with it, even though in truth, if they showed the wrong version, that would be a serious matter in a trial where specific versions of phones are at issue.

This all happened before the jury came in, so it's not anything that would influence them, in case you are worried about that. But if I notice that the judge had a little attitude, I wonder if it escaped their notice too.

Next up was Apple's icon designer Susan Kare, with Ms. Krevans for Apple and Mr. Verhoeven for Samsung. The next witness was Russell Winer, and this time it was Michael A. Jacobs of Morrison & Foerster handling direct examination for Apple and Mr. Verhoeven for Samsung. And the final witness that day was Hal Poret, with Mr. Jacobs handling direct examination and William C. Price of Quinn Emanuel doing the cross examination for Samsung.

You can find all this listed on page 3 of the PDF, by the way, followed by a page where you can find the testimony of each one.

Update: I have now the transcript for the next time they are all in court, August 10, which I'll share details about with you in the next article or so, but as I read it, I see that the judge had been thinking about the exhibits issue, and on further reflection, she decided the following, to her credit:

THE COURT: Let's talk about the stickers on the phones. What I'd like to do is to have -- once the exhibits are admitted in evidence is I'd like the court to take control of them and have us have them overnight, and if either side needs them, you're going to have to talk to -- call our chambers to get them.

Any objection to that? I think that just may -- I don't want this to be a continuing issue.

Neither side objects, and so that was the change made to protect the integrity of the exhibits, at least going forward.


Apple v. Samsung Trial Transcripts - Day 4 and 5 (Aug 6 & 7, the Exhibit Tampering Issue) ~pj Updated | 148 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Authored by: Anonymous on Monday, December 17 2012 @ 02:38 AM EST
"Quinn then tries to ask if anyone owns the rights to "black,
rectangular devices with rounded corners and the screen's on the top". And
Apple's Mr. Lee leaps to his feet and objects, and the objection is

Pretty much court is granting apple a patent on that design which could apply to
about every tablet on the market.

[ Reply to This | # ]

Corrections Thread
Authored by: bugstomper on Monday, December 17 2012 @ 03:09 AM EST
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

[ Reply to This | # ]

Off Topic threads
Authored by: bugstomper on Monday, December 17 2012 @ 03:10 AM EST
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 Monday, December 17 2012 @ 03:11 AM EST
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

Hint: Use Preview to check that your links are ok. Avoid a Geeklog
"feature" that posts long links broken by inserting line breaks in the
URL at punctuation points such as
<a href="

[ Reply to This | # ]

Comes transcripts here
Authored by: bugstomper on Monday, December 17 2012 @ 03:12 AM EST
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 | # ]

No accusation of tampering?
Authored by: Anonymous on Monday, December 17 2012 @ 04:27 AM EST
Of course he can't state that out flat. He is not allowed to come to conclusions. Sort of reminds me of "To Kill a Mockingbird" again, but then that is the gold standard of lawyering fairy tales.

"She says she asked you to bust up a chiffarobe, is that right?"

"No suh, it ain't."

"Then you say she's lying, boy?"

Atticus was on his feet, but Tom Robinson didn't need him. "I don't say she's lyin', Mr. Gilmer, I say she's mistaken in her mind."

To the next ten questions, as Mr. Gilmer reviewed Mayella's version of events, the witness's steady answer was that she was mistaken in her mind.

[ Reply to This | # ]

The bias appears obvious
Authored by: Anonymous on Monday, December 17 2012 @ 04:42 AM EST
Coming in cold and reading that text, there does seem some very odd behavior
from the judge. Samsung seem to be 'lets work out what's happened here' and
when the Apple side, though at first appearing amiable, when they realise that
they're going to be outed, clam up and turn on the outrage. VERY obvious to the
most casual reader.

And it does appear that Samsung were being punished for raising the issue of
wanting to make sure everything is done right. Good job I'm not a lawyer as I'd
be all 'Apple have photoshopped evidence before to make it appear the devices
look closer than they really are, I don't put it beneath them to tweak a device
in this case either'

Something that surely could have been easily and quickly proved if the judge had
asked to have an unopened device turned on in front of her, then ask 'why is
YOUR version different Apple?' Of course they'd spin it as different versions,
but that too gets back to the Samsung lawyers.

It's just mindnumbing how the Judge isn't following common sense or any amount
of reasonable behaviour here. Due diligence would surely ask 'well, 2 lawyers
are saying different things here, and it's kinda important, which one is lying
to me?' and after evidence tampering (again) in that court room was shown,
decisions could be made.

Makes one wonder if she's picking up on the cues from the Apple lawyers

[ Reply to This | # ]

Koh creates straw man, attacks same
Authored by: BJ on Monday, December 17 2012 @ 06:36 AM EST
'Apple Tampering' is a straw man. Koh should chill it.


[ Reply to This | # ]

samsung earlier phones were different
Authored by: Anonymous on Monday, December 17 2012 @ 06:46 AM EST
So if earlier phones by samsung did not infringe and were bought by customers,
then this proves the feature was not what made the users buy the phone, no?

[ Reply to This | # ]

Home Screen vs. App Launch Tray
Authored by: Anonymous on Monday, December 17 2012 @ 10:44 AM EST
I believe Mr. Johnson's argument over the exhibit is based
on the comparison of Apple's start screen (which shows the
grid of icons) and one of the pages in Android that shows
the similar grid of icons (which is not the start screen).

It's a fair comparison, but perhaps misleading or
suggestive. If it is intended to argue Apple's
patent on the icon arrangement with rounded corner icons,
than it's a fair comparison. If it's intended to argue
Apple's device style patents (full face glass with rounded
corners, silver bezel edge, etc) than the icon graphics are

The fear by Samsung (and rightly so) is that staging the
graphic to show a similar screen display can be highly
suggestive of the general feel of copying, even if the minor
patent details (where you can actually find minor details
in Apple's patents) are overlooked by the jury. Try to show
the true home screens on both devices will show there are
differences, regardless of whether or not the less than
specific patents are infringed.

[ Reply to This | # ]

Apple v. Samsung Trial Transcripts - Day 4 and 5 (Aug 6 & 7, the Exhibit Tampering Issue) ~pj
Authored by: Tim on Monday, December 17 2012 @ 10:44 AM EST
We don't know what actually happened other than what we have seen reported - The judge, like all human beings, will have some unconscious biases, or may have seen some behaviour that raised her hackles (or, again, she might not); and was, perhaps, unconsciously looking for confirmatory behaviour to reinforce her opinion. As an example, some psychologists believe that in a job interview, the interviewer makes an unconscious decision about a candidate in the first minute or so, the rest of the interview tends to reinforce their initial prejudices.

On Groklaw we think we know who the good and bad guys are. It seems to me that the law allows (encourages?) conflation of Industrial design rights, copyright and patents. Some would consider that the design of a carbonated beverage container is the ultimate "intellectual property" (a horrible term), I think that this is Apple's position - But, because we tend to have an interest in technology, we might consider that an engineering patent has more value.

Unfortunately in a commercial environment the bottle design probably has a higher commercial value than engineering. "Brands" are now more important than products - You can buy a watch from your handbag manufacturer, the idea that the bag maker has no particular experience in making watches is almost irrelevant. The name seems to guarantee the status (and quality?) of the item. There are many examples of this:-

  • Gieves & Hawkes (Savile Row gentleman's tailoring) was originally founded in 1771, and made its reputation in bespoke and military tailoring, it is now owned by a Hong Kong conglomerate. The new owners also own Cerruti,, Kent & Curwen, Ferragamo, INTERMEZZO, and D’URBAN. Initially Gieves & Hawkes clothing was made out of the highest quality British wool, and tailored in their own premises (or for non-bespoke wear, at British cutters) - Now much of their product comes from Asia.
  • Rolex and Tudor are owned by the same watch company: "Montres Tudor SA has designed, manufactured and marketed Tudor brand watches since March 6, 1946. Rolex founder Hans Wildorf conceived of the Tudor Watch Company to create a product for authorized Rolex dealers to sell that offered the reliability and dependability of a Rolex, but at a lower price". (Wikipedia) Whether a Rolex watch is 'worth' 2 - 8 times the difference in price over a Tudor watch is something that an individual decides based on what is important to them. Whether a Swatch is better 'value' is another matter.
  • Do I think Apple are on the side of the angels? No, but I understand why they are doing this. Samsung was not, until recently, a brand you associated with quality 'phones - TVs maybe - Samsung are now thought of by many as equivalent to Apple...

    [ Reply to This | # ]

    Out of the box
    Authored by: Anonymous on Monday, December 17 2012 @ 01:15 PM EST
    When this came up during the trial I posted here that I hoped the jury
    would get sealed boxes from a retail store of each model in dispute
    so they could see each, fresh and clean. There were some models
    of Android phones (Samsung?) that had a fixed Google search bar,
    and the various home screens rotated below it, and some did not.

    There were models that had bounce, or came to a fixed stop, or
    the blue glow, and some were workarounds, and some just
    natural development of Android. The rules of the court require the
    jury to see the exhibits actually handled in the courtroom by
    the attorneys, but here attorneys and judge all could not agree
    on what it was they were handling or looking at. So it made sense
    to my non-legal mind that the jury should get fresh retail copies,
    exactly as J. Random Purchaser would get.

    But then this case wasn't about avoiding confusion for the purchaser,
    it was about gouging a competitor.

    [ Reply to This | # ]

    Posner For The Win
    Authored by: Anonymous on Monday, December 17 2012 @ 02:11 PM EST
    When she said that there must be many versions and releases, as a possible explanation for the differences, he picks up that theme and runs with it, even though in truth, if they showed the wrong version, that would be a serious matter in a trial where specific versions of phones are at issue.
    When she said that there must be many versions and releases, she went on to display her lack of skill and experience in allowing this source of confusion to continue. Judge Posner would have said, "Three models, three patents, choose wisely."

    [ Reply to This | # ]

    begs the question
    Authored by: Anonymous on Monday, December 17 2012 @ 09:47 PM EST
    Of why there was a trial. ;)

    If the judge was confused about how a phone straight out of
    the box looked different than another of the same model and
    concluded it was probably because of different versions and
    models, then how could said phone model be in violation of a
    static design / trade dress? How could one phone that looked
    different than another within the model series contribute to
    damages? How could a manufacturer be willful in its
    infringement when arguments arise and that manufacturer
    changes the model so that those arguments don't apply? How
    could one trial assess infringement on 25 different models
    times dozens of patches and versions?

    [ Reply to This | # ]

    Apple v. Samsung Trial Transcripts - Day 4 and 5 (Aug 6 & 7, the Exhibit Tampering Issue) ~pj Updated
    Authored by: Anonymous on Monday, December 17 2012 @ 11:52 PM EST
    "The brief generally rejects the idea that software per se represents
    patentable subject matter but is favorable toward the patenting of computerized
    applications that either improve computer performance, ..."

    From Patently O. I have not yet had a chance to read the brief, so I do not know
    what the brief's language is. If there is anything close to the quote though,
    then aside from frivolous applications like games, "fart" programs,
    screensavers most applications would qualify because they in some way or another
    improve performance.

    Mouse the Lucky Dog

    [ Reply to This | # ]

    Things I wish they had said about utility and design patents
    Authored by: Ian Al on Wednesday, December 19 2012 @ 04:27 AM EST
    The jury instructions should have said that none of the asserted claims in the
    utility patents referred to the language used, the program structure, the
    processor used, the operating system used nor the display management software

    For this reason, none of these aspects are relevant to proof of infringement. If
    infringement of the asserted claims have not been proven without these aspects,
    then infringement has not been proven. It is the patent which is being asserted
    and not the technical details of products sold by the patent owner.

    For the same reason, a design patent is for the patented design. Comparison of
    accused products with products sold by the patent owner are irrelevant. It is
    only trade dress issues that may be informed by such comparisons.

    The utility patents issues, the design patents issues and the trade dress issues
    are separate and each must be considered for each accused device in isolation to
    the rest.

    When it came to expert reports, no expert can hope to prove any infringement of
    claims by reviewing the source code of such complex operating systems. Any
    review of the software is limited to an interpretation of the comments text.
    Since the comments text is insufficient for one skilled in the software arts to
    write the operating system, neither is it sufficient to prove infringement of
    the functions in the asserted claims because they are not software functions.

    Further, since the asserted claims do not claim software functions, any request
    for source code discovery is irrelevant to infringement and constitutes abuse of
    the discovery process.

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

    [ Reply to This | # ]

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