The Verge reports on another scuffle between the judge in Apple v. Samsung, the Hon. Lucy Koh, and the Samsung lawyers:
Things at Apple v. Samsung kicked off with a bang this morning, as Samsung accused Apple of tampering with the icon layout of one of its phones to look more like the iPhone. At issue is a photograph of the Epic Touch 4G that Apple presented which shows an icon layout that closely mirrors that of the iPhone. Samsung objected, saying that it noticed yesterday that the phone doesn't represent the state of the Epic 4G Touch out of the box. Samsung presented its own photo — which its attorneys said had been taken last night — which featured a different layout with a larger number of homescreens. I think the judge may have been mistaken about what has to be on that phone's home page, or she just has negative ideas about Samsung. Or maybe everyone is feeling too much stress. I have three photographs to show you from doing a simple search on the Web, three of that very phone with no Google Search box and one with it. Apparently it varies. Nobody is doctoring anything. It's just a lack of tech fu in this picture.
Judge Koh, whose temper has been growing increasingly short with both parties, took Samsung's legal team to task, actually questioning whether Samsung's photo was legitimate. She pointed out the Samsung's image didn't feature the Google search widget — something the company's attorneys said was present on the device out of the box. "Why does your homescreen not show the Google search box when you're telling me the phone has the Google search box," she asked, eventually demanding to just see the device in question herself. She then pointed out that Samsung's image featured yesterday's date — clearly indicating that the photo had not been taken on Sunday as alleged. Samsung's attorney eventually admitted he misspoke about the date.
Here are the photographs from the web showing that very phone with no Google Search box:
And here's the one with the Google Search box:
PhoneDog. If the Verge's account is accurate, the judge probably owes Samsung's lawyers a public apology for impugning their integrity in a public courtroom.
I'm sure, by the way, that Apple's lawyer, Michael Jacobs, would never doctor anything either, just because we watched him for years in the SCO v. Novell case, and he was totally honest and above-board at all times, even when it was not advantageous to him and his side. Unless there has since been some Faustian bargain, which I'd never believe without absolute proof, or someone else on the team did it, knowingly or inadvertantly, I think everybody just needs to calm down, Samsung, Apple and the judge.
Yes, the headline is a joke. I'm sure Judge Koh won't be reading Groklaw. But if she did, she'd make fewer technical mistakes, methinks. As for law firms, they need more technically knowledgeable people. Judges too. Seriously. And someone needs to think about what this all means -- who decides which icons go on the phone? Is it the mobile phone companies, by any chance? If so, I see implications. Legal implications. I mean, if the accusation by Apple is that Samsung's icons are infringing Apple's trade dress or trademarks because there are the same number and/or they are arranged the same way as Apple's on the iPhone, hence confusing customers, and if it isn't Samsung doing the arranging or the choosing, now what happens to that claim? I can see implications for any damages too, even if Samsung were found liable.
Maybe Samsung tried to tell her all this, but she was too hot about what she was thinking was the case that she cut them off. We'll find out when the transcript arrives in a few months. There is a Scripture that talks about being slow to get angry, and I think I see why that is really good advice. It helps you figure out the real picture before you fly off the handle about something that turns out not to even be so.
Update: Here's a YouTube video showing a techie at TechnoBuffalo unboxing a Sprint Samsung Epic 4G Touch (Galaxy S II). You'll see the way it looks before you do anything. No Google Search Box on the first home page you see. But stay with the video. You'll see it. And the Groklaw volunteer who found it and left the comment about this put it, the Google Search Box "comes up to home screen 5, which has a Google Search widget at the top of it. And then when you swipe over one screen to the main home screen (4), it looks exactly like the picture Samsung presented. Finally at 5:44 we see what Apple claims the home screen looks like." Mystery solved. Everybody needs to apologize to everybody else.
Update 2: Another video on YouTube by PhoneDog of an unboxing of a Galaxy S 4G (the kind with the slide-out Qwerty keyboard too), starting with an unopened box. The Google search box is right there, right out of the box on one of the home screens. If there is no Internet inside the courtroom, your results may vary if you unbox there, because if you can't get on the Internet, some things will work, but others will not, I'm told. What the lawyers can do to verify is get two phones. Unbox one, shooting video of it, where you have Wifi or 4G. Then go somewhere where there isn't any Internet availability, and unbox it, shooting video. You will see the difference. The iPhone is pretty much the same, but the Samsung look varies greatly.
Update 3: The best coverage of the day, to my taste, is the quirky style of Above the Law's Christopher Danzig's "Above the Law Goes to Trial - Dispatch from Apple v. Samsung: ":
Not going to lie, it got pretty boring. Judge Koh, at some point, offered jurors the opportunity to grab caffeinated drinks from the fridge, because she probably saw some eyelids drooping (one of the jurors looks like he’s 14, I swear to God. He was also wearing a Doors T-shirt). Many more goodies in his account. I wish he could go every day. He says Judge Koh is awesome to watch.
On cross-examination, Verhoeven employed the same strategy that he had with Bressler: look closely at the nitty-gritty aspects of the phones to see how different they really are. He spent time going through icons one by one, trying to force Kare to acknowledge they were different. He also highlighted the YouTube and maps icons on the iPhone, which are both Google products. Kare’s tone changed pretty quickly; her voice developed an edge to it. I wish I would’ve counted how many times she said, “I don’t know.”
In a flash of theatrics, which he repeated later in the day with an iPad, Verhoeven showed a Samsung phone on the video screen so everyone could watch the extensive intro where “Droid” and “Samsung” are flashed and beeped at the user repeatedly. He asked if anyone would be confused about which product they had after watching the intros. Ars Technica transcribed the conversation here.
Verhoeven’s calm intensity during cross examination was effective, and you could feel Kare deflating as questions continued. He ended by asking her how much Apple paid her to be in court. Answer: $550 per hour, and $80,000 total so far. Ouch.