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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!


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