Mr. McElhinny painted a compelling narrative for what happened in the case. He
didn't spend any time talking about Samsung's infringement as he will be
spending time on that in his rebuttal after Samsung's Charles Verhoeven has spoken.
And while we wait for more, here's ComputerWorld's Martyn Williams' account of Samsung's closing statement, presented by Charles Verhoeven of Quinn Emanuel:
Main points of his argument
1) Trust the documents
By trusting the documents, he referred to relying on Samsung's internal
documents of comparison and feature evaluation rather than testimony. For
the event chronology, he presented a compelling picture of how Samsung
reacted to the iPhone's launch: recognizing threat, declining sales,
deliberate process of evaluation and copying.
2) Put events into a chronology
3) You heard no defense from Samsung
Lastly he stated that "Samsung had disrespected this process from the
start. Apple provided two of it's most senior executives, Scott Forstall
and Phil Schiller. No Samsung executive was willing to travel here from
Korea. Instead of witnesses, they sent you lawyers."
When it came to the
issue of willful infringement, he picked out certain actions of Samsung:
"Think of the meeting with Google, think of blowing off any attempts to
negotiate a resolution and find that their infringement was willful." The
"Google" meeting referred to when Google first raised concerns about
Apple: This is my opportunity to remind you of the evidence you heard, why
you heard and to put it in to context.
Big pictures points:
1) Documents are the most valuable key to the truth-finding function.
Witnesses can be mistaken, in good or bad faith. Documents created for trial
can be misleading but historical documents are key
2) If you want to understand, put the evidence into a chronology.
- Steve Jobs started the iPhone project in 2003
- The years of work in the purple room
- Phil Schiller, enormous risks that Apple took
- Showed pre-2007 phones
- Apple demo'ed the iPhone Jan 2007
- Debuted on Time magazine, made invention of the year
- Most famous product in the world
- In 2007 start, Samsung started analyzing the impact of the iPhone
- Feasibility Review: Samsung refers to the iPhone as the most important
trend in the industry
- F Review: Easy & intuitive UI and beautiful design
- 2008, Samsung hired consulting company to assess impact of iPhone
- Page 20: Pundits tell us that the iPhone is a revolution..., quotes
David Pogue raving about the iPhone
- User reactions including "love" and "awe"
- Page 36: The iPhone wasn't just easy, "it's sexy to use"
- Page 31: "Screen-centric design has set the standard for touch"
- Shows phones from 2009 when Samsung was "fairly competing with the iPhone"
- After declining share, internal doc states JK Shin: "It's a crisis of
design" Feb 10, 2010, suggest that they "Make a phone like the iPhone"
- Google? document states that Google warned Samsung of copying but they
went ahead anyway
- JK Shin testified emotionally that the Samsung Galaxy effort was a 3-month design effort
- They did in 3 months something that took Apple years and with no risk.
- Direction for improvement "Insert effect of light for luxurious, softer
- Shows how GT-i9000 changed between development and release, copying the
- Result of Samsung's 3-month crash project was released as the Samsung
Galaxy in Jun 2010.
- Samsung's sales suddenly increase, so Samsung continued releasing iPhone
- Apple put Samsung on notice Aug 2010, calling foul on Samsung's actions.
- Samsung chose to gin up claims of their own, which is what led us down
this to the courthouse.
3) From the very beginning, Samsung has disrespected this process:
- Apple provided two of it's most senior executives, Scott Forstall and
- No Samsung was willing to travel here from Korea.
- Instead of witnesses, they sent you lawyers.
- Samsung had a chance to defend itself but instead they sent you lawyers.
- Jinyeun: never referred to Apple icons but here's a document of the Apple
human interface guidelines
- Jin Soo Kim: even though Google warned Samsung, that message never
reached Jin Soo Kim, so they continued using the designs. No told them to
stop or be careful.
1) Trust the documents
2) Put events into a chronology
3) You heard no defense from Samsung
We think you will conclude that they are more than similar to the designs.
D'677 design patent. You will have the opportunity to examine them one by
one and determine if the designs are similar.
They then went over a number of patents.
For the app screen, "This one is easy, just look at the pictures"
Apple: Non-obvious, I'll admit is a little tricky.
Comparison of Industrial Design Witnesses:
We brought an industrial designer, Samsung brought you an Electrical
He then talked about the chronology of prior art designs, referencing the
For the LG Prada, it was released after.
"It becomes why there wasn't any designer that was willing to come here and
testify that there existed a primary reference" - prior art for design
A real world check on what is obvious:
- Initial Skepticism
- Commercial Success
They knew a good thing when they saw it. They tried to compete with it.
When they failed, they started copying it.
Greatest number of customer returns was from people confused that they thought
it was the iPad2.
Over half of the consumers who recognize the Samsung.
We believe we've shown you ample real world evidence to demonstrate that
the Samsung design was confusing and therefore infringed on Apple's trade
The critical difference on dilution is timing.
We have to prove that they were famous before Samsung's product.
On bounceback, zoom / center and scroll / zoom patents:
Samsung again did not put up a non-infringement defense. Instead they
claimed they were invalid.
It is really hard to imagine holding the Diamond Touch in your hand and
making a phone call.
This is Samsung itself recognizing the novelty of Apple's inventions.
Samsung makes fun of our damages. Makes fun for $1B.
1) Samsung has 22.7M infringing devices between June 2010 and today.
2) Samsung's revenues of infringing products stands at $8.160B for sales in
the United States.
We're asking you to calculate how much Apple should receive of that $8.16B.
Samsung's Profits: $2.24B
Apple's Lost Profits: $489M
Reasonable Royalties: $21M
Congress awards the entire profit of the product, not just part of the
Samsung's "Indirect Cost" allocations should be disregarded:
- Produced key info at the last minute
- Nine different versions
- Even Samsung's export couldn't tie data to a reliable source
- Spreadsheet made up solely for this litigation
Once you've decided on Notice and deduction of profits. There's four
Apple's Notice period with no indirect costs: $2.4B
Mr. Musika conservatively estimated Apple's lost profits: $0.5B
Apple's Notice Period and all indirect costs: $1.1B
Samsung's Notice period with no indirect costs: $1.4B
Samsung's Notice Period and all indirect costs: $0.5B
Made a point that if you find in Apple's favour, the damage calculations
are available in Apple's claim for damages exhibit.
Think of the meeting with Google, think of blowing off any attempts to
negotiate a resolution and find that their infringement was willful.
It's now off to the jury. Being decided at the rate of $300M per juror.
Verhoeven made the closing statements for Samsung. He focused on the
evidence and picking holes in Apple's logic rather than appealing to
narrative like McElhinny. His presentation wasn't quite as smooth and fluid
as Apple. There were a number of notes to Verhoeven, this didn't happen at
all with McElhinny but then since he's going first, McElhinny was adapting
on the fly.
He firstly made a strong argument against the lack of deception in the
device stating the users didn't get confused. He made a big statement
shortly therafter: "It's seeking to block its most serious competitor from
even attending the game. Look out at the reporters. Why are they here?
They're here because if you go with Apple, it could change the nature of
competition in this country. Do you want a country full of conglomerates
armed with patent arsenals preventing competition?"
He went on: "Consumers deserve choice between products. Competition is what
built the country. It's not against the law to be inspired. It's not
against the law to do a feature comparison."
He then made an interesting
comparison to the relatively more mundane area of TVs: "Go in to Best Buy
and look at the TVs. They all look the same. Look at what happened: form
followed function." His argument here was that as technology developed
enough to allow large screens and faster processors, then naturally you'd
want to maximize the screen to be as large as possible. Therefore a design
with a large screen, minimal border and rounded edges naturally follows.
When it came to damages, he made the argument that Apple doesn't
deserve damages but if they did then it should be smaller: "We don't think
we have to pay any damages but we have to address the issue of damages as
this is our only chance. We have to take this opportunity that if you
disagree with us, we need to explain why Apple's damages numbers are
ridiculous. What does it take to make a damages claim of $2B? It takes
$1,750,000." Pointing to the damage model created by Apple's expert witness
He picked holes in the demonstrative evidence of infringement of the
bounceback, tap / zoom / center & scroll / zoom, arguing that the videos of
each device showing 5 phones to a screen wasn't sufficient. The alternative
of a detailed analysis of each and every one of the 24 phones would
probably take a month and send the jury (and audience) to the pits of
On the rebuttal, another Apple lawyer, William Lee, had a few good statements to kick off the
rebuttal to Samsung's statement:
1) "If you have the facts, count on the facts. If you have the law, count
on the law. If you have neither, then focus on attacking the competition"
2) "No one is saying to Samsung to get out of the marketplace. What
Samsung said is intended to frighten the audience and frighten you. If you
follow what they say, then we would throw all the patents out the window.
But we can't do that. Our Constitution says that patents are protected....
They all need protection for a limited time."
3) "Second startling thing: they talked repeatedly about $2.7B. What they
didn't talk about was the $8B in profits that they made. Do they deserve to
keep all that $8B?"
He then repeated McElhinny's narrative, that Samsung competed and failed,
had a "crisis of design" then copied the iPhone in a 3-month intensive
effort. He also talked at length about the standards essential FRAND
patents: "Samsung has not lived by the rules. Let me show you the
disclosure history of the '916 patent. The pattern is file a patent,
present a standard and then wait for years before revealing it... [a]
violation of ETSI IPR policy.... This was a corporate strategy."
McElhinney then took over and made an emotional appeal as to why patent protection is
important for innovation: "If you find for Apple, you will have reaffirmed
the American patent system. If you do this, then the people in Silicon
Valley will continue innovating knowing that they're protected. If you
award the damages we asked for.... then you will have determined the rules
of competition for a long time to come in this country."
[Speaking as a
software engineer from Silicon Valley, I'd say much of Silicon Valley would
hold the opposite view to that. For example, even as Apple argues for
infringement, they have just crossed over $600B in market capitalization.
They're doing fine with or without patent protection.]
Verhoeven had the final say. He spent a lot more time looking at witness
testimony rather than the historical documentation that McElhinny
presented. Apple alleged a number of things, such as "intentional delay" in
revealing standard essential patents. He presented the Apple witness
testimony where they conceded that they didn't have evidence and weren't
asserting intentional delay. In a number of cases this didn't affirm that
Samsung was in the right but instead showed the Apple hadn't built up the
solid chain of evidence that it needed. Apple continued to make this and
other claims but Samsung was good to pick holes in this. Verhoeven finished
out talking about Samsung's fairness in regard to the FRAND patents. [This
surprised me as I thought he would've been more focused on the overall case.]
[PJ: The reason he didn't focus on the overall at this point is because they split up the topics to be handled in the closing statements, so he was following that setup and presented the argument in this segment only on FRAND issues.]
Verhoeven: I submit to you that the reason that Apple didn't provide any
evidence of deception is that it didn't happen. Apple wants to prevent its
biggest competitor from selling what consumers want: phones with big
It's seeking to block its most serious competitor from even attending the
game. Look out at the reporters. Why are they here? They're here because if
you go with Apple, it could change the nature of competition in this
country. Do you want a country full of conglomerates armed with patent
arsenals preventing competitors?
Consumers deserve choice between products. Competition is what built the
country. It's not against the law to be inspired. It's not against the law
to do a feature comparison.
Go in to Best Buy and look at the TVs. They all look the same. Look at what
happened: form followed function.
Technology enabled you to send emails and texts on your device. Blackberry
released a device with a keyboard and larger screen and was extremely
successful. What happened with the competition? They all came out with
devices that had a keyboard. Were they illegal copyists? No, we all
benefited from this.
Apple's here seeking $2B from Samsung for the alleged ornamentation around
the screen. According to Apple, they should be allowed to have a patent on
a rectangle with a border.
Is really anyone deceived by the two devices? Consumers don't get confused,
they make choices.
I've got a different style to Mr. McElhinny. I believe in cross-examination.
Asking Peter Bressler about whether consumers get confused. Bressler answered: "I do not
know if they get confused."
It's Apple's burden of proof to provide the evidence to prove this, and this evidence doesn't
meet that standard.
Talking about Anticipation:
We have to look for the small differences between the product and the
Infuse 4G: "Clearly it doesn't have a bezel."
Notably absent is the iconic single button of the iPhone.
In fact, members of the jury, every single design element that Mr. Stringer
said to me is not present in the accused devices.
Bressler: I can see that light is reflective.
Verhoeven: "D'305 claims electronic device and specifically claims a
graphical user interface."
Counsel then showed the startup sequence, commenting how many steps that a
user would have to go through for startup.
Susan Kare: "I don't know about user confusion."
There's only 7 icons similar to the iPhone that are on the "Fascinate" out of the
total of 36 icons on the Fascinate. Susan Kare can only state that the
"Clock" and "Phone" icons are similar. The phone icon is similar but he asked
Kare rhetorically if "Apple owns the design for a retro phone?" Susan
acknowledged no, but got confused about ownership of the 'clock' image.
Showed the startup sequence for the Galaxy Tab and showed how it's not
credible that a consumer would be confused.
I want to talk about Apple's counsel's repeated accusation of Samsung being
I submit to you that it's an intentional attempt to mislead the jury.
Counsel then brought out a large board with a display of Samsung's history
of phone releases. Samsung had a rectangular phone with larger screens and
rounded corners before the iPhone came out. Apple is being selective
about what phones to show.
Talking about the another phone [Galaxy Tab 7? - I missed it] Verhoeven: "They're trying to confuse you
by taking a document that they like that covers a product that's not even
part of this case."
PX34: Feasibility Review on Standalone AP Business for Smart Phone Market.
Verhoeven: "This is the study that came up time and time again as evidence
of copying. Apple counsel argues that benchmarking isn't common within the
industry." Then shows internal Apple email talking about benchmarking and
teardown of competitive products. Shows an example of an internal Apple
teardown for the Galaxy Tab. "Does that mean that they're copyists, and we
can sue them?"
What did they do? They flashed 5 or maybe 10 devices at a time on the
screen. They're demonstratives and don't make it in to the jury room. They
haven't met the burden of infringement by entering them in evidence with
analysis. You'll have to go back in to the jury room without any of that
"Bounceback isn't valid because of the prior art from Diamond Touch... the
patent office didn't know about the Diamond Touch. Had they known about it,
they would not have granted that patent."
For the 915 phone. What did you see? Six phones at a time, flashing a bunch
of phones on the screen as a demonstrative doesn't meet their burden.
Samsung then went through their own "offensive patents". Argued how Apple
placed great importance on following the 3G standard, marketing the "iPhone
3G" as "twice as fast".
We don't think we have to pay any damages but we have to address the issue
of damages as this is our only chance. We have to take this opportunity
that if you disagree with us, we need to explain why Apple's damages
numbers are ridiculous.
"What does it take to make a damages claim of $2B? It takes $1,750,000."
Pointing to Apple's expert witness Mr Musika.
The only one who ignored billions of dollars in costs is Mr. Musika. DX 781.
"Mr Musika states that 100% of the people would switch over to Apple if
these Samsung phones weren't available."
Verhoeven speaking about Michael Wagner's expert testimony: "Samsung
research shows 75% of Android purchasers didn't even consider the iPhone.
Samsung is asking for $312M but Apple is asking for $2.75B, which is not
reasonable... We hope you don't get there [calculating damages] but if you do, you've got
to use your common sense."
Apple's lawyer [Lee]:
I see that I get you at the end of a long day. I want to start by thanking
you for your time. For all of Apple's lawyers and myself, I want to thank
You've heard that we've misled, had ridiculous numbers. I've been
doing this [lawyering] for 37 years.
If you have the facts, count on the facts. If you have the law, count on
the law. If you have neither, then focus on attacking the competition."
No one is saying to Samsung to get out of the marketplace. What Samsung
said is intended to frighten the audience and frighten you. If you follow
what they say, then we would throw all the patents out the window. But we
can't do that. Our Constitution says that patents are protected.... They
all need protection for a limited time.
Second startling thing: they talked repeatedly about $2.7B. What they
didn't talk about was the $8B in profits that they made. Do they deserve to
keep all that $8B?
If they had all this, why did they have a "crisis of design"?
Apple took 5 years to bring this revolution to us. Samsung took 3 months to
What really happened is that Samsung tried to compete with its own design
in 2007-2009. In 2010, it had a crisis of design and started copying.
Samsung patents: none of the 13 inventors were willing to enter the witness
stand. [PJ: Note that Samsung tried to find the inventors, and a number of them were not to be found. These are old patents, and even finding documents was tough. You can see that in the hearing transcripts where the sides argued about what Samsung needed to produce in discovery, and you'll find those in Groklaw's Apple v. Samsung Timeline page.]
Samsung wants to take that $8B and walk away. That's not how the system
Good indication is that Samsung doesn't use them.
Better indication is that when they came to design these new products, they
didn't call up the old inventors -- they instead looked at Apple's.
'893 patent refers to modes many times over. Samsung not claiming anything
about airplane mode or any other mode. Samsung expert doesn't identify
"The difference between the 5 patents that Samsung have belittled today and
our patents. The products with the Apple patents have been commercially
successful, they've been widely praised. The Samsung patents haven't been
used by anyone, they haven't been praised, they haven't had unusual
'516 patent. "Did he try to compare the claim? He compared a picture and
not the claim.
Samsung has not lived by the rules. Let me show you the disclosure history
of the '916 patent. The pattern is file a patent, present a standard and
then wait for years before revealing it.
Violation of ETSI IPR policy.... This was a corporate strategy.
Jun Won Lee: I'm not sure if that has ever happened. If it did then that
was a stupid thing."
They made a demand of 2.4% of Apple's revenue. Samsung has not been paid
one red cent for any of their standard essential patents. It's also a
violation of the antitrust laws. You can't come in and walk over our
antitrust laws and then get a get-out-of-jail-free card.
"Their response over and over again is competition. They claim that Apple
is trying to monopolize the market. Make no mistake, Apple wants to
compete. You think that the two people who started Apple didn't want to
One of the marvellous parts of our jury system is that it brings you fine
9 folks together. You can bring your common sense and wisdom to bear.
"Samsung said 'We didn't copy'. We know that's not true. Samsung
then said, 'if we copied then the patents are invalid'. Samsung then said
'if we copied Apple and the patents are valid, then the damages should be
McElhinny re Trade Dress:
Jury Instructions for Trade Dress are for overall impressions, not
The judge will give you a model.
If you find for Apple, you will have reaffirmed the American patent system.
If you do this, then the people in Silicon Valley will continue innovating
knowing that they're protected. If you award the damages we asked for....
Then you will have determined the rules of competition for a long time to
come in this country.
The other way Samsung wins is if you compromise on the damages. Samsung
already spends a $1B on advertising. You see it all around outside the
Let me address Apple's accusations that the inventors intentionally mislead
people. There's no evidence of that. Let's go to the evidence. The IPR
rules [have no duty to share confidential information]. The Samsung
applications were confidential and there was no duty to share it.
He then showed testimony from Apple's expert witness: "Are you offering an
opinion that there was intentional delay?" Apple witness: "No, I'm not".
Shows diagram of the Samsung chips being made in Germany and delivered to
China. You can't show infringement when it didn't take place in the United
Verhoeven thanked the jury.
That completed the closing statements.
Judge Koh to the jury:
You will have to communicate by paper. Please don't communicate with Miss
Parker or the bailiff or anyone else. You're going to communicate by paper.
You will receive a copy of all the exhibits that were entered into
Koh: She next talked about how to handle communications from the jury, meaning lawyers. No need to
stay in the court, but please give contact information to Miss Parker.
You will get ECF notices that the jury is deliberating or has finished for
the day. Hours of deliberation are 9 to 4.30.