Samsung twists truth, tells jury – 8 times – that Apple never used 3 of the 5 patents in lawsuit

“The issue in the first week of the new Apple v. Samsung trial is what Apple meant by the ‘undisputed fact’ in the attached quote, taken from a joint pre-trial statement,” Philip Elmer-DeWitt reports for Fortune.

“Apple was willing to admit that it didn’t ‘practice’ — or ‘use’ — three claims in three of the five patents it alleges Samsung infringed. It did this, according to a Samsung brief, to avoid opening the door to a challenge of the validity of those patents,” P.E.D. reports. “In its openings remarks, Samsung took that admission and ran with it. It told the jury eight times, in eight different ways, that Apple placed so little value of patents ‘959, ‘414 and ‘172 that it didn’t even use them.”

“The jury may be forgiven, after all that, if it concludes Apple never used any part of the three patents at issue. What Samsung didn’t tell the jury is each of those patents contains not one or two but dozensof claims. Patent 6,847,959: 49 claims; Patent 7,761,414: 32 claims; Patent 8,074,172: 38 claims. In other words, Apple admitted that it didn’t use one part of each patent. The rest — as far as we know — ARE being used.”

Read more in the full article here.

MacDailyNews Take: If Apple spent half the time, energy and money they have on these fruitless, endless worldwide legal farces on designing and building iPhone models with larger displays instead, they would have actually hurt slavish copier Samsung; nipped them in the bud, in fact.

While Apple’s VP of Worldwide Marketing Phil Schiller dicks around in court, Samsung’s marketing runs rings around Apple marketing (which seems content to endlessly ask us which verse ours will be) with a string of contrived, yet very effective to Samsung’s target market, celebrity selfies.

Apple will never get anything anywhere near to the level of justice they deserve. The law simply doesn’t work for Apple. It aids the infringers, in fact. Better for Apple to get busy inventing the next big thing, expect it to get knocked off, and then produce the next big thing, etc. No wonder some investors question Apple’s ability, sans Steve Jobs no less, to constantly innovate, shift paradigms, and revolutionize/invent entire industries. The range-bound stock price speaks volumes. Imagine if Apple could someday revolutionize an industry and actually be allowed to reap the full rewards of their blood, sweat, and treasure instead of being ripped off willy nilly by slavish copiers preying on the ignorati?

Related articles:
Apple loses bid to show patent use in Samsung trial – April 4, 2014
Apple v. Samsung II: A user-friendly checklist for the new jury – April 3, 2014
Florian Müller: Apple does not ‘own’ multitouch smartphones and tablets any more than Samsung ‘owns’ phablets – April 3, 2014
10 European judges found Apple had not invented slide-to-unlock (star patent at Samsung trial) – April 2, 2014
Florian Müller: When all is said and done, despite years of Apple litigation, Android will continue to be world’s most popular mobile platform – April 1, 2014
Apple v. Samsung jury is seated in California patent trial – April 1, 2014

58 Comments

      1. You need to:

        1. Look up bipolar.

        2. MDN has been perfectly consistent:
        a) These endless lawsuits seem to be accomplishing little or nothing.
        b) Apple should have had a larger iPhone by now

        3. Both a + b above are factual and can be backed up with data

        4. Stop wondering and get lost. We won’t miss ya.

        (Brought to you buy Carl’s Jr.)

        1. 1. Bipolar disorders –
          Bipolar disorder (BD), an unstable emotional condition characterized by cycles of abnormal, persistent high mood (mania) and low mood (depression).
          bipolar |bīˈpōlər|
          adjective
          Having or relating to two poles or extremities.
          But let’s not hang on the dictionary, Bipolar has, in an abstract sense, especially at street level, transcended the medical term, the expression is used by the body politic, to express a third person’s exhibition of cognitive dissonant.
          That fits MDN to a T. Watching MDN squirm when things seem to going pear shaped for Apple is interesting. The “MDN Take” is a multiple daily drama, a daily comic strip, it’ll make you laugh and cry with indifference. The twisted political views and and myopic agitation regarding Apple is palpable. However – none of that stops me frequenting MDN everyday and reading between the lines.

          2. MDN has not been consistent.
          2a. “seem” (weasel word) Show us the data on $929.8 million, not that it’s about award money.
          2b. Why ?”by now” it will be ready when the tech is right, that time is soon. Show us data that is actually relevant, and by relevant, how Apple is losing out over the long term. This isn’t a 20Twenty game, this is a Test.

          3. Show us the relevant data, not short term details.

          4. Childish … though, apposite considering your avatar.

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      1. No. The position put forth by MDN is naive at best.

        As I’ve said elsewhere here, it is not realistic to believe that *any* company can purely innovate and stay ahead. Unfettered copying by those who have raised it to its highest black art form will always do you in. The copiers are getting better and better at copying and are doing it faster and faster.

        1. I believe MDN’s point is: What new marketing was Schiller working on while preparing to sit in court and then sitting in court wasting his and everyone else’s time?

          1. Yeah right, like Phil prepared or invented anything great. Best to have the guy out of the way of the creative, inventive types so that they can do their magic.

          2. Schiller is a salesman. He is a damn good salesman but nevertheless he’s a salesman.

            You want a salesman and not a designer or coder twiddling their thumbs in a court room for a month or so.

            MDN is off the tracks. How can any IP be saved if the opposition can use it a couple of months after Apple releases the next big thing?

            Apple has to guard their IP until the argument is solved in their favor. It is only money Apple is pissing away. It is not as if Apple was poor or something.

            Everyone else is at the office working on the next big thing.

    1. I agree.

      Yes, Apple should lessen its feeding of the lawyers and move more rapidly toward new products, BUT stopping most of the litigation (let alone all of it) will only en-hearten the copiers.

      Because some of the copiers, such as Samsung, have large staffs who are dedicated to creating copies of what others invent, it is not possible for Apple (or any other company for that matter) to rely solely on creating new and innovative products in order to maintain any concept of a technological lead.

      Apple could come out with a radically new and highly valued product every six months and some company like Samsung would be shipping a cheap knock off within three months of each item’s introduction. So even if Apple increased its IR&D budget by a factor of 10 and introduced products every six months, it would not be able to make back its sunk costs in IR&D. A copier would come out with a cheap knock off three months later, and unfortunately a large fraction of the population wants cheap products no matter what it takes to get them.

      Apple MUST do a judicious amount of BOTH litigation and innovation. Even if Apple loses a significant fraction of the trials Apple must demonstrate that it is very willing (one might say eager) to defend its intellectual property rights. Otherwise, Apple becomes nothing more than the IR&D department for every other company out there in this industry.

  1. So why didn’t Apple’s lawyers object when Samsung’s made the misrepresentation? They let it slide by eight times and only raised the issue in a motion filed later. Elementary first-year law school adage: if you snooze, you lose. Having failed to object, Apple waived its complaint, which is why the judge denied their belated motion.

    My guess is that the failure to object was a trial tactic, gambling that the judge would hold that Samsung had opened the door and then let Apple provide proof of its patent use. If so, Apple lost the gamble. This was questionable lawyering, not bad judging.

      1. If the judge has ruled that the jury will not consider a particular subject, and one of the parties gets into it anyway, it is the responsibility of the offended party to stop it. The only way to do that is by objection. If Apple did not object the first time, it should have expected Samsung to keep going seven times more. Once the jury had heard it eight times, the judge could not unhear it for them. She could maintain her ruling that use of the patents was not going to be a jury issue. She did.

      2. Kinda/sorta. https://www.manhattan-institute.org/html/cjm_38.htm
        Until recently, experienced attorneys rarely bothered to object to all but the most outlandish statements made by opposing counsel; they knew that judges were unlikely to sustain their objections, and that the interruption would appear rude to the jury.

        There are two primary reasons why judges have allowed parties to abuse opening statements and closing arguments. One is ideological, the other is practical.

        The ideological explanation is the popularity of the theory, held explicitly or implicitly by many judges, lawyers and law professors, that the purpose of civil jury trials is not to ensure that current law is correctly applied to the facts. Rather, juries are seen as a check on legal rigidity and are expected to be indicators of the direction of the law’s evolution.4 Juries therefore are not expected to strictly apply the facts to the law in all circumstances. Instead, juries are expected to base their verdicts on “extralegal values” or “their sense of justice.”5 Judges have therefore been inclined to acquiesce to attorneys’ unduly emotional appeals in jury argument, even when the attorneys have been technically in violation of the rules of proper argument.

    1. May have been bad lawyering, but it was absolutely bad judging too.

      Samsung violated a pre-trial order. The *first* time it happened the judge, herself, should have halted the proceedings (she shouldn’t have depended upon Apple to object at the time), pulled the lawyers into chambers and scolded (at the very least) Samsung’s lawyers. Then back in the courtroom the judge (at the very least) should have instructed the jury to ignore Samsung’s statements about this issue in their considerations of the case.

      Additionally, you can say almost anything you want during opening and closing arguments, but you don’t get to outright lie. When that happens the opposing side gets to bring up the lie as part of its rebuttals and if necessary use it as a point in its appeal. Unfortunately, Apple has been forbidden to bring up the simple, clear fact that Samsung’s lawyer’s lied. Again, this is a bad action on the judge’s part.

      1. Judge Koh let Samsung’s lawyers lie before, and egregiously so. In direct violation of a court order to maintain the confidentiality of Apple information, Judge Koh allowed the Quinn Emanuel lawyers to divulge this confidential information to Samsung, and she did not require them to bear any real consequence at all for their dishonest behavior: she barely gave them a hand slap, let alone sanction, professional reprimand, disbarment, fines, or any punishment whatsoever. Samsung lawyers directly disobeyed the judge’s court orders and harmed Apple by doing so, for which Judge Koh did little or nothing to punish them. This may explain why Samsung lawyers have not been deterred from further lying.

        When QE lawyers explained their action using the “oops, it was an accident” defense, Apple questioned its veracity and the integrity of the QE lawyers by commenting that surely something must have been “lost in translation” when interpreting the Judge’s order. Apple’s lawyers were essentially saying they found it ludicrous to believe any expert lawyer could misunderstand a judge’s court order, and their professional duties consequent to it. Also, note that the judge and all lawyers involved are native speakers of American-English, the language in which the court order was given (so the comment was not about translating from American-English to Korean). The Apple lawyers were calling bullshit on the QE lawyers.

        Instead of handing out severe consequences to the offending QE lawyers, Judge Koh instead chose to point the finger at Apple lawyers, whom she thought were trying to raise “xenophobic” sentiments in her courtroom, about which she went a little rant and then chastised the Apple lawyers.

        It is sort of like letting a bully off for a bullshit excuse for picking on someone, and then chastising the innocent party for suggesting the bully was lying. Please tell me this sort of thing is not being perpetrated in the US Federal Court !

        The whole thing would be really funny if the case, and the venue, were not so important.

    2. @TxUser – clearly you haven’t taken even first year law school. Peterblood is right – you cannot object during opening statements. And the judge denied Apples motion to have the misstatements corrected. However, this can still play out to Apple’s advantage – Apple is free to provide evidence during the trial that it uses the other claims and how Samsung – being true to form – likes to mislead, give wrong impressions and has its own version of the truth.

      1. Comes as news to me that you can’t object to an objectionable statement during argument. I saw people doing it on a regular basis for roughly forty years. How else could you stop opposing counsel from poisoning the jury by grossly misstating the law and facts? Certainly you do it (objecting) sparingly, but sometimes there is no choice. In an adversarial system, it isn’t the judge’s job to protect your client; that’s your job.

        Based on the story here, Apple will not have the opportunity to refute the claim of non-use. That is precisely what the denied motion requested.

  2. Apple should not have to spend so much time and effort defending what is rightfully Apple’s. The legal system in our country should work a little more smoothly. What if we all stopped defending what is rightfully ours? Further, the public is to blame, as is Apple, for continuing to buy a thief’s products.

  3. MDN is being completely amoral in suggesting that Apple not stand up for what is right and just.

    The comment MDN made about a bigger iPhone shows that they just don’t ‘get’ Apple and what it is about. It is not about giving people what they want but it is about giving them what they need and what will delight them and the highest possible quality. In short, excellence. MDN is unfamiliar with that word.

      1. Some people say that the glass is half empty and others say that it is half full. Engineers say that the glass was twice as big as it needed to be. Apple is an engineering company.

        Engineering isn’t about giving people what they want. It is about giving them what they need.

        1. Clearly, a great deal of customers want and need iPhones with larger displays. It’s Cook’s fault that Apple is so late on this. By not having a larger iPhone, Apple handed Samsung a large portion of a market that Samsung does not deserve.

          1. Larger display phones are in the 10% to 15% range of total cell phones sold.

            Feature phones are in the 40% to 50% range of total cell phones sold.

            Seems to me that most cell phone buyers want cheap feature phones.

            Do you really want Apple to sell cheap feature phones?

            Do you really want Apple to make a Samsung Galaxy Note 4 Clone?

    1. I completely agree that MDN is being silly here and overreacting completely. Apple has to fight. This fight is in no way preventing them from continuing to make products that people purchase and enjoy. Don’t let Samsung’s smokescreen fool you. They have no morals as we have seen time and time again by their behavior in court and their willingness even to go so far as to pay people to write fake posts about their competition. Samsung should work harder to make phones half as reliable with unique features half as useful as what Apple puts out time and time again…

    2. But we do NEED a bigger iPhone…..most of the things you do on a smartphone is better on a bigger screen. 4″ is just not big enough. Excuses like bigger phones do not fit is ones pocket, or cannot be used in one hand are rubbish, millions of people are using them this way. A well designed bigger phone is just as comfortable in the hand and pocket? In fact phones with a more even length to width ratio feel more balanced than the long thin design of the iPhone.

      1. “But we NEED faster horses…..most of the things you do are better done by getting there faster.”

        Quote from people who lived just over a hundred years ago before the automobile was common.

        The iPhone is first and foremost a phone and other tasks it performs are secondary. If you want a bigger screen, Apple makes bigger screens called iPads. It is not innovative to just make something bigger.

        1. The iphone is marketed very clearly as a smartphone, not a phone. A high % of smartphone users apple or otherwise use non-phone features more than the phone itself. If you just need a phone with everything else being secondary I can see the logic of then using your ipad or other tablet. But then why spend top dollar on the phone Apple or otherwise, when you can buy many phones that have basic features and much better battery life.

          People who buy a smartphone want all the features and in a portable format and can be used as a phone! The iPad is great piece of kit, but does not fit in the pocket or cannot be used easily as a phone.

          It actually does take innovation to make something bigger, different design, maintaining quality of screen , keeping good battery life … and it improves the productivity and experience of a smartphone significantly.

            1. First I do have a bigger phone than 4″ already am very happy, but like many, many others would love to see a bigger iPhone too.

              Secondly, if you want to quote an analogy, then make it relevent and to the point. In comparing a larger phone to a truck you are wrong. A truck is a commercial vehicle, more for carrying goods than people. We are comparing a small phone to a larger one, not so huge it is meant for another purpose, Better to compare an iphone to an ipad for that (the point I made earlier).

              We are comparing smartphones, not phones or tablets and a larger smartphone that is still portable and still carries out the functions of a phone, but the “smart” functions better is going to be the better smartphone.

              A better analogy would be a small family car with limited luggage space to a large one with ample space. Both move u From A to B, but the latter is far better fullfilling a families transport needs.

  4. Regarding MDN’s take that the people on the legal team spend time instead designing the next iPhone, lawyers don’t make very good iPhone designers.
    Apple has plenty of money to hire more people, but throwing more money at a problem won’t make for a better team.

    Apple NEEDS to defend their patents. If they don’t, Samsung will repeat that blunder 8 or more times in their opening statements.
    What the world needs is a better legal system.

  5. MDN’s take is Spot On. They Nailed It. After observing Samsung’s antics in courtrooms around the world for the past three years, any reasonable man would conclude, not that Samsung has bought our justice system; or the justice system is incompetent; or Samsung has acted with impunity and gotten away with it; but that Apple has Failed. They are wasting their time in the courtroom trying to defend their rights to their patents and copyrights. With the Money and Resources Apple has, they should have been able to ram through an Import Ban of Samsung’s products by now.

  6. what MDN’s take misses or ignores is this litigation track is the one Jobs took Apple. You can mock Phil but in reality the dicking around was insisted by Jobs and is PART of his legacy. Second, it was Jobs insistence at the end to keep iPhone capable of one hand operation. product development cycles of iPhone are 3 year. meaning not only is iPhone 6 completely baked now, the follow on is mostly baked and it’s follow on is partially baked. Jobs instance at keeping one hand iPhone has take 3 year after his departure to play out. Blame Cook and call him a dick but it’s Jobs legacy you are maligning

  7. Let’s see where this patent trial takes us. Apple’s got plenty in the bank to not have to worry about timing. Again, if they’re going to make insanely great products and shift whole industries/paradigms, what’s the rush?

    Also, by tying Samsung and Google to some extent to defend and await this outcome, they’re tying them up too.

    I’m not worried about Apple and what next great thing they will or won’t produce. Producing great stuff is baked into their DNA. What people are worried about is whether Google or Samsung will now get “there” (wherever that is) first. That’s not how Apple produces goods (e.g. there were tons of both cellphones and MP3 players way before Apple made “the best” of both).

    Folks should stop concentrating on the immediate “short end game” and take a much longer view and perspective on Apple and what great stuff they will be bringing us.

    In some ways, I think we’ve become addicted to the rapid cataclysmic shift that Apple brought us in the early 2000s and now simply can’t wait, while we feel that Samsung/Google or others will somehow “steal” this ingenuity away from Apple. To that I say, “grow up”.

    1. Who is more likely to lack a satisfying social life?

      The person who offers reasoned and polite criticism to temper blatant religious devotion to the apple god…

      …..or the person who reacts so emotionally, so hatefully, and so accusatorily to such polite criticism?

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