Jurors Face Daunting Task in Tech Trial

     SAN JOSE, Calif. (CN) – The massive patent and trade dress war between Apple and Samsung is now in the hands of the jury, but once again what went on behind the scenes took center stage.
     Attorneys for both sides spent Monday huddled with U.S. District Judge Lucy Koh, hammering out the sprawling 109-page jury instructions and the 22-page verdict form. The latter contains 36 question sections consisting of more than 700 individual questions, which the jury must answer in order to return a verdict.
     The companies’ CEOs also sat down to fulfill Koh’s last request for a settlement in the nearly two-year-old case in which Apple claims Samsung “slavishly copied” the iPhone and iPad designs and technology to produce the Galaxy smartphones and tablets. Not surprisingly, neither side budged during the talks.
     Both Apple and Samsung dropped demands for adverse jury instruction sanctions stemming from e-discovery failures. Koh wanted to sanction both sides for failing to turn over emails relating to their smartphone and tablet development, but Apple and Samsung — which have agreed on nothing during their 16-month battle — agreed to keep the instructions from the jury, a move the judge applauded.
     By Tuesday morning, the spirit of agreement had evaporated, and attorneys for the two tech giants quibbled over how the other planned to spend the two hours allotted for closing arguments and rebuttals. By 9 a.m., Judge Koh had had enough. She called in the jury and began her two-hour, 15-minute reading of the jury instructions.
     “I need everyone to stay conscious during the reading of the instructions, including me,” Koh quipped.
     After a break for lunch, the marathon day continued with Apple attorney Harold McElhinny of Morrison and Foerster kicking off the company’s closing arguments by exhaustively detailing the similarities between Samsung’s Galaxy products and the iPhone and iPad. He pointed out that both the “overall visual impression” and user interface elements are substantially similar.
     “Samsung was iPhone’s biggest fan — they knew a good thing when they saw one,” McElhinny told the nine-member jury.
     He also presented Samsung internal memos from 2010, in which executives of the South Korean company admitted they faced “a crisis of design” over the iPhone.
     “Witnesses can be mistaken. … Exhibits that are created in a trial are always created with a purpose. They can confuse and can mislead,” McElhinny said. “Historical documents are almost always where the truth lies.”
     Samsung attorney Charles Verhoeven, with the firm Quinn Emanuel, told the jury that what Apple really wants to do is rework the American system.
     “The real reason Apple brought this case is because, rather than competing in the marketplace, Apple is seeking a competitive edge through the courtroom,” Verhoeven said. “If Apple wins, it will change the way competition works in the country.”
     Verhoeven said that in the tech business, form follows function. He pointed to the keyboards of Research in Motion’s Blackberry devices.
     “Everyone came out with the full-keyboard mobile phone,” he said. “Were they copying? No, they just followed the technology.”
     In the same way, the rectangular, large-screen design is what people want and expect in smartphones, according to Verhoeven.
     Apple is demanding $2.5 billion in damages from Samsung, a number Verhoeven called “ridiculous.” He reminded jurors of Samsung’s countersuit claiming that Apple violated its patented 3G technology with the iPhone.
     “We’re not liable,” Verhoeven said.
     But in Apple’s rebuttal, attorney William Lee told jurors that $2.5 billion was a fair number to consider based on Samsung’s revenue spike after releasing smartphones that looked and felt more like iPhones beginning in 2010.
     “They copied our products and made $8 billion,” Lee said.
     McIlhenny ended the day for Apple by reminding jurors of their enormous responsibility in the case.
     “The world is watching, and the nine of you have the power to determine the laws of competition,” the Apple lawyer told the jury. “Samsung will not change the way they operate if you slap them on the wrist.”
     The seven men and two women begin their deliberations Wednesday. Given the complexity of the evidence, the instructions and their verdict form, no decision is likely soon.

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