Intellectual Property, john quinn, Patents, Technology, Trials

Above the Law Goes to Trial — Dispatch from Apple v. Samsung

As some of you may have noticed, I spent yesterday in the San Jose Federal Courthouse, watching (and furiously tweeting) the Apple v. Samsung trial. The trial is on recess today, and I’m back in my blogger cage bedroom office. I’ve got a rundown of all the excitement, awkwardness and humiliation that can only happen in a highly publicized celebrity murder, err, patent trial.

Click through to see what’s shaking as the trial progresses….

Most of the day consisted of testimony from three Apple expert witnesses: Susan Kare, Russell Winer, and Hal Poret.

We jumped into testimony after some strange fighting over which version of which phone was used in which exhibit. Judge Lucy Koh wasted no time digging into the litigants before the jury entered the room. It became quickly clear that media reports of her frustration with the two parties has not been overstated (or necessarily unjustified).

After that was cleared up, Peter Bressler finished off his cross examination (which had not gone well earlier in the week) with more detailed questions about bezels. For the 90% of us who don’t know what the heck a bezel is, the dictionary defines it as a grooved ring holding the glass or plastic cover of a watch face or other instrument in position. He will probably have bezel nightmares for the next month.

Susan Kare, a former Apple employee, legendary designer and expert in digital icons (she designed the old-school Microsoft solitaire cards), was next. She’s got quite a reputation: a friend who works at a tech start-up told me, “I’m jealous you got to see Susan Kare yesterday!” She was there to discuss and compare the screen designs of Apple’s and Samsung’s phones. During direct, she came across as amiable, soft-spoken, and perhaps a bit timid.

Charles K. Verhoeven

Kare’s main point, which she repeated several times during direct examination, is that her “overall visual impression” is that the screen layouts of the companies’ phones are similar. Like other Apple witnesses, she said that could lead to consumer confusion. Charles Verhoeven, the Quinn Emanuel partner handling things for Samsung, unleashed a stream of objections that continued most of the day, mostly claiming that things she said were not her expert report. (Sadly, John Quinn was not in the building. Maybe he was tired of getting yelled at.)

To support her opinion, she pointed to several general aspects of the design, such as colorful icons, rounded corners, and realistic yet stylized classic images like a clock and old-fashioned telephone.

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).

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.

After several rounds of redirect during which everyone almost fell asleep, we moved on to Russell Winer, a marketing expert and chair of NYU’s marketing department. He came to the stand to talk about Apple’s marketing strategy and the idea that its trade dress is “highly distinctive.” He testified that Samsung’s phones diluted Apple’s place in the market.

He came on after lunch when everyone was already tired, and his marketing talk was denser then Kare’s. He argued similar principles as previous witnesses, just in a different context. He also got roughed up during cross-examination. Verhoeven hammered Winer’s apparent lack of “objective,” “empirical,” and “quantitative” data. There were lots of long, awkward silences. I don’t think anyone sitting in the gallery was sad when his testimony finished relatively quickly.

Hal Poret was the final witness for the day, and his testimony was unexpectedly exciting. The mathematician — and Harvard JD — was hired to create surveys to see if the iPad and iPhone have developed secondary meaning. During cross-examination, the obstinate, stoic researcher stood by his work and took Samsung attorney Bill Price to the cleaners.

Price, a louder, more aggressive QE partner, repeatedly tried to get Poret to admit inconsistencies, but Poret responded with variations of, “You’re describing an incorrect arbitrary analysis… that makes no sense…. I didn’t do that analysis.”

At one point, Poret said, “I can’t say you’re right, because I can tell you’re confused.” It felt like Price was trying to tear down a brick wall with a spork.

Some of Poret’s comments drew snickers from the crowd, and after incessant objections all day, the silence from Apple’s side of the room spoke for itself.

A little after 4:30, Judge Koh rang the bell and Price was let off the hook until Friday.

And then I ran out the door, caught the train back to San Francisco, and passed out.

That’s the nitty-gritty, but there were plenty of other spicy tidbits worth mentioning. Go to the next page to see why Judge Koh is a judicial rockstar, to read about Verhoeven’s gender pronoun blunder, and the absurdist “Find the Right Phone” dance…

(hidden for your protection)

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