California, Federal Judges, Intellectual Property, Jury Duty, Patents, Technology, Trials

Dispatch from Apple v. Samsung Closing Statements: The World is Watching

What. A. Day. Long long ago, in a time before lunch, I again trekked down to San Jose to watch the closing arguments in Patent Super Bowl 2012: Apple v. Samsung. That, and go through the most boring morning of my life, as close to 40 attorneys, dozens of spectators, reporters, and the unseen masses in the overflow room, sat through a reading of 109 pages of jury instructions.

But after lunch, we finally got what we hoped for: four hours of impressive performances from Charles Verhoeven, Bill Lee, and Harold McElhinny. We’ve probably got a year’s worth of Quotes of the Day from this afternoon, but by the end of the day, one phrase, one idea was abundantly clear: “The world is watching.”

Before the fun started, everyone in the room — the jury, Judge Lucy Koh, the attorneys, and the peanut gallery — sleepwalked through roughly two hours of the 109-page jury instructions. There’s not much to say about it, other than Judge Koh deserves a medal for getting through the document without weeping. She also kindly allowed everyone periodic 10-second stand-up-and-wiggle breaks. But yeah. God, it was boring. (The verdict form is no cakewalk either. It’s 20-odd pages of complicated boxes that people keep comparing to a New York Times crossword puzzle and an inkblot test.)

ANYWAY. After lunch, Harold McElhinny of Morrison & Foerster, counsel for Apple, kicked things off. He spoke passionately, sometimes bordering on sentimentality, especially when one remembers this is all about cell phones. He sounded like a college history professor, with clear, emphatic, and linear explanations.

McElhinny wasted no time digging hard into Samsung. As Joe Mullin at Ars Technica summarized:

The story of Samsung’s copying, said Apple lawyer Harold McElhinny, was told in Samsung’s own documents. He ran through the competitive analysis from inside Samsung that showed the company was worried about its user-interface technology. There was the email from the designer who talked about a “difference of Heaven and Earth” between the iPhone and a Samsung phone; the same email talked about a “crisis of design” at the company.

That crisis kicked off a period of “intense copying,” said McElhinny. “In those three months, Samsung was able to copy Apple’s 4-year investment in the iPhone, without taking any of the risks — because they were copying the world’s most successful product.”…

When it came time to wield the damages hammer, McElhinny didn’t hold back. “Samsung makes fun of our damages claim,” he said. “They make fun of us asking for billions of dollars.” But two serious factors are driving Apple’s $2.75 billion damages request, he said: first, Samsung has sold 22.7 million infringing phones and tablets in the U.S. — that’s 30,000 units per day in the relevant period. Those have generated $8.16 billion in revenue, McElhinny said.

At some point, McElhinny started to sound a bit dull, mired within the complex technical details at the center of the case. When Charles Verhoeven of Quinn Emanuel stepped up to bat on behalf of Samsung, he reenergized the room with some southern heat. He quickly portrayed the case as a cosmic battle for fair competition. Here are some of his best lines:

Apple’s here asking for what it’s not entitled to. It’s asking you to prevent its largest competitor from giving consumers what they want.

Rather than competing in the marketplace, they’re trying to get an edge in court.

He took several shots at Apple’s contention that consumers could be confused by the difference between Samsung and Apple products. Essentially, he argued consumers aren’t stupid:

Consumers make choices, they don’t make mistakes. There’s no deception, and Apple has no evidence of it…

It’s obvious! Any customer who buys one of these things knows [what] they’re getting…. It just isn’t credible!

And then he brought out the Big Idea:

Why are all these reporters here? Your decision could change the way competition works in this country.

Verhoeven proceeded to review his cross examinations of Susan Kare and Peter Bressler, hoping to shoot holes in the nitty gritty specifics of Apple’s case. (You can read our previous coverage of those witnesses here and here.)

After a short break, Bill Lee of WilmerHale took over for Apple’s rebuttal. Despite making headlines as the butt end of Judge Koh’s crack about crack last week, Lee was sharp and energetic as well. Ars Technica explains:

The contention that Apple doesn’t want to compete is “startling… and it is wrong,” said Bill Lee, the Apple lawyer who delivered a final rebuttal.

“No one is trying to stop them from selling smartphones,” he said. “All we’re saying is: make your own. Make your own designs, make your own phones, and compete on your own innovations.”

Suggesting that competition in America would fall apart from a pro-Apple verdict was nothing but a scare tactic, Lee said. Samsung wanted to take the patent laws the jury had just spent the last two and a half hours being instructed on and “throw them out the window,” he said. “We can’t do that, because the Constitution says we have to have them, to protect innovation.”

Make no mistake, Lee said, just before handing the floor back to McElhinny a final time: Apple wants to compete fairly. “[But] you can’t come in and trample our antitrust laws and expect a get out of jail free card.”

McElhinny took a few final minutes to turn Verhoeven’s good-versus-evil narrative in the other direction: “They’re right,” he said. “The world is watching.”

He implored the jury to reaffirm the American patent system and give Samsung more than a slap on the wrist. “We trust you,” he said.

In a genial final twist to a consistently hostile trial, attorneys for both companies gave extensive thank-yous to the jury. In court today, it was clear no one envies the task now facing them.

Readers have begun clamoring for my — and other reporters’ — verdict predictions, but everyone I spoke to is hesitant to prognosticate. If I had to bet (and just put something on record so I can say “I told you so” later), I might throw a couple bucks Samsung’s direction, but it’s anyone’s game here. Frankly, I’m as anxious to see the verdict as everyone else.

Godspeed, jury of my peers. We await your divine wisdom.

In closing arguments, Apple lawyer tells Samsung: “Make your own phones” [Ars Technica]

Earlier: Benchslap of the Day: Are You On Crack?
Apple Rests Its Case, Samsung Claims Small Victory, and Judge Koh Continues Awesomely Busting Heads
What’s Really at Stake In Apple v. Samsung
Above the Law Goes to Trial — Dispatch from Apple v. Samsung
The Apple v. Samsung Trial Continues, And John Quinn Keeps Taking Shots
John Quinn Defends His Personal Honor As Apple v. Samsung Trial Gets Crazier

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