Apple v. Samsung: tech’s most vicious patent war returns to court

Apple may have been awarded $119.6 million in damages from Samsung for the latest patent spat between the two tech giants, but the Cupertino-based company is looking to get that final number modified to a value closer to the $2.191 billion it originally requested. In a wholly expected move for a patent dispute such as this, Apple filed documents in court yesterday to seek a permanent injunction against a number of older Samsung phones that a jury last month determined to infringe a couple of Apple’s software patents.

The devices include the Admire, Galaxy Nexus, Galaxy Note, Galaxy Note 2, Galaxy S II, Galaxy S II Epic 4G Touch, Galaxy S II Skyrocket, Galaxy S III, and Stratosphere, according to the court filing. Newer devices were not included in the latest lawsuit between the two companies, but Apple is also seeking to get a sales ban against “software or code capable of implementing any Infringing Feature, and/or any feature not more than colorably different therefrom.” That could include newer phones and tablets.

Not even a day after a new report that Apple and Samsung had resumed settlement talks, lawyers from both sides have expressed difficulties with one another. As part of a court-mandated update from the pair, following the conclusion of their second major US trial earlier this month, lawyers from both companies said settlement talks had not only been a failure in the past, but were stymied by actions following the trial.

For Apple, that includes statements made by Samsung’s lead attorney John Quinn, who referred to Apple as a “jihadist” and called the protracted trial “Apple’s Vietnam” in a pair of interviews. In a letter between the two law firms dated last week, Apple’s law firm WilmerHale expressed reservations about spending additional time on discussing settlement options based on those interviews. The firm also accused Samsung of using the initial settlement talks to license Apple’s patents in order to “clone Apple products,” something the iPhone-maker called “counterfactual.”

After additional deliberations, the jury who decided the second month-long trial between Apple and Samsung last week awarded Apple an additional $4.02 million for damages involving Samsung’s Galaxy S2 smartphone and an Apple patent covering an autocorrect feature, reports Recode. However the group also readjusted damages figures from other parts of the form, resulting in a total amount that did not change.

That Galaxy S2 smartphone was found to infringe Apple’s ‘647 patent, which turns addresses and phone numbers into links. In its calculations, however, the group did not include damages related to a separate Apple patent, one that automatically completes and corrects words as users are typing. District Court Judge Lucy Koh decided Samsung was infringing on that patent as part of a separate decision back in January, but the jury left the box blank in its initial decision, and was sent back to correct the form. The group opted to finish it today instead of staying into the night last week.

In a decision, the jury said Samsung primarily infringed on two of Apple’s five patents, the ‘647 and ‘721 patent covering features that turned addresses and phone numbers into links, and Apple’s slide to unlock patent respectively. On the flip side, the jury said three models of the iPhone, and two models of the iPod touch infringed on a Samsung patent covering a photo and video gallery feature.

Both numbers are minuscule when compared to the original amounts sought by both companies. Apple originally wanted $2.191 billion in damages, targeting 10 Samsung devices for infringing five patents. And Samsung’s counter-suit against Apple targeted nine devices, including iPhones and iPads, asking for a far smaller $6.2 million.

In a note today, the jurors deciding the case between Apple and Samsung said they wanted to know exactly what late Apple CEO Steve Jobs said when deciding to pursue the legal fight against the South Korean electronics giant. The group also said it wanted to know specifically if Google was mentioned as part of that discussion, a notable detail in a case where the Android-maker is not named but has brought its employees to testify on Samsung’s behalf.

“What did Steve Jobs say at the moment he directed, or decided to prosecute, a case against Samsung?” the group asked in a note. “Was Google mentioned, and/or included in that directive, or subsequent directives, to be included in any way in the case?”

After being called a copycat and a coward by Apple earlier today, Samsung traded barbs of its own, saying flat out that it didn’t copy, while once again arguing that the lawsuit between the two companies was really about Apple and Google.

“We didn’t copy. Samsung didn’t copy. They weren’t told to copy. The engineers ... they didn’t copy,” said Bill Price, one of four attorneys presenting the company’s closing arguments today. “Every patent which Apple claims is infringed in this case, is infringed with the basic Google Android software,” Price continued. “They choose the Galaxy Nexus of infringing every one of their five patents here. And you heard [Google Android VP of engineering Hiroshi] Lockheimer say the source code was developed by engineers at Google.”

Apple wrapped up its side of a wide-ranging case against Samsung in court today, accusing it one last time of copying five features that it says ended up in millions of phones sold to US consumers.

“We’ve tried to prove every fact from Samsung’s documents,” McElhinny continued. “They show what people at Samsung were actually thinking at the time. They never thought those documents would see the light of day.”

Apple and Samsung will get a little more time in court than originally planned, after a California judge said both sides should be able to present additional evidence clarifying the wording associated with one of Apple’s patents.

Earlier in the day, the two companies concluded the evidence portion of the trial following approximately 50 hours of testimony and cross-examination that was spread across nearly four weeks. But shortly after court kicked off, the US Court of Appeals for the Federal Circuit issued a decision effectively reviving a separate case between Apple and Motorola that involved one of the patents in this case. As part of that decision, the Appeals court said that it did not agree with Apple’s interpretation of the patent claims that were used in that case, something that’s now spilled over to this trial.

Apple and Samsung got their last chance to get testimony in, just days before a jury will begin deciding a case where billions of dollars potentially hang in the balance. The evidence portion of the month-long trial between the two companies wrapped up today with just a single witness from each company. As soon as Monday next week, both sides then present their final arguments, which will be one last time to try and sway the jury. One wrinkle in that plan: a new decision from a Federal Appeals court in a related case between Apple and Motorola that could mean more testimony.

On the docket today were just two witnesses: University of Canterbury professor Andrew Cockburn for Apple, and MIT professor Martin Rinard for Samsung. Both are experts in computer science, and were called upon earlier in the trial to discuss the validity of key patents in the case.

A legal agreement made between Samsung and Google means that the Android-maker is bound to lend a hand in the event that Samsung loses its current battle with Apple. In court today, Apple disclosed some terms of a Mobile Application Distribution Agreement (MADA) between Samsung and Google, including a clause that asks for Google to compensate Samsung.

That agreement is designed to let Samsung offer Android some of Google’s software out of the box, but there are strings attached. And as Apple aims to point out, it also means that there’s some protection involved if Samsung were to be sued.

After weeks of playing defense against five Apple patents, Samsung this week went after Apple with two of its own patents: one it says is infringed when people make FaceTime calls, and another that covers the photo gallery feature found on iPhones, iPads, and some iPods.

In the case of the video patent, Samsung says it’s being infringed every time iOS users begin a FaceTime call over cellular networks, or if they send video messages to one another through the Mail and messaging app. In its opening, Apple referred to the technology as being around from the VCR and Betamax days, a dig Samsung’s witness — University of Illinois professor Dan Schonfeld — said was an unfair comparison.

An Ivy League professor of economics and finance says Apple grossly miscalculated how much its patents are worth when compared with the billions it now wants from Samsung as part of the latest court battle between the two companies. She even used Apple’s own accounting math for iOS releases to help drive home the idea that patents for particular features should cost just a few cents apiece.

In testimony today, Judith Chevalier, a professor of finance and economics at Yale, said the reasonable royalties — the amount the two companies might have agreed on in theoretical negotiations — should be $1.75 per device sold, a figure that’s far lower than the $40 Apple has asked for. Chevalier said she came to that total after analyzing both professional and consumer reviews of the products in this case, breaking down if and when those particular features were mentioned.

With a little more than a week to go in the month-long patent trial between Apple and Samsung, time is running out quickly. Both sides get 25 hours each to call up, and cross-examine one another’s witnesses — and Samsung’s running low. By the end of the day the company had a little under four hours left, time it needs to convince a jury that Apple’s infringing on two of its patents.

Samsung spent much of this week attempting to pick apart Apple’s argument it had copied features from iPhones, iPods, and iPads. That ultimately ended with Samsung’s chief attorney pleading (unsuccessfully) with the judge for more time to make its case. To carve time today, Samsung’s attorneys skipped one of their planned witnesses, read through transcripts of taped depositions instead of playing those videos back, and even aided one of its witnesses in pulling up documents from an evidence binder.

Apple’s iPhone 5 was a “tsunami” that needed to be “neutralized,” according to an internal email written by the former chief executive of Samsung’s American phone company. In a correspondence from Dale Sohn, who was the president and CEO of Samsung Telecommunications America up until August 2013, he suggested the company set up a “counter-plan” to thwart the device, which would go on sale just three months later.

“As you know well, there will be a tsunami when iPhone 5 is coming. This will be happening sometime in September or October,” Sohn warned in a message dated June 5, 2012. “According to CEO’s direction, we have to set up a counter-plan to neutralize this tsunami,” he added, referring to JK Shin, the head of Samsung’s mobile business.

One of Samsung’s top advisors, who is the highest-ranking official from the company to take the stand in the company’s legal spat with Apple, says he doesn’t know what many of the accused features are.

While on stand today, Dale Sohn, the former president and CEO of Samsung Telecommunications America, said he hadn’t heard of background synchronization or quick links, two of the five features Apple’s accused the company of stealing from its products. Those two in particular are worth $27.52 per device, according to Apple’s damages expert, making them the potentially highest-valued patents in this case where Apple’s asking for $2.191 billion.

The lawsuit between Apple and Samsung does not have Google’s name attached to it, but that hasn’t kept the company from being involved. Hiroshi Lockheimer, the company’s current VP of engineering for Android took to the stand today to aid in Samsung’s legal counter-battle against Apple, an effort that focused on the very beginnings of the mobile operating system.

In testimony, Lockheimer described the early days of creating Android at Google, something he said involved a “grueling” work schedule with 60 to 80 hour workweeks. “We’d work really late at work ... all hours,” Lockheimer said. “They continue to be grueling,” he added.

After nearly five full days of court, Apple has rested its case against Samsung, marking a turning point in a trial where billions of dollars hang in the balance. Now it’s Samsung’s turn to go on the offensive and undercut Apple’s effort to paint it as a copycat once again.

In its opening last week, Samsung offered a brief preview of its plan, which will play out over the course of the next two weeks. That includes an effort to downplay Apple’s copycat claims by focusing on features it offered that Apple hadn’t, like larger-screened phones with removable batteries, LTE, styluses, NFC sensors, and certain software features like multi-window applications. Samsung’s also pointed to internal Apple documents and media articles about the success of its marketing, something it’s hoping will sway jurors into viewing its popularity as something outside of these specific software features.

“Greg has been planning to retire later this year after nearly 20 years at Apple,” the company said in a statement. “He has made vital contributions to Apple products across the board, and built a world-class Human Interface team which has worked closely with Jony for many years.”

Christie became an unusually public face of Apple over the past month leading up to the trial between Apple and Samsung. Christie did interviews with both The Wall Street Journal and NPR discussing the creation of the iPhone, rare access doled out by the company, which usually only trots out members of its executive team around product launches. Samsung took offense to the move in pre-trial proceedings, calling it planned and part of Apple’s pretrial strategy.

Apple’s suing Samsung over five patents for $2.191 billion in damages, and proof that one of those was a wanted feature hinges on a 2012 blog post — but not necessarily the comments beneath it. Apple’s using the post, from TmoNews, to show that Samsung got rid of and later re-added universal search in a software update for Galaxy S3 users. And in a filing earlier today, which includes the post, something is noticeably missing: Apple’s lawyers have redacted 10 comments left by users, many of which are critical of Apple, or that happen to mention other lawsuits it’s involved in.

“ismell another stupid lawsuit by crapple,” reads one redacted comment on the post, which is still alive and readily available on the internet, notes FOSS Patents. “Who cares, we’ve had content searches on OS since way before the iPhone did it. Hate this lawsuit garbage,” reads another.

To determine how much individual software features were worth as part of its multi-billion dollar lawsuit, an Apple-paid expert surveyed less than 1,000 consumers about imaginary smartphones and tablets, and included features that weren’t even on trial. Another expert then estimated billions in fees for theoretical negotiations that might have occurred between the two companies, as well as how many smartphones and tablets Apple might have sold in their place.

Apple’s damages figure, which now stands at $2.191 billion, was estimated by Christopher Vellturo, a Massachusetts Institute of Technology graduate who’s spent the past 12 years running consultancy Quantitative Economic Solutions. Vellturo, who testified in a California court today and has been a part of 15 other cases on Apple’s behalf, said the figure is based on the sales of more than 37 million Samsung phones and tablets the company sold in the US between August 2011 through December 2013.

Apple co-founder Steve Jobs had grand ambitions to change the way people use TVs, and a new email correspondence between him and top executives a year before his death shows just how far that vision might have gone. In a 2010 email that goes over the topics for the top 100 — a secret meeting Apple has each year with its top employees to discuss strategy for the coming year — there’s mention of “Apple TV 2.”

“Where do we go from here?” says one of the bullet points, followed by “apps, browser” and “magic wand?” as possible options. However, those suggestions could be just be riffing. In testimony in a San Jose court earlier today, marketing chief Phil Schiller noted that items from this email were just an outline, and not necessarily set in stone for the confab. That includes mention of 2011 being the “holy war with Google.” In this case, the Apple TV 2 presentation is described as an opportunity to discuss the company’s plans to “stay in the living room game and make a great ‘must have’ accessory for iOS devices.”

Internal Apple documents from last April shown in court today paint the picture that the company was scrambling to identify and determine ways to compete with devices running Android, as well as keep sales of the iPhone from petering out amid growing competition.

Pages from a 2014 planning document last April, shown during a cross-examination of Apple’s marketing chief Phil Schiller, noted that smartphone growth rates were declining, something that could impact iPhone sales. Worse yet, the document said, was growing consumer interest for less expensive, larger-screened smartphones, with a headline on the page reading “consumers want what we don’t have.”

It’s not Apple versus Google on the name of this lawsuit, but don’t tell Samsung that. As Apple and Samsung duke it out in a California court yet again, Samsung opened up its case against the iPhone-maker by saying it was indirectly going after Google by targeting Samsung, all in search of profits. That’s not a new idea in this fight, but it’s a stark difference from how Samsung defended itself in the very same court two years ago.

Holding up a Galaxy Nexus — one of 10 Samsung devices Apple’s accused Samsung of infringing — John Quinn of law firm Quinn Emanuel Urquhart & Sullivan said “the accused features on this phone were developed independently by some of the most sophisticated minds in the industry — the company up the road in Mountain View.”

Samsung’s “Next Big Thing” advertising campaign, which frequently cracked fun at people standing in line outside of Apple stores for product launches, drove Apple’s marketing chief Phil Schiller crazy. That’s according to Samsung, which is in the process of drawing out volumes of internal Apple documents as part of its lawsuit with the company that kicked off this week in a California court.

“We will show you internal Apple documents, documents that haven’t been made public before, and showed how Apple was really concerned about competition from Android, and in particular Samsung,” John Quinn of law firm Quinn Emanuel Urquhart & Sullivan, which is representing Samsung in the trial, told an eight-person jury. “This new, edgy marketing strategy ... it drove Apple crazy.”

Apple provided an overarching vision of its legal attack against Samsung today, a case it’s filed to win $2 billion in damages, and get Samsung’s products removed from store shelves. Once again that plan centers around a handful of patents for smartphone and tablet features Apple says Samsung knowingly took and implemented in its own products.

At the heart of Apple’s argument is that the company changed the very face of consumer electronics with the iPhone in 2007, and risked nearly everything in the process. Moreover, Apple says Samsung took the fast track to success, copying many of its features and making billions in the process. That’s identical to the argument Apple successfully pulled off in its first US trial against Samsung, however this new trial involves a different group of products and five other patents, which Apple claims is just the tip of the iceberg of Samsung’s copying.