When you have a formula that works, you repeat it. That appears to be Apple's legal strategy in its second big patent infringement trial against Samsung that started here April 1.
The same lead attorney, Harold McElhinny of Morrison Foerster, who opened the case 18 months ago, began with the same video of Steve Jobs announcing the iPhone on January 9, 2007. He showed the same Time Magazine cover that hailed the iPhone as the greatest invention of the year along with other glowing reviews, and he talked about the US patent office using the iPhone in an exhibit of innovation.
He showed the same February 10, 2010 email from J.K. Shin, the head of Samsung's cellphone business, saying the company was facing "a crisis of design... the difference in the UX [user experience] between iPhone and Samsung was the difference between Heaven and Earth."
"U.S. carriers were telling him to make something like the iPhone because the 'iPhone has become the standard,' " said McElhinny, quoting Shin's email. "This is exactly what Samsung proceeded to do," the attorney said.
McElhinny walked through the five key US patents Apple claims in the case that Samsung infringes including the 8,046,721 "slide to unlock" patent.
Then, as he did 18 months ago, Apple marketing chief Phil Schiller took the stand to go over many of these points. It's déjà vu all over again in this San Jose courtroom -- at least that's what Apple appears to hope.
If it's right, its strongly emotional, well-organized appeal may move eight jurors here to award Apple another billion dollars in damages. With more than 200 patents behind the iPhone, Apple could have a pipeline out to iTrial 10 in 2020 or beyond.
The company has an fine case that parallels its fine products. But in the end Samsung will likely outlast the long court process and in this way prevail as it already has in the market. In this way, both companies may win.
Florian Mueller, who tracks mobile patent suits, thinks Apple may have a hard time getting a billion-dollar decision this time.
Apple is demanding an average of $400 million for each patent in a crowded field. It won't get that amount after an appeal, Mueller said, noting one US federal appeals judge called Motorola "crazy" for demanding $300 million from Apple for one of its patents.
So far, Apple has had no wins in "numerous patent assertions in European courts," Mueller added. What's more, the slide-to-unlock patent was found invalid by 10 judges in three countries, he said, citing cases he followed in Germany, the Netherlands and the UK. Indeed, some European judges agreed a little-known Swedish touchscreen phone named Neonone N1m had slide-to-unlock before the iPhone, Mueller said.
On the other hand, Apple has a lower burden of proof in some respects than Samsung who will defend itself in part saying the Apple patents are invalid. Jurors need to find infringement is "more likely than not." They must agree there is "a high probability" of invalidity to throw a patent out. However, Samsung is only seeking $7 million in damages for the two patents it claims Apple infringed.
Then there are the unknowns. Before the trial officially began, two of 10 jurors were excused -- one for sickness, the other for financial hardship. And this time as far as I know there is no engineer/forman and only one techie, a former IBM employee, on the jury.
Judge Lucy H. Koh said the trial should go to the jury by the start of May. A lot can happen in the next 30 days.
— Rick Merritt, Silicon Valley Bureau Chief, EE Times