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Thursday, August 23, 2012, 03:33 pm PT (06:33 pm ET)

Apple, Samsung portray different visions of the future given jury's decision


Samsung: Apple is trying to confuse you

Verhoeven's next major point was that Apple made an "intentional attempt to mislead the jury," by presenting a timeline that indicated Samsung had never developed phones that looked significantly like the iPhone until its "crisis of design" meeting in 2010.

He presented a graphic showing a series of Samsung's internal mockups and charged that Apple "pretended they didn't exist."

"They're trying to confuse you," Verhoeven repeated, noting the Galaxy 7 Apple referenced "is not even an accused product (in this case)."

Verhoeven also dismissed the evidence that Samsung's System LSI division had used confidential knowledge of Apple's business to construct a competitive strategy against the iPhone maker by saying, that "Samsung is a large company with many divisions" and that the document "isn't even from the design or phone divisions."

Apple was "mixing and matching from a completely different part of the company, and saying that's copying by the phone division," Verhoeven stated, representing System LSI as Samsung's semiconductor division that sells chips to other vendors while implying Samsung's phone division isn't an important one.

Verhoeven then briefly recapped Apple's patent claims, generalizing that "there is no bad intent, is no copying," specifically mentioning that in regards to the bounce patent, Apple presented a lack of evidence. "That doesn't infringe," he said, before clarifying, "there isn't necessarily infringement."

Samsung's own patent case yields to a discussion of damages

Verhoeven nearly skipped Samsung's own patent claims entirely in his closing arguments, noting "I don't have time to go through all that with you."

Instead, Verhoeven focused on the damages Apple was seeking, noting first, "we don't think Samsung should pay any damages, we don't think they're liable," before adding, "if you don't agree with us, we need to explain that Apple's demands are ridiculous."

Verhoeven reiterated the idea he had already repeated several times that Apple's claims was too high, incredulously asking, "$2.75 billion? Really?"

Verhoeven cited Terry Musika, Apple's expert witness who testified about his calculations of Samsung's profits on accused devices, referring to the $1.1 million cost of arriving at those nubmers as "how much he was paid for his opinion" on total Samsung's profits.

Verhoeven also took issue with the idea that Samsung's copied features played a significant role in attracting potential iPhone buyers, "just because of bounce back," arguing that only 1 percent of users said they bought a particular smartphone due to specific features.

In closing, Verhoeven contrasted what he called "Samsung's standards essential 'hard core' patents," with what he argued were Apple's less valuable design patents and the huge profit penalty they could demand.

Regarding the awarding of damages to Apple, Verhoeven concluded, "we hope you never get there, but if you do, you got to use your common sense."

Apple's rebuttal: Make your own phones. Compete on your own innovations

Following Verhoeven's initial closing arguments, Apple presented William Lee, who noted "I've been doing this for 37 years" and "I've heard 'ridiculous' and 'misleading' more times in this trial," he said, "than at any other point in my career."

Lee told the jury "make your own judgement on who shot straight," stating that if you have a weak case, you "attack the other clients, attack the witnesses, and attack the other lawyers. And that's what Samsung has done."

Rather than trying to stop Samsung from selling smartphones, as Verhoeven suggested, Lee said Apple just wants other companies to "make your own phones. Compete on your own innovations."

While Verhoeven argued that litigation and patents would end competition, Lee said Samsung's attorneys were "trying to frighten America," and argued that IP laws protect investment.

Responding to Verhoeven's comment that open competition had resulted in the prosperity of Silicon Valley, Lee pointed out that "all of the technology in Silicon Valley is protected by patents."

Lee said the American patent system is necessary to "protect our investment in innovations, adding, "Because if we don't, we won't have people like Apple spending five years in a room coming up with a phone that revolutionizes the world."

Apple belittles Samsung's outrage over billions in damages

"How many times have you heard him talk about $2.7 billion?" Lee asked the jury. " They copied us and made $8 billion in revenue. Now they don't want to pay a penny. Do they get a get out of jail card for free?"

Lee said Samsung's graphic depicting its pre-iPhone mockups "is not a historical document, it's what lawyers made," adding, "if Samsung had all this, why was there a 'crisis of design'? A 'difference between heaven and earth'?"

Lee repeated the chronology theme raised earlier by McElhinny, saying, "Apple took five years to bring this revolution, Samsung took three months to copy it."

Apple assails Samsung's "dusted off" patent claims

Lee then noted that Samsung's Verhoeven "devoted about 5 minutes [in his closing arguments] to Samsung's patent infringement claims. They never said a word about these patents until Apple said they were copying."

Lee then reiterated, "Samsung tried to compete with its own designs, between 2007-2009" but in 2010 "had a 'crisis of design' and did something in three months."

He added, "All the business it was getting from Apple was critically important," so Samsung decided to "fly under the radar so it could ambush its partner with a knockoff phone," and then "dusted off these patents," which Lee said "describe old technology that Apple doesn't use, and not even what Samsung uses."

Lee accused Samsung of intentionally breaking the rules of the 3G standards body in not declaring its patents as required until the standard was set, and cited testimony from a Samsung engineer saying that "playing by the rules would be stupid," but Lee said this is "not the way our system works."



"They're asking you to decide Apple infringed, while [Samsung's] patent inventor doesn't even know what it does," Lee charged, adding that in "100 pages of side by side comparisons," with Apple's devices, Samsung "didn't ask inventors of their own patents," for help in solving the 2010 'crisis in design.'

Lee also challenged Verhoeven's comment that Apple paid its damages expert $1.1 million "for his opinion" on Samsung's profits, noting that Samsung paid one of its witnesses a million dollars just for his time to appear.

Lee also took issue with Samsung "double dipping" in patent exhaustion by claiming infringement by Apple on the use of Samsung's previously licensed chips from Intel, and said Samsung's argument that its 2.4 percent royalty demand for standards essential were Fair Reasonable and Non Discriminatory
(FRAND) were not FRAND at all because Samsung "has never been paid a penny for any of its standards essential patents."

Apple argues for the rule of law

Samsung "can't come in and walk all over our antitrust laws and lie to standards organizations" Lee insisted, saying that while Samsung has charged that the case is "all about competition," and that "Apple's trying to own the color green and the Ma Bell phone icon," the trial is really about the fact that "Apple wants to compete fairly and squarely with innovation and products."

With six minutes left on Apple's clock Lee handed off closing arguments to McElhinny, who implored the jury "don't let someone take $8 billion from us," and asked them to "upend Samsung's cynical strategy of copying other people's stuff" by taking the profits away from them. The jury's choices will "determine the rules of competition for a long time in this country," affecting the "people who make investments and follow the rules."

McElhinny added that the jury isn't just deciding who wins most of the case between Samsung and Apple, but that "Samsung wins if you compromise on damages," reiterating that the company that "spent $1 billion in advertising" will "not change their way of operating if you slap them on the wrist."

Samsung's rebuttal: nothing illegal happened, let us continue to compete freely

Returning to rebut Apple's arguments with just 14 minutes on the clock, Verhoeven argued that there was "no evidence Samsung engineers intentionally deceived standards bodies," saying that during the standards process, "you don't know if your [patent] applications will be granted, you don't know if it will be essential."

Verhoeven also took issue with Apple's argument that its use of Intel chips made Samsung's patent allegations a case of "double dipping" in patent exhaustion. Because Intel's chips were designed in Germany and build into Apple's products in China, the transaction between Intel and Apple was not American, despite the invoices Apple presented between it and its nearby Silicon Valley neighbor Intel.

"Let's let Samsung compete freely in the market place," Verhoeven said in conclusion.

The jury is now considering the weeks of evidence they were presented in the trial, and must arrive at a consensus over which devices infringe which patents, and the amount of damages each party should be awarded.