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Dorothy M. Atkins @doratki
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Hey everybody, I'm in San Jose today covering the third trial in Apple v. Samsung to determine how much Samsung owes Apple for infringing 5 design and utility patents for its smartphones. Jury selection is in progress. Stay tuned!
FYI - here's my most recent story on Apple and Samsung's fight over jury instructions. This case has quite the history, so let me know if you have any questions!
Fun pre-trial drama: Someone in the courthouse sent the 74 prospective jurors to the wrong courtroom. Judge Koh is not pleased.
Judge Koh apologized to the 74 prospective jurors for the late start, but she ensured them that the rest of the trial will be efficient.: "We’re trying to get this case completed this week."
Judge Koh tells prospective jurors they can't talk about the case or their personal gadgets: "When you go to the bathroom that means you can’t talk about what kind of phone you have or what kind of tablet you have."
Judge Koh just excused a potential juror who's a Google electrical engineer who works on smartphones. But she declined to excuse another Google employee who's not an engineer.
A potential juror said he owns a bunch of Apple shares, because his mom worked there for 31 years. The judge excused him. And now a bunch of other jurors are saying they or their spouse owns Apple shares. (Lucky them!)
The judge just excused two more jurors with Apple shares, and two jurors whose spouses work at Apple. #SiliconValleyproblems
The court is taking a 10-minute break after excusing a handful of jurors who own Apple shares. INTMT Apple's stock inches ever closer to hitting the $1 trillion market cap.
We're back at it. Another juror just got excusing after telling the judge he's "not a big fan of Apple."
And Judge Koh refused to excuse a former Apple employee who worked on Apple's iOS software from 2010 to 2012. He says he can be impartial. Samsung's atty says they're fine with it, for now.
Judge Koh has whittled down the 76 prospective jurors to 36. She asked them if they've ever heard anything about a dispute between Apple and Samsung. More than a dozen jurors raised their hands.
74* not 76.
Judge Koh is questioning prospective jurors individually on what they've heard about the Apple v. Samsung. She just excused one juror who said he doesn't have an opinion about the case, but he generally doesn't think patents are valid.
Court is taking a lunch break. Back in an hour with more voire dire. Doesn't look likely that we'll get to opening arguments today.
Funny, this potential juror did not raise his hand when the judge asked the jurors if they have heard anything about Apple v. Samsung. (Apple's attorney pointed that out.) He'll be individually questioned about it after lunch.
And we're back from lunch. A juror says he heard about Apple suing Samsung a few years ago for "stealing its - for lack of a better word - inventions." But he said he thought that the case was over. (If only!)
Judge Koh just refused Apple's request to excuse a juror who said he has "no great love for Apple - or Samsung either for that matter." He said, "they’re just two big companies going at each other. I just don’t have a great love for big companies, I guess."
Judge Koh also is keeping a juror - for now - who says she and her husband fight a lot about which smartphone is better. She has an iPhone, her husband has a Samsung phone.
Judge Koh has excused a juror who's in IT who said she has a "personal dislike" for Apple. The juror said she's been "personally burned" by Apple before, when it wouldn't reimburse her for a defective computer that she spent a lot of money on.
The last juror questioned individually said he doesn't have a smartphone and he doesn't like them, but he said he think he can be fair in this case. Judge Koh is keeping him in the jury pool for now. We're down to 33 prospective jurors.
A potential juror just said she dated an Apple designer 4 years ago. Judge Koh asked if she has any bad feelings towards him or the company. She responded, "maybe him, but not towards the company."
Judge Koh excused a prospective juror who is a software engineer at Google after he said he used to go to church and have lunch with one of Apple's witness. Samsung is upset. But Judge Koh said there are "many many reasons" to believe the men are friends. We're down to 31 jurors.
Multiple potential jurors have said they have close friends who work at Apple. But many of them say they can be impartial in Apple v. Samsung.
Judge Koh is now asking each potential juror to name the brand of computer, tablet, smartphone and any other personal devices that they own. She warns jurors this is "going to take some time."
Almost every prospective juror owns at least one Samsung product - usually a television - and nearly all of the jurors own multiple Apple products.
Prospective jurors are giving their name, occupation, hobbies and relationship status. After two jurors said they were single with no kids, Judge Koh noted that she's had two jurors get together after serving on a trial.
Judge Koh asked the jurors to stay late today so they can finish jury selection. Opening arguments will happen sometime tomorrow.
Samsung's attorney Bill Price of Quinn Emanuel Urquhart & Sullivan LLP is asking jurors if they ever stood in line for an Apple product. Only one juror said she waited in line for 4 hrs for an iPhone, before she was told Apple ran out of it.
Price asked potential jurors if they have a "gut feeling" that $24 million sounds too low for what Samsung should have to pay for infringing Apple's patents. After one juror responded that it seemed low, Judge Koh told Price the question was inappropriate for voir dire.
Just a note - it's unclear how much Apple will be asking the jury to award in damages, but it's likely in the hundreds of millions. Now we know Samsung will be arguing it should be closer to $24 million.
The panel of eight jurors have been selected. The jurors include a school bus driver, a Barnes and Nobel manager and a bookkeeper. The former Apple worker didn't make the cut, nor did the guy who said he has "no great love for Apple."
My favorite thing about today is that the school bus driver made it onto the final jury panel.
Morning! Here's my recap on jury selection in Apple v. Samsung Part III. Opening arguments start in about an hour.
There's standing room only in Judge Koh's courtroom. A lot of folks showed up to watch opening arguments.
Judge Koh has wrapped up jury instructions. Each side is getting 45 minutes for opening arguments. First up is William F. Lee of WilmerHale for Apple.
Lee tells jury Samsung made $3.3 billion in revenues from three of Apple's design patents, and $1 billion in total profits, and that doesn’t include Samsung's "willful active infringement " of Apple's two utility patents.
Lee asks jurors to remember what cellphones looked like in 2006. When we think of cellphones we often think of devices that look like iPhones, he says. But before the iPhone, cellphones came in all kinds of shapes and sizes, with "a lot of buttons," he says.
Lee is describing each of the 5 patents at issue. Three are design patents covering visual features of smartphones like its icons, silver rim and glass front face. The other two are utility patents covering double-tap zoom feature and a scroll "bounce-back" feature.
Lee says after the iPhone was released in 2007, Samsung lost half its smartphone market share and redesigned its phones to mimic the iPhone's design.
Lee says Samsung sold 18 smartphone models for 2 years, and kept infringing after Apple asked it to stop. "Design is what tied it all together," he says.
Lee announces Apple is asking the jurors to find that Samsung owes over $1 billion for infringing three design patents. "Is it a lot of money? It is sure," he says. But putting it in context, Samsung sold millions and millions of infringing phones, he says.
Apple only wants $5 million for Samsung's infringement of its utility patents, since "these were not features that brought the phone together," Lee says. Apple's opening arguments wrapped - Samsung's up next!
Quick recap: Apple wants Samsung to pay $1.005 BILLION for infringing its smartphone patents. Yesterday, Samsung's attorney suggested it should only have to pay about $24 million.
John B. Quinn of Quinn Emanuel Urquhart & Sullivan LLP is about to deliver opening arguments for Samsung.
And I just caught a guy recording the jury walk in the courtroom with his cellphone. Not cool.
Quinn holds up three pieces of an iPhone and tells the jury Samsung's infringement is limited to those components. "Apple is certainly not entitled to profits on the whole phone as Apple would like you to believe," he says.
Judge Koh has made the jury leave the courtroom twice during Samsung's opening argument. The first time was over Apple's objection to Samsung referring to certain pre-2010 phone models.
Now, Judge Koh is taking issue with Quinn's reference to verdicts in other cases. She has asked to see Samsung's opening statement and said she thought she prohibited either party from mentioning the findings in this trial. The jury's not in the room.
Judge Koh allowed Quinn to mention certain previous verdicts, but she warned both parties she doesn't want to have to pause openings again to take up objections. "We can work this out now, so this is the only interruption," she says.
Judge Koh tells the attorneys she limited the number of slides they can use because in the first Apple v. Samsung trial, Samsung submitted 500 slides and Apple objected to them all. It created an incredible burden on the parties and the court, litigating 500 slides, she said.
Judge Koh also tells Samsung's attorneys she's "disappointed" she refused to let Samsung mention prior verdicts, and Samsung has done it in openings anyway. "I would prefer if we would not get into what the prior verdict was."
Jury's back in. Quinn's back to arguing differences the between Samsung's infringing phones and non-infringing phones are "subtle."
Quinn says Samsung's smartphone market share jump in 2010 was caused by its switch to using Google's Android operating system, its larger screens, its 4G capabilities and the fact that consumers could use any phone carrier and not just AT&T.
Quinn says Apple's expert miscalculated damages by excluding certain costs and she should have only attributed the damages to specific components of the phones. Quinn says Samsung is only liable for $28 million for infringing three of Apple's design patents, not over $1 billion.
Quinn wrapped Samsung's closings. Apple's called its first witness: Greg Joswiak vice president of product marketing at Apple.
Joswiak, who's been with Apple for over 30 years, testified that Apple spent over a billion developing the iPhone, taking on risks by entering the cellphone market. "We really were betting the company," he said.
Joswiak said Apple would never sell is patented iPhone design components separately, just before trial recessed for an hour lunch. They'll be back at 1:05.
They're back from lunch. Joswiak says Apple focused on marketing the iPhone as "the hero." By the end of 2010, he said Samsung was Apple's largest competitor and they thought Samsung ripped off its design. "We were pretty angry about it," he said.
On cross, Samsung's attorney showed Joswiak a Samsung phone with a slider case and asked if Steve Jobs would "roll over in his grave" if Apple designed that phone.
"I don’t want to testify what Steve would do, since he has passed away," Joswiak replied. "It would be rude."
Apple's VP of Industrial Design Richard Howarth took the stand. He said his team made 100s of models in 4 years to produce the iPhone. When Samsung came out w/ its phone, "it felt like it was an obvious rip off to all of us," he said. "It was just blatant."
The jurors left the room for a quick break. A dispute between the attorneys came up over Samsung referencing patents that Apple wanted excluded from trial. Judge Koh seems irked.
Judge Koh said Samsung submitted briefs with a "huge" list of patents, that she wants narrowed. "I don’t want any sandbagging - I don’t want any hide the ball," she tells counsel.
I'm taking a Twitter break to write, but I'll be back at it tomorrow. Stay tuned - closings are expected for Friday, so this trial is super short.
Here's my recap of opening arguments in Apple v. Samsung part III:

Samsung Owes Apple Over $1B For Ripping Off IP, Jury Told
And we're back! Day 3 of the 5 day Apple v. Samsung trial is about to kick off. The courtroom is still pretty full. We're waiting on the jury.
Judge Koh is back, and she says a juror was exposed to information last night. She's being questioned.
The juror says her husband turned on the TV this morning and heard on the news something about the Apple v. Samsung "billion-dollar case." Her husband asked her if she was a juror in the case, but she says she turned around and walked out of the room.
Neither party has an issue with keeping her on the jury. There are 8 jurors, but the judge notes they have a little cushion, and could go to 6 jurors if they need to.
Apple's case in chief has resumed with Apple's expert Alan Ball testifying on how Apple's black front-face design patent covers Samsung's entire phones. "I think it’s very difficult to use the phone without seeing the screen," he says.
Ball says the physical relationship between the parts of Samsung's phones that practices Apple's patented designs "aren’t really separable in a meaningful way."
Ball says you can buy just about anything on the Internet, but that isn't convincing evidence that Apple's design patents are limited to certain components of Apple's iPhones.
Ball says Apple's design patent covers the entire smartphone. He explained anything that gets put together can be taken apart, but you have to look at whether the product was intended to be taken apart.
Samsung's attorney Bill Price of Quinn Emanuel is now cross-examining Ball. He tells Ball he can't legally start off by assuming the entire product is the article of manufacture. Ball says he doesn't understand the question.
Price is pushing Ball on whether one of Apple's design patents covers the entire smartphone. Here's a picture of the patent at issue (taken from the complaint). The patent covers the shaded area of the phone on the left. Ball says it does, based on a 4-factor test.
There's been an objection. Judge Koh made the jury take a break and the witness leave the room.
Judge Koh says Samsung's counsel complained to a court reporter yesterday about the judge's timekeeping. "You can check me by checking the transcript," she tells counsel. "Next time do it to me. Don't do it to Ms. Mason while I'm here and we can have it on the record."
Apple objected to Samsung showing a slide at trial with pictures of its non-infringing smartphone, which Apple says Judge Koh excluded. Judge Koh says Samsung's counsel has made the demonstrative "on the fly" and is "sandbagging" Apple's counsel.
Judge Koh asked Samsung's counsel to provide a list of new demonstratives they made "on the fly" so she could look them over together. But after Samsung's attorney challenged her approach, she cut him off and said "let's just do it in front of the jury." She seems uh annoyed.
Judge Koh explains she wanted to streamline Apple's objections to Samsung's new demonstratives by ruling on them all together. But "we’ll just do it every time" before the jury, she said. They're taking a 10 minute break before the jury is back.
We're back. Ball takes the stand again, and Price is questioning him on whether there's a prominent difference between Samsung's non-infringing Galaxy Ace smartphone and its infringing Galaxy S i9000. Ball says he wasn't asked to do an infringement analysis.
The parties finished examining Ball for now. Next up is Apple's expert Dr. Susan Kare, who's a graphic designer.
Kare designed the first icons and graphics in first Macintosh computers. She left Macintosh in 1986 with Steve Jobs, and since she's designed thousands of icons for major tech companies, including Facebook and PayPal, she says.
Kare says there is "no question" that Samsung's smartphones use graphical interface described in Apple's D'305 design patent. Here's a picture of the patent she's talking about next to Samsung's smartphone interface.
On cross, Samsung's attorney John Quinn of Quinn Emanuel is trying to get Kare to admit that Samsung's phones are made up of many articles of manufacture. Kare says the hardware is outside of her expertise, but she says phones are comprised of many "parts with parts."
The jury just took an hour-long lunch break. After they left, Judge Koh told the attorneys to ask their clients if they would participate in an alternative dispute resolution proceeding after there's a verdict. She said "maybe I'm wasting my breath," but it's worth a try.
Back from lunch and Samsung's counsel is examining Kare on Apple's patent that describes its smartphone graphic user interface. He asks her if she thinks Apple owns the concept of having a colorful array of icons on a grid. She says she can only speak to what's in Apple's patent.
The parties finished examining Kare for now. Apple has called U. of Toronto's computer science professor Ravin Balakrishnan to testify on user interfaces.
Balakrishnan testified on Apple's utility patent covering a "bounce back" scroll feature, which he says Samsung's phones use. Another U. of Toronto computer science professor Karan Singh is now on the stand, testifying in the other utility patent covering a tap and zoom feature.
The parties finished with Singh and the jury just took a break. But Judge Koh told Samsung's attys they had "invited nullification" of a prior verdict in their line of questioning. She'll admonish them in front of the jury if they do it again. "It is very improper," she says.
CPA Julie Davis is now taking the stand to testify on how she reached the billion-dollar damages number, which she says Samsung owes Apple for patent infringement.
Davis says there are 15.3 million Samsung smartphones that infringe Apple's patents.
Davis says Samsung made $6.3 billion in total revenue from selling 15.3 million smartphones that infringe all 5 of Apple's design and utility patents. Of that, Samsung made $3.3 billion in revenues from phones that only infringe its 3 design patents.
Davis says Samsung's accounting spreadsheet with data on Samsung's smartphones revenues changed by $1.3 billion after Samsung employees were deposed. "That was concerning to me," she said.
"If this information was coming directly out of Samsung one would think the numbers would be the same. but they weren't," Davis says.
Davis says Samsung should have to pay a reasonable royalty rate of $2.02 per smartphone for infringing one of Apple's utility patents, for a total of $5.325 million. The other utility patent-in-suit is covered by the total profit remedy, she says.
Jury's taking another quick break. Samsung's counsel tells Judge Koh they plan to make an oral motion for judgment as a matter of law after Apple rests its case in chief, which should happen sometime tomorrow morning.
Here's my recap from the third day of the Apple v. Samsung trial yesterday:
Day 4 of the 5-day Apple v. Samsung trial just kicked off. Apple's damages expert, Julie Davis, is being cross examined by Samsung's counsel, Bill Price of Quinn Emanuel.
Davis says she hasn't calculated how much of Samsung's profits would be attributed to portions of their smartphones. Price then wrapped with Davis and Apple has rested its case in chief.
Samsung calls its first witness: Drew Blackard, Samsung's senior director of product marketing.
Blackard says Samsung increased the amount it spent on advertising its Galaxy smartphones from $25 million in 2009 to over $100 million in 2010.
Blackard says in his experience consumers don't buy phones based on their rounded corners, their glass screens or bezel, which are features covered by Apple's design patents. Apple's attorney William Lee of WilmerHale is now cross-examining him.
Lee asks Blackard what Samsung's revenues or market share would be for the bezels, glass-front faces and display screens of its smartphones. Blackard says he doesn't know.
Lee presses Blackard on whether Samsung's attorneys gave him 3 parts of Apple's smartphone on the same day he was asked to determine what constitutes an article of manufacture. Blackard says they did.
The parties are done with Blackard for now. Samsung calls its next witness, Jin Soo Kim, who is testifying through an interpreter. Kim is one of Samsung's principal industrial designers, who works on the exterior design of smartphones.
Soo Kim says he was never instructed to copy Apple's iPhone and was told by management if they focused on what the phone carriers say, the company would go bust.
The jury took a quick break, but during it Apple's counsel William Lee asked Judge Koh if they could bring up a jury finding of Samsung's willful infringement during cross examination of Samsung's witnesses.
Lee argued Samsung's counsel have repeatedly said some of its phones don't infringe to "undermine" a prior jury's infringement verdict. Lee said it's prejudicial to Apple if they weren't allowed to talk about the willfulness finding. Judge Koh said she needs to think about it.
The parties finished examining Soo Kim. Samsung calls Dongwook Kim to the stand, a principal professional at Samsung who handles procurement activities related to product displays. He's also testifying through an interpreter.
Dongwook Kim testifies that Samsung keeps track of smartphone components, like their glass faces, and their individual prices. Apple's counsel Nathan B. Sabri of Morrison & Foerster LLP is cross examining him on Samsung's spreadsheets now.
Sabri is asking Dongwook Kim whether Samsung sells infringing phone components or parts to consumers directly. Dongwook Kim replies that Samsung doesn't sell them directly to consumers, but it sells them for service purposes like phone repairs. And that wraps his testimony.
Samsung's VP of Supplies and Logistics, Tim Sheppard, has taken the stand. He's testifying on Samsung's profits and losses between 2010 and 2011.
Sheppard says Samsung Telecommunications America spent over a million per year on making glass faces to repair broken smartphones. He said the glass faces cost $3-4 dollars to make.
Judge Koh called an hour-long lunch break. Jury left the courtroom, and the judge is asking Samsung's counsel why they changed the witness list at 11:30 today while they were in trial.
Samsung dropped 2 witnesses, saying they couldn't stay in town. Judge Koh says she wants to see at least one of their plane tickets, boarding pass and time the ticket was purchased. The judge said she doesn't think there's a remedy, but wants to see if Samsung's playing games.
Judge Koh appears irked Samsung dropped witnesses in the middle of the Apple v. Samsung trial. "We can play these games if you think it is necessary for your case, which I guess you think you do," but its "unfortunate," she tells Samsung's counsel.
Apple's counsel suggests Judge Koh gives Apple more time to argue, since they had alloted time to examine Samsung's now-dropped witnesses, but she says she doesn't think there's a remedy. They'll be back in an hour after lunch.
Samsung's two dropped witnesses: Samsung assistant manager of finance Kyuhyun Han and Samsung's SVP, General Manager Justin Denison. Samsung says they left town. Judge Koh said she wants to see Denison's boarding pass and the time he booked his ticket.
We're back from lunch. Judge Koh denied Apple's request to mention Samsung's willful infringement at trial. She says the probative value is low and the prejudicial value is high, so she's not allowing it at this time. The jury's back and Apple's cross-examining Sheppard.
And the parties wrapped quickly with Sheppard. Samsung has two witnesses left: user interface designer Sam Lucente and damages expert Michael Wagner. Lucente is taking the stand.
Lucente says he visited Korea, took apart Samsung's products and studied the "evolution of smartphones" to reach his conclusion that Apple's 3 design patents are limited to the components of the smartphones and don't cover the entire phone.
Lucente says the typical smartphone is not "monolithic" and it exercises 200,000 patents. I've heard this statistic before - I'd love to know where it comes from.
The parties finished examining Lucente. Samsung's last witness, its damages expert Michael Wagner, is on the stand. He says he's billed Samsung more than 8,000 hours since he started working on the case in 2011.
Wagner says Apple's expert miscalculated Samsung's smartphone profits by excluding operation costs, like marketing, research and development. She said it's around $1 billion, but Wagner says it's actually about $370 million.
Morning everybody. The parties are expected to give their closing arguments today in Apple v. Samsung. Stay tuned! In the meantime, here's my recap on the courtroom happenings yesterday:
Also, Samsung's counsel plans to argue a motion for judgment as a matter of law this morning, without the jury present. That'll take some time. They seem to be making the motion primarily to preserve the argument for appeal - very unlikely Judge Koh would grant it at this point.
The jury's back in the courtroom and Samsung's damages expert, Michael Wagner, is on the stand. He's Samsung's last witness.
Wagner says there are ~350 components in each Samsung smartphone and Apple's design patents only covers 3 of those components. Samsung's profit on the phones is ~$371 million, so profits on the patented components comes to $28M, he says. (Apple disagrees with all of those stats.)
Samsung finished direct. Apple's counsel William Lee of WilmerHale is cross-examining Wagner on his testimony.
Lee is pushing Wagner on his testimony. So far, he's gotten Wagner to admit that the prior jury found Samsung's smartphones, not the bezels and glass screens. infringed Apple's patents.
Lee also got Wagner to say since 2011 he has had a lot of difficulty getting information from his own client Samsung on a timely basis.
Wagner said he deducted all ~$270 million of Samsung's R&D costs from its revenues but none of those expenses can be attributable to specific infringing smartphones. Same goes for Samsung's marketing and administrative expenses. "I don't have that level of detail," he says.
If Wagner didn't cut out Samsung's R&D and general admin. costs from his damages analysis, Samsung would owe Apple "somewhere in the ballpark" of $770 million, Lee asks Wagner. After wavering, Wagner replies, "certainly."
Lee asks Wagner if he thinks Apple should get nothing from Samsung for infringing 1 million infringing smartphones that resulted in hundreds of millions of dollars of revenue. Wagner agrees, saying Samsung didn't make a profit on those models.
On redirect now, Samsung's counsel Bill Price of Quinn Emanuel asks Wagner about his billing rate and which damages expert gets paid more.
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