Apple v. Samsung redux: Back in the habit

If there's a lack of innovation anywhere in Apple v. Samsung, it can be found in the mudslinging going back and forth between lawyers in a San Jose courthouse.
Written by Rachel King, Contributor

No, it's not Freaky Friday.

Apple and Samsung met back up again in court for a redo of their 2012 trial, which is shaping up to be the same thing except with double the drama and mudslinging.

Sure, some of the devices in question (i.e. iPhone 5, Galaxy S3) are different. But the arguments on both sides remain the same -- albeit with a slighter twist of the knife on Samsung's part against Android's maker, Google. (More on that below.)

To recall, Apple won the first trial. But proceedings since then have unraveled into a mess, up to the point in which Judge Lucy Koh was even pressed to revise damages incurred due to some poor math skills displayed by the first jury.

Samsung hasn't forked over a penny yet -- despite that same hoax truck-full-of-pennies/nickels/shillings story that does the social media rounds from time to time.

For a deeper dive into what is at stake this time, CNET has a great primer on the events leading up to Monday, March 31.


Looking back at the trial proceedings since then, here are some of the highlights that can be extracted from Week 1:

Monday: Reconvening at the U.S. District Court in San Jose, the first day was consumed by jury selection. A pool of approximately 140 candidates was whittled down to just 10 (six women and four men), who will be tasked with surviving what is projected to be a month-long trial. Based on the results, legal teams on both sides curated the most non-techie ragtag team of jurors possible (at least by Silicon Valley standards). A few of them even still use flip phones!

Tuesday: Attorneys for Apple and Samsung delivered their respective opening statements. Despite it being April Fools' Day, it became clear quickly that, no joke, the arguments are almost exactly same as before. (Talk about a lack of innovation.)

In Apple's corner, you have Harold McElhinny of Morrison & Foerster charging that Samsung blatantly copied the iPhone because the Korean tech giant "simply did not have a product that could compete successfully against the iPhone." McElhinny followed up by predicting Samsung would simply resort to the defensive line that Apple is really after Google's Android mobile operating system in this case.

On Samsung's side of the ring, John Quinn of Quinn, Emanuel, Urquhart, Oliver & Hedges basically followed through on that prediction, characterizing Apple's patent infringement suit as "an attack on Android."

But Quinn took that approach to a whole new level, leaving room for predictions about how long it will be before we see the real-life Law & Order iteration we all want to see: Apple v. Google.

Here's a snippet from the courtroom:

[Quinn] held a Nexus device and said that "not a single software feature in this Nexus phone...was conceived by Samsung, was developed by Samsung, or was coded by Samsung."

"Not one of the accused features on this phone, which brings us all here today, was designed, much less copied by anyone at Samsung," Quinn said. "The accused features on this phone were developed independently by some of the most sophisticated and creative minds in the industry, the software engineers at Google."

Leading off on the witness stand was Apple's marketing chief and keynote staple Phil Schiller, rehashing the script that reads how Samsung's alleged patent infringement has "caused damage for Apple in the marketplace."

There are plenty of metrics pointing one way or another, depending on the story you want to tell. According to IDC figures in January, Samsung led smartphone shipments in 2013 with 31.3 percent of the global market. Apple trailed in second with 15.3 percent.

Domestically, it's another story as ComScore reported in March that Apple came into 2014 leading the smartphone vendor charts with 41.6 percent of the U.S. market share. Samsung settled for silver with 26.7 percent.

Also, two jurors already dropped out, bringing the remaining tally to just eight. It's panning out to be a real-live Hunger Games down there.

Wednesday & Thursday: Recess.

Friday: Picking up from where we left off, Schiller retook the stand. Most of the questions directed at the veteran Apple exec circled two corresponding subjects.

The first was Schiller's recollections regarding how Apple has "struggled" with iPhone advertising, playing into the broader topic of how marketing has figured into the smartphone wars.

During cross-examination, Samsung lawyers presented a number of emails intended to serve as evidence that Apple executives were plain frustrated they were falling behind Samsung as far as branding and advertising was concerned.

Schiller rebuffed this as well as a Wall Street Journal article suggesting that Apple isn't "cool" anymore -- Samsung is.

Much like the WSJ piece, another document that keeps popping into conversations on the stand is an October 2010 email from Apple co-founder and former CEO Steve Jobs discussing the coming "holy war" against Google.

That funneled into the second topic, which is in fact the primary one being it is becoming more clear-cut by the minute that Samsung's whole defense rests on asserting Apple's real beef is with Google, hinting Samsung is just an easier target.

Although he concluded his testimony, there is always the chance that one side or another could call Schiller back to the stand. Schiller was followed by his colleague, Apple engineer Greg Christie, one of the first iPhone engineers as well as the man credited with inventing "Slide to Unlock."

Ahead of the lunch break, much of Christie's testimony was background filler about how the iPhone came to be, including the intense pressure Jobs put on the team when discussing the project (then codenamed "Purple") in locked-down, "windowless" meeting rooms.

For Apple's part, Christie's testimony is also meant to convey to the jury (still at eight people, as far as the outside world is aware) about how much innovative brainpower (not to mention risk) went into crafting the first iPhone. This line of thought is also meant to imply Samsung didn't go to nearly this much effort for its respective catalog of smartphones, instead just looking to what Apple did first.

Christie is not subject to recall. Speeding things right along, Apple called computer scientist Dr. Andrew Cockburn as an expert witness, who acknowledged when asked that Cupertino is paying him just shy of $500 an hour for his contributions.

More chatter about the value of the patents in question ensued.


Like many of the high-profile intellectual property trials inundating federal courthouses in and around Silicon Valley over the last few years, there is a dedicated pool of tech journalists covering live each day -- many of whom are frequently live-tweeting updates.

If you don't have the time (or patience) to follow along each day, check back here on ZDNet next Friday for another installment recapping the week in Apple v. Samsung, part deux.

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