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Apple vs. Samsung, Day 6: It's not copying, it's 'benchmarking'

updated 04:20 am EDT, Tue April 15, 2014

Samsung offers Google engineers, but Samsung marketers in day of witnesses

Over the weekend, Judge Lucy Koh turned down Samsung's request for a summary judgement in the Samsung-Apple second patent trial, claiming that Apple had failed to prove its case during its presentation. Judge Koh rebuffed the claims and thus the trial continued on Monday, with Samsung still presenting its defense. Continuing its strategy of saying the case is about a dispute between Apple and Google rather than Samsung, the Galaxy smartphone maker put on a stunning seven witnesses -- most of them from the search and advertising giant.

Slide from Apple's presentation
Slide from Apple's presentation

While the jury may or may not ponder why Samsung can't find very many of its own engineers or executives who are willing to testify, the company started the day by calling Bjorn Bringhert, a software engineer with Google since 2009. He told the court about Google's version of the "universal search" patent and Google's search app it created for Samsung when the latter faced a temporary sales injunction for violating Apple's patent. Bringhert said that the replacement search app workaround took the company two days to create, mentioning that 92 percent of Android users have a Google account on their device.

Asked whether Google copied Apple search functions, he replied that they didn't -- and jurors were shown source code that presumably illustrated how Google's search code was different than Apple's. Once the Samsung attorney had finished asking questions, Apple's attorneys asked only a few questions that established that Bringhert did not have any idea how Samsung may or may not use or alter its features, or that his has anything to do with selling smartphones.

Dianne Hackborn was next up, an Android framework engineer who works on features like how to make apps smaller and the clipboard feature. Her purpose was to articulate what goes into the innards of a mobile operating system, and to imply that Google worked independently on its Android software (despite public admissions from various Google executives that the company had to do a U-turn on Android's direction after seeing the iPhone). On cross, Apple's attorney Rachel Krevans got Hackborn to admit she doesn't know what, if any, changes Samsung makes to the Android software, possibly raising the question of why these Google engineers are there.

Hackborn was followed by Dale Sohn, one of the first actual Samsung executives to testify. Sohn was formerly the CEO of Samsung Telecommunications America (STA), but returned to the home office in Korea to become an executive advisor. He had originally testified in Korean at the previous trial, but now felt comfortable enough to testify in English (and wanted to save the company time translating, as it counts against the 25-hour limit each side has for its presentation).

Sohn was president and CEO of STA in 2006, and told the court that at the time his focus was on beating Motorola, which had "innovative" devices for the era like the Razr. During this period, Sohn said he found that the company needed to be "very carrier friendly" in order to sell Samsung devices, turning around what he called "sluggish performance" through subjugating itself to the wishes of the carriers. Through this the company built a reputation of being reliable and easy to work with.

Following the introduction of the iPhone in 2007, Sohn said Samsung focused on carriers other than AT&T, the only one that had the best-selling smartphone. Following the lead of Apple, Samsung initiated a "paradigm shift" to focusing on consumers rather than just carriers. Samsung has often described itself as a "fast follower" company, able to quickly pick up on the work done by others and create its own version while a popular item is still selling well.

Original Android (2006), refined Android (2008)
Original Android (2006), refined Android (2008)

Once again, Apple's Bill Lee began the cross by getting Sohn to admit that he doesn't know much about the patent case, a strange admission from the former CEO of the US branch and ongoing senior advisor. When Lee asked Sohn if software helps drive the value of smartphones, Sohn said it depends on the definition of software, trying to dodge admitting that software is most of what makes a mobile device valuable. He said he was familiar with Apple's "universal search" patent and the technology, but nothing about the "data detectors" or "background sync" patents.

After initially claiming that he had not followed Apple's introduction of the iPhone, Sohn was shown a document that included Sohn's own comments on the iPhone from April of 2012: ""Beating Apple is no longer merely an objective. It is our survival strategy." Lee ended the cross-examination on that note.

Yet another Google engineer, Paul Westbrook, was up next -- a tech lead manager who was there to explain how Gmail's sync function worked. Yet again, Apple's cross consisted of getting him to admit that he didn't know if Samsung altered the functionality in its phones. One might wonder why none of these Google employees don't appear to use any Samsung products.

Apple's strategy of not spending any significant time cross-examining the Google witnesses appeared to fluster the Samsung attorneys, at one point complaining that they were likely to run through their entire list of seven witnesses, along with the usual give-and-take over objections and document disclosures. From an observer point of view, Apple appears to be allowing Samsung to "overload" the jury with witnesses and information in the hopes that it will all blur together, as well as not giving Google a chance to really support Samsung.

The parade of witnesses continued with Todd Pendleton, the chief marketing executive for STA. His purpose quickly appears to be nothing more than giving Samsung's attorneys reason to run a variety of Samsung commercials that he was responsible for. Pendleton spoke very pridefully of the Oscars "selfie" stunt (which saw some backlash after it was revealed to be a paid and arranged stunt, to say nothing of the unmentioned "punk'd the President" selfie stunt), and pointed out that Samsung focuses on a "relentless flow of product," pushing nine flagship phone launches in the time it took Apple to launch three models of iPhone between 2011 and 2013.

Pendleton was asked about his success in attracting more than one million followers to Samsung's Twitter account, and the making of (along with a showing of) Samsung's well-regarded Super Bowl ad. He called Samsung "the most viral brand in the world right now." Pendleton was asked about a Wall Street Journal article that praised Samsung, but was prevented from answering by an objection from Apple. Asked why Samsung has never featured its own "quick links" or "universal search" features in its ads, Pendleton said that they weren't "big purchase drivers."

Apple's Bill Lee again peppered Pendleton with questions to establish that he didn't understand the patents, getting him to admit that he hadn't even read the two Samsung patents for its own version of the features in question. Both Pendleton and Sohn earlier admitted they had nothing to do with the design of the devices Samsung sells, and had to own up to authoring emails on the need to attack Apple -- going so far as to try and disrupt Apple's release of the iPhone 5.

There was a moment of tension following Lee's questioning of Samsung's description of itself as a "fast follower" when Lee asked Pendleton if he knew what TouchWiz was. After pausing for an exceptionally long time, Pendleton correctly identified the name as the software Samsung puts on top of Android to customize it.

On re-direct, Samsung lead attorney John Quinn made the point that some 25 percent of the iPhone's hardware components were, at the time, made by Samsung, asking if this meant Samsung hardware was good enough for Apple to a chorus of objections. This was followed by a video deposition from Apple engineer Thomas Bonura, the man who invented the '647 "data detectors" patent.

Following that, a Borland executive named Lars Frid-Nielsen was put on the stand to testify about its former Sidekick software. Samsung hoped to use his testimony to establish that the concept of detecting information in text, part of Apple's patent, had existed earlier, undermining Apple's patent. However the witness was excused after admitting to Apple's cross-examining attorney that the Sidekick could only detect dialling information, nothing else.

That diversion was followed by Samsung designer Youngmi Kim, testifying with the help of a translator. She worked as a senior User Interface designer, on projects like the unlock screen, Bluetooth integration and carrier issues with user interface design. She told the court that it would make no sense for Samsung to copy Apple designs because the company was trying to "differentiate its products."

The "ripple" unlock seen on the Galaxy SIII and other phones, for example, took her team about 280 hours to create, Kim said. Her contribution to the case was to explain how the notorious Samsung document showing side-by-side comparisons of Apple features and how Samsung should copy them wasn't as damning as it would appear, calling the process of examining Apple patents and trying to improve Samsung's own processes to be more like them as "benchmarking," a process the company employs all the time.

With Kim's testimony, the trial drew to a close a bit early, but will return tomorrow. The time totals for those keeping score show the two companies have now used about the same amount of time. Apple has used 13 hours and 59 minutes for its case, while Samsung will surpass Apple's time tomorrow, as it is up to 13 hours and 44 minutes. Each side is limited to 25 hours total. Samsung is expected to wrap up its main presentation later this week.

by MacNN Staff



  1. prl99

    Mac Enthusiast

    Joined: 03-24-09

    Samsung can say their ascent is because of marketing but if I were Apple I'd counter that marketing statement saying it's a ton of false advertising and go after Samsung that way. Rigged sales numbers are something the SEC needs to investigate as well. I wonder if now that Google has made such a large presence, Apple can go against them as a co-conspirator in the lawsuit without having to worry about Google's lack of direct income from Android. Sue them anyway and get an injunction against the distribution of the software.

  1. slapppy

    Fresh-Faced Recruit

    Joined: 03-23-08

    Benchmarking, the new word for Copying. LOL

  1. ViewRoyal

    Fresh-Faced Recruit

    Joined: 03-11-11

    "Samsung lead attorney John Quinn made the point that some 25 percent of the iPhone's hardware components were, at the time, made by Samsung, asking if this meant Samsung hardware was good enough for Apple to a chorus of objections."

    ... Uh yeah. The 5 Apple patents that Samsung infringed, and is being tried for, are software patents and have nothing to do with hardware components... even though Samsung already lost a previous hardware related case, and owes Apple a billion dollars for infringing the iPhone and iPad hardware designs.

  1. lvavila

    Fresh-Faced Recruit

    Joined: 01-21-11

    Ha-ha, if I were on Treo team I'd sue Samsung for benchmarking its ugly design before the iPhone (Original Android before iPhone 2006).

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