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Apple vs Samsung, Day Seven: You can't infringe an invalid patent

updated 02:47 am EDT, Wed April 16, 2014

String of Samsung witnesses find that Apple's patents are all invalid

Not only did Samsung not infringe on Apple's patents, a parade of witnesses for Samsung told the jury today in the Apple-Samsung trial, those patents aren't valid even if Samsung did copy them. With some help from Apple's very light cross-examination, Samsung again flew through a lengthy list of experts who testified on the relative worthlessness of Apple's patents for "data detectors" (also referred to as "quick links"), universal search, autocorrection and the "slide to unlock" concept.

The first witness of the day was computer science professor at the University of North Carolina-Chapel Hill, Kevin Jeffay. He told the court that Apple's '647 "quick links" patent was not the same thing as Samsung's implementation of the same idea, since Apple's patent calls for the use of an "analyzer server" to perform the action, while Android's implementation does its detecting locally. In addition, the "Jellybean" version of Android doesn't enable selection of detected text and thus doesn't infringe, Jeffay said, not mentioning whether earlier or later versions of the Android may infringe Apple's patent.

This was a point picked up by Apple attorney Rachel Krevens, who asked about other versions of Android and whether they infringed. She also reminded Jeffay, who was paid $550 and hour for his work, that Samsung was the defendant in the trial, not Google, and got Jeffay to admit that he was not aware whether Samsung made any changes to the code for their implementation. Because of the technical nature of his testimony, Krevens was on the stand for over two hours, one of the longer sessions for a witness and what turned out to be the longest testimony of the day.

Founder of the Internet Archive Brewster Kahle was brought to the stand next, since he invented the Wide Area Information Server (WAIS) technology -- a way to search local data on one's computer in a similar way to how search on the Internet works. Kahle was brought in to undermine the value of Apple's "universal search" patent, which searches both the Internet and local drives to find items. A video of Kahle introducing WAIS search in 1991 is shown. On cross-examination, Kahle claimed he didn't know how many patents he held (15), in response to a question about whether he values patents -- an answer seemingly deliberately designed to undermine the importance of all patents, including his own.

Kahle was followed by Ulrich Pfiefer, a developer manager at Verizon Germany who developer other versions of the WAIS idea. Through a translator, Pfeifer described his work in creating a free version of WAIS and distributing it online in the 1990s. He also mentioned that he planned to donate the money Samsung paid him to testify to a charity in India.

While Pfiefer's presence may have been added to further weaken Apple's invention claim on universal search, Apple's attorney quickly had Pfiefer establishing that he is not challenging the validity of Apple's patent -- simultaneously undermining both his presence in the trial and Kahle's testimony, which also did not directly challenge Apple's patent.

Next up was MIT computer scientist Martin Rinard, who works in an artificial intelligence lab at MIT. He revealed that he is the highest-paid expert thus presented in the case, charging $850 per hour and billing more than 900 hours on the case, for a total of more than three-quarters of a million dollars -- all to say that Apple's universal search patent is useless because 98 percent of users (he claims) choose only Internet results. Needless to say, Rinard did not mention donating his fee to charity.

He dismissed fellow MIT professor (but Apple expert) John Hauser's conjoint study on feature attractiveness presented earlier in the case, saying there's no evidence of commercial success that can be attributed to the patent. He also trashed Apple expert Alex Snoeren's testimony of how the Google Search works, and saying Samsung had "no choice" but to implement a version of the patent to make their own phone competive.

On cross-examination, Apple's Rachel Krevans asked Rinard if it was his contention that Google had forced Samsung to make a smartphone, and sparred with Rinard over his analysis methodology and scope, but Rinard proved a fairly hostile witness. Asked why Apple was awarded a patent for its universal search if the WAIS concept pre-dated it, Rinard tried to claim that the Patent Office hadn't known of or understood the concept (which seems unlikely). "What I'm saying is the patent office didn't have the information in front of it to make the right decision [when it granted Apple a patent]," he said.

Rinard was followed by Professor Saul Greenberg of the University of Calgary, a specialist in human-computer interaction, who was there to testify about the '721 "slide to unlock" patent. He was paid $550 an hour for his work, and said that the unlock patent is invalid because of prior art, citing the Neonode smartphone and saying that sliding actions are fairly common in user interfaces, though he didn't clarify if he meant that they are now common, or were common on mobile devices pre-2007. The "slide-to-unlock" patent is a crucial one for Apple, since it is the only one of the five patents that is not also seen in other Android implementations, only in Samsung's devices.

Apple's lead attorney, Harold McElhinny, took on the cross-examination, questioning Greenberg's expertise. He asked Greenberg if he thought of himself as an inventor, despite having never filed a patent, and quizzing his understanding of the patent so that he could say it was invalid. Greenberg said he knew "roughly" how the process works, but was stung badly when McElhinny defended the US Patent Office examiners, "who weren't paid $220,000 to testify like you are." McElhinny was particularly effective in dismissing Greenberg's credentials and citation of prior art, strongly defending Apple's patent.

The final witness of the day was an assistant professor at the University of Toronto, Dan Wigdor -- who looked distinctly nervous following Greenberg's painful cross-examination. He told the court he was paid $450 per hour to determine the validity of Apple's "auto correct" or "predictive text" '172 patent. He testifies that autocorrect existed before Apple patented it in September of 2007, but doesn't cite specific prior art. Wigdor also attacked the Hauser survey, since it showed that features like autocorrect were selling points.

The Hauser study, which established a way to measure how attractive specific features are in a smartphone and is also the basis of Apple's damages estimate, is a single point of evidence that Samsung has relentlessly attacked, since if the jury doesn't believe in it the damages in the case are likely to be far smaller.

Apple was able to barely begin its cross-examination when the trial broke for the day. Because Samsung has been able to move its witnesses through so quickly, Judge Lucy Koh told the jury that the court might hear closing arguments a day or two earlier, which would allow deliberations to start earlier. Samsung's attorneys told the judge that they expect their witness testimony to finish on Monday, and Apple's side told the judge it would file a request for a JMOL dismissal of the case (as Samsung had done) after that. Judge Koh is not likely to grant the request.

Interestingly, Samsung has yet to bring up any mention of its two patents it is suing Apple over. Both of the patents were purchased from other companies and not invented by Samsung. They were purchased after Apple accused Samsung of copying its features, implying that their only value was as a weapon to attack Apple. However, so far the Korean manufacturer has paid neither of them any attention.

The cross of Wigdor will resume on Friday, the next scheduled court day. Thus far, Apple has used 15 hours and 38 minutes of its 25-hour time limit, while Samsung has now used 17 hours and 39 minutes.

by MacNN Staff



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