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Apple vs. Samsung, day eight: Pushing the judge's boundaries

updated 02:00 am EDT, Sat April 19, 2014

Experts say conjoint studies flawed, patents worthless as Samsung begs for time

The eighth full day of the Samsung-Apple patent trial went through another raft of witnesses as Samsung struggles to make its case inside its allotted limit of 25 hours -- a problem that hounded the company in the last trial as well. Lead attorney for Samsung John Quinn was forced to read transcripts of declarations to save time, hustle through witnesses and plead with Judge Lucy Koh for more time. An expert that the Galaxy S5 maker paid $1,000 an hour for refuted a colleagues' studies as "kind of biased."

Friday's proceedings began with a remarkably short -- two minutes -- continuation of Apple's cross-examination of Samsung's expert testifying against the validity and worth of the "autocorrect" patent, University of Toronto Professor Daniel Wigdor. Lead Apple attorney Harold McElhinny simply asked Wigdor -- who believes Apple's autocorrect patent should be invalidated, to the tune of $450 per hour -- if he reviewed the same documentation that the well-established US Patent Office examiner who granted the patent had. He said yes, and was dismissed.

The next witness for Samsung was a chaired Professor of Marketing, David Reibstein, who works at the University of Pennsylvania's Wharton School of Business. Reibstein's job is to further discredit MIT professor John Hauser's study on the value of individual features and their worth to consumers. Samsung has relentlessly attacked the study as flawed, as well as meaningless, since it gives the jury a price tag for the patented features Apple contends Samsung copied, and is the foundation of its calculation on damages.

Reibstein, who later said that he knows Professor Hauser personally and professionally and has a "considerable amount of respect for him," nevertheless tore apart Hauser's study, saying it "absolutely cannot" be used to predict a reduction of sales of smartphones based on what features are or are not present. He added that the study is "not useful" because Hauser asked only about the patented features at stake in this trial rather than all major and minor features of various smartphones, comparing the study to asking people about cupholders in new cars rather than the car as a whole.

Reibstein said that none of the Apple patents at issue in this case -- auto-correct, slide-to-unlock, data detectors/quick links, universal search and background sync -- are "major drivers" that make consumers want to buy a given phone, implying (probably inadvertently) that copying features is only wrong if they are "marquee features." He added that he "re-did" part of Hauser's survey, but interviewing 26 people rather than Hauser's 966 -- and conducted the interviews in person, rather than over the Internet.

Interestingly, Reibstein never actually disclosed the results, saying instead that all 26 people he personally tested -- and he was being paid (he later disclosed) $1,000 per hour to undermine Hauser's "conjoint" study, for a total of $422,000 -- did not understand the features described in the Hauser study. His conclusion was that he thought Hauser's study was "biased," although Reibstein is by far the highest-paid expert who has thus appeared in the trial and is not himself considered objective in the matter.

During the cross-examination of Reibstein, which went on for some time, Apple's attorney James Bennett got the professor to admit that Samsung has not yet offered any assessment of what Samsung thinks Apple's patent features are worth. He then said that Samsung has done its own conjoint study -- the same methodology he just spent his testimony trashing -- that will presented later. Bennett continued to ask why, if the patented features are so invaluable, did Reibstein never ask Samsung about why they included the Apple features in the company's phones.

Bennett also noted that Reibstein's comments on the value of background sync contradicted one of Samsung's earlier witnesses, Google software engineer Hiroshi Lockheimer, who called it the feature "important and incredibly useful." The Apple attorney poked further holes in Reibstein's contention that his 26 survey participants were confused about Hauser's survey questions. The lengthy time both Samsung and Apple have spent on Hauser's study underscores its importance as the lynchpin of Apple's case.

Samsung followed the Reibstein appearance with a video deposition of a former Microsoft engineer named Gary Hall, now Zynga's director of engineering. Hall's contention is that Microsoft ActiveSync, dating from 2003, renders Apple's patent on background sync invalid -- though he does not explain how the Patent Office could possibly have missed this in its own examination of Apple's patent.

During the lunch break, Quinn asked Judge Lucy Koh -- yet again -- for more time for Samsung to present its case. Apple's McElhinny told the judge "we can't emphasize how strongly we oppose this" and points out that Apple was able to present its case within the time allotted. He said that even if both sides were given more time, at this point such a concession would hurt Apple and help Samsung. McElhinny needn't have worried, as Judge Koh shot down the request -- again -- fairly adamantly.

The video was followed by a live appearance by a Duke University computer science professor, Jeff Chase. His testimony started with a demonstration of the 2005 HP iPaq, demonstrating a form of background sync in the device, again saying that Apple's patent should be invalid. He argued that Microsoft and Novell Evolution software on Linux both had prior art on the patent, though again was unable to explain how Apple was able to get a patent on its method.

Judge Koh accused Samsung attorneys of sneaking in evidence admissions through speculative expert testimony rather than witnesses who actually have direct links to these examples and says the practice must stop. This is not the first time that Samsung's attorney firm have been accused of circumventing evidence rules -- Quinn ran afoul of Judge Koh in the last trial for different legal shenanigans in the first patent trial. She then prohibited Samsung from admitting some of the prior art examples (with the jury out of the room during the sidebar).

As a result, Samsung's side was forced to use precious case time reading documents into the record, including declarations on Windows Mobile 5 and Novell Evoluion software. Judge Koh re-admitted the jury after the documents skirmish, clearly unhappy with Samsung's tactics. Attorneys then spent 10 minutes or so reading declarations aloud, boring the pants off everyone in court. Apple's Rachel Krevans cross-examined Chase, but the back-and-forth was probably a wash, with neither side giving any ground over the validity of the patents.

Samsung then called one of its own US executives, Nick DeCarlo (vice president of product planning and product marketing for Samsung Telecom America). He works both in Korea and in the US, and testifies that the removal of "universal search" from the Galaxy SIII and other models, which happened under a sales injunction that was later overturned, had "no impact" on sales.

He said that during the four months when Samsung had to use a Google-supplied alternative for search, that Samsung shipped 1.3 million to 1.5 million Galaxy SIII units per month. However, earlier documentation from Samsung noted a huge discrepancy between Samsung's shipped volumes and actual sales to end-users. Apple's cross of DiCarlo was shut down quickly when Apple attorney Bill Lee wanted to ask DiCarlo about a Samsung marketing document regarding the iPhone 3G, which DiCarlo protested was beyond his scope as a witness. Lee decided to dismiss DiCarlo, but he will be recalled later in the case.

Following DiCarlo, Samsung's attorney's opted to read in more deposition testimony rather than view it on video, reading in only relevant excerpts to save time. The first of these was Apple's Director of Operations for Product Development and Procurement, Sarah Chandler. Quinn read portions of her remarks in a breathlessly-fast monotone, while Apple's McElhinny opted to play Chandler's rebuttal to Samsung's questions on video so the jury could see and hear her give her own answers.

This strange paux-de-deux continued with the testimony of Apple iOS product marketing head Greg Joswiak, and the video deposition of Phil Schiller: Quinn would quickly-yet-flatly read excerpts, followed by Apple playing the (far more natural-sounding) video rebuttals. Schiller noted in his deposition that the "antennagate" brouhaha over the iPhone 4 turned out to be a non-event and ended up "being neutral" for Apple.

Quinn continued to read excepts in an attempt to establish that many features, big and small, go into making something "easy to use," not just the patents involved here. Though Samsung's team seems to think this is a key point in devaluing Apple's listed patents, one can easily imagine Apple turning the tables on this argument -- as Samsung's attorneys have opened a door that allows Apple to point out other patents (including those it has already been convicted of copying) that the company thinks Samsung has copied.

The last witness for the day was NYU business and marketing professor, Tulin Erdem. With her testimony, the trial went back to undermining the Hauser study, with Erdem again making the point that Hauser asked only about the features covered in the case, rather than major features like brand loyalty, camera quality and so on.

"You are elevating artificially the importance, the value of these things," she said, claiming that once consumers are asked to think about things like slide-to-unlock that they normally wouldn't deeply consider, that they tend to assign more value and importance to the feature. "They are not even in the radar screen of consumers," she added, saying the patented features "are very granular ... and they wouldn't drive demand."

On cross-examination, Apple's attorneys had Erdem read out somewhat harsher language she had used in her deposition, saying that "only a weird person, a technowhatever, or a crazy person" would care about features such as background sync, autocorrection or Apple's data-detector technology.

The trial ended for the day with Judge Koh saying that the case has "proceeded much more quickly than we expected" and that there are "less than 12 hours of the trial left," indicating that evidence testimony will conclude on Friday morning, leaving time for the reading of jury instructions. Closing arguments are now scheduled for Monday, April 28.

For the record, Apple has seven hours and 20 minutes of time left in this segment of the trial, while Samsung now has only three hours, 51 minutes remaining.

by MacNN Staff



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