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Apple vs Samsung, Day 10: The home stretch

updated 02:15 am EDT, Wed April 23, 2014

Apple defends against Samsung charges, discloses secret deal

The biggest news in today's Apple vs Samsung patent trial was the previously-reported revelation of a secret deal between Google and Samsung in which the search and advertising giant not only agreed to indemnify Samsung if it lost on two of the patent claims in this trial, but that Google -- not Samsung -- was to "direct and control" litigation and defense on Samsung's behalf. The revelation, which Samsung had previously denied in court, will be used to diminish the Samsung claim that the case is really about Android.

The disclosure of the deal, which turned up later in the day, may be the reason why Apple's own lead counsel, Bruce Sewell, attended today's hearing (he has been absent for most of the trial). The trial began where it left off on Monday, with digital photography expert Ken Parulski testifying on behalf of Samsung regarding the second of the company's patents it claimed Apple infringed, the '449 patent on "video folders" (a library organizing system for pictures and video).

Samsung opted to move quickly with its remaining questions, as it only had one hour of time to present its case. Apple's Bill Lee, handing the cross-examination, was also quick, even though Apple had at this point 4.5 hours left (but had to defend itself from Samsung's counter-claims later in the day). Lee asked Purulski about the nature of the equipment the patent described, illustrating that it was all set in the pre-Internet era and dealt mostly with analog video and images and methods of storage.

Samsung was then to present a damages expert, Sanjay Rao of management consulting firm Charles River Associates, but opted to skip him due to time constraints and went on directly to James Kearl, an economics professor at Brigham Young University and also a senior consultant at Charles River Associates. Kearl surprised observers in court by announcing that Samsung was lowering its claim of damages from alleged Apple infringement of the two patents from $6.9 million (stated at the beginning of the trial) to $6.2 million, because the company opted to drop infringement claims for the iPad over the weekend.

Those who have followed the trial and its coverage will be aware that Apple could have easily settled this portion of the case for much less than this trial and its expensive expert witnesses have cost it. However, the company is adamant that it did not infringe either patent, and thus defended itself against Samsung's witnesses.

When Apple attorney Bill Lee cross-examined Kearl, it quickly emerged that Charles River Associates has been paid about $3.1 million for its work on the case, with Kearl himself making about 10 percent of the total. Lee made the point that the cost of the patents it bought for this trial and the expert witnesses have cost Samsung far more than the $6.2 million it is asking in royalties for the patents. Following the cross-examination, Samsung rested its affirmative case against Apple.

This was followed by a brief sidebar with Judge Lucy Koh, where both sides argued over jury instructions. Her patience perhaps finally wearing a bit thin, Koh suggested that the two lead attorneys have lunch together to work out the differences. Apple's Harold McElhinny drew laughs when he told the judge "that's a pretty high price" to pay for a resolution.

Following the sidebar, Apple began its defense against Samsung's infringement charges. The company's Director of Platform Architecture, Tim Millet -- who has worked on Apple's system-on-a-chip (SoC) products for its mobile devices -- tells the court that "historically, the partner we've worked with exclusively has been Samsung." He then detailed the various components Apple invented or modified and used Samsung to manufacture in the A-series processors that power every iOS device, noting that Samsung has been making these chips for years but never before alleged that Apple was infringing on a patent.

Pressed for time, the Samsung attorney asks just one question of Millet on cross: a clarification of whether the A6 chip contained circuitry for photo and video compressors and de-compressors (known as codecs). Roberto Garcia, who manages iMessage for Apple along with the SMS functions in iOS and OS X, is also responsible for FaceTime and iChat. One tidbit to emerge from his testimony was that FaceTime's original codename was "Venice" and that the company "uses a lot of code names." Another small revelation is that FaceTime grew out of work done for Game Center.

Crucially, Garcia illustrated that the finished FaceTime product is the work of several teams of engineers and tens of thousands of lines of code, none of which relies on Google's patents. Garcia himself has five patents connected with FaceTime, and noted that the program doesn't record video and then send it, as the Samsung patent demands; it processes and sends each frame, because Apple's process uses digital video rather than analog video. Again due to time, Samsung opted not to cross-examine Garcia at all.

Following a deposition supporting Apple's defense from Intel's curator of video products, Tracey Mazur, the trial went on with computer science professor James Storer of Brandeis University, who studied Samsung's two patent claims. Storer -- who was paid $675 per hour -- testified that Apple didn't infringe either the '239 or '449 patents Samsung is asserting, and also noted that the '239 video-conferencing patent has, in fact, recently expired.

During the lunch break, Judge Koh appeared to get a consensus from the opposing sides on a set of limited instructions, a minor miracle. When the trial resumed, Samsung spent just a couple of minutes asking cross-examination questions of Storer, and then Apple rested its defense. This was followed by Apple's rebuttal witnesses against allegations made by Samsung in its defensive case against Apple's charges.

Apple began its rebuttal case by dropping the first real bombshell in the trial -- the aforementioned secret deal between Google and Samsung. Whether Samsung will get into trouble for denying the arrangement earlier in the trial remains to be seen, but if Apple's attorneys follow up on the deal as negating Samsung's excuse that the charges are really all about Android, the jury may be more inclined to give Apple what it is asking for -- as Google has in effect admitted that it bears responsibility for some of the alleged infringement, and tried to hide its involvement.

To rebut an earlier witness who worked on the Sidekick and said that Apple copied its own work, the jury is shown some of the source code from the Sidekick, which shows that the device was so primitive compared to the iPhone that it didn't even recognize the "plus" (+) character in phone numbers. Apple also recalled damages expert Alexander Snoeren to refute Samsung's dismissal of the damages amount Apple wants, and its attorneys were seen to spend more leisurely time with their own witnesses (whereas Samsung was largely stymied in cross-examination) thanks to Apple's better conservation of its 25-hour limit.

Apple expert Andrew Cockburn was also recalled to the stand as the last witness of the day, to reply to Professor Saul Greenberg of the University of Calgary's testimony claiming that Apple's "slide to unlock" patent was invalid due to prior art, though McElhinny had already done a good job taking apart the "prior art" claims and Greenberg's qualifications as a patent examiner.

Cockburn will return to the stand -- probably very briefly -- on Friday, the next day scheduled for the trial. Apple has 37 minutes of case time left, while Samsung has a mere 11 minutes. The rest of Friday will be given over to legal arguments and jury instructions, and then closing arguments (two hours allowed per side) will commence on Monday.

by MacNN Staff



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