Tech companies sue each other for patent infringement all the time. Seriously all the time. But the Apple-Samsung case--in which the jury, on Friday, ruled overwhelming in Apple’s favor, to the tune of over a billion dollars in damages--was the first real deal, "You can’t handle the truth!"-style trial to emerge from the crossfire of recent patent infringement allegations. It was, by most accounts, a miserable affair for all parties involved over in the federal courtroom in San Jose. But for those of us following from home, it was pretty damn entertaining. Here’s how everything went down.
In April 2011, Apple sued Samsung, claiming that several products in its considerable stable of mobile devices infringed upon a number of Apple-held patents. Apple’s story was basically this: They put a hell of a lot of effort into developing the iPhone and the iPad, products that became the standards in their respective categories, and, instead of trying to innovate and compete fairly and all that good stuff, Samsung instead chose to copy Apple outright.
Initially, Apple threw everything it could at the wall--trademarks, trade dress registrations, design patents, and technical utility patents--but only a few ended up sticking. The trial centered on four design patents, two of which mainly cover the edge-to-edge glass of the iPhone’s display and the handset’s rounded corners. Another covers the general grid layout for icons in iOS, and yet another is concerned with the iPad’s thin bezel, rounded corners, and edge-to-edge glass. Then there are a few utility patents that cover certain behaviors in iOS--namely the double tap-to-zoom feature and something referred to as "bounce back" scrolling--basically how you continue to see the background of a certain screen, say, your inbox or a webpage, when you try to scroll past its boundaries. Apple also filed a trade dress claim, a more general complaint concerned with elements of product design that distinguish Apple’s products from those of its competitors.
If "rounded corners" and "edge to edge glass" seem ridiculously broad, well, that’s what Samsung was saying too. They call it "Apple’s black rectangle problem"--basically that the patents in question are invalid because they describe obvious, functional elements of smartphone design, not unique innovations. Samsung’s case took a little bit wider view of the iPhone timeline. As mobile industry veterans, they said, the newcomer Apple helped themselves to decades of mobile innovation without going into any of the requisite cross-licensing agreements. So Samsung countersued, levying some patent infringement claims of their own against Apple. These included some related to relatively basic elements of 3G networking, as well as patents that cover things like sending emails with photos from a camera phone, playing MP3s in the background on a mobile device, and certain behaviors for browsing photos on mobile devices.
Each side had just 25 hours to argue its case. Here’s what went down.
JULY 30: As the process of jury selection began (and the court embarked upon the difficult task of finding jurors who were neither Apple devotees nor Android fanboys), Samsung’s legal team tried to prevent Apple from referencing Steve Jobs in their opening statement, claiming it risked turning the trial into a "popularity contest." The final jury of 10 included seven men and three women.
JULY 31: The circus formally began. One juror, claiming she already had a panic attack due to the fact that her employers refused to compensate her for the duration of the trial, asked to be removed. Nine remained.
Apple counsel Harold McElhinny made an aggressive opening statement, showing a slide of Samsung’s phone lineup in 2006, replete with hardware buttons and real keyboards, and then a slide of Samsung’s offerings in 2010, all display-only smartphones as we’ve come to know them. What marked this shift, McElhinny asked? The introduction of the original iPhone in 2007. "It’s easier to copy than innovate," he explained.
In his opening statement, Samsung counsel Charles Verhoeven basically asserted that Apple’s patents are invalid from the get-go. He was quick to produce a number of patents predating Apple’s that covered many similar design elements and UI behaviors to the ones Apple was claiming were their own.
Apple’s first witness was one of their industrial designers, Christopher Stringer. Stringer, clad in an all white suit, like a human Apple ad, described Apple’s design process: a small, obsessive group works around a kitchen table--an actual kitchen table--using model after model to refine buttons, switches, plugs, and other design details. "My job is to imagine objects that don’t exist and guide the process that brings them to life," he said, in a British accent, which certainly doesn’t detract from the mental playback of this amusingly self-aggrandizing job description. "It’s a huge leap in imagination to come up with something new. That’s what we did."
"We’ve been ripped off by everyone," he said. "Samsung in particular."
And, with Stringer, we get the first delicious fruits of the trial: over 40 wacky prototypes for the iPhone and the iPad. Many are strange, or just flat-out dumb, and it’s oddly satisfying to get a peek into the graveyard of rejects hidden behind Cupertino’s well-polished walls.
Later in the day, Judge Lucy Koh was irate with Samsung for releasing some internal documents to the press that she had early deemed inadmissible as evidence. The documents include memos showing that Samsung had display-only smartphones in development before the announcement of the original iPhone in 2007, as well as some internal emails from Apple talking about the possibility of a "Sony-style design" for the iPhone, the idea being their innovation was not really all that innovative in the first place.
AUGUST 2: Judge Koh ruled that Samsung would not be able to use footage from 2001: A Space Odyssey showing people using tablets to invalidate Apple’s iPad design patents. Much of the case hinged on the idea of "prior art," namely that if a side could produce earlier examples of behaviors or designs described by the patents in question, they aren’t valid. But anyway, no Kubrick at this trial. Sorry, Dave.
AUGUST 3: Apple called Phil Schiller, senior vice president of worldwide marketing, to the stand. After the success of the iPod, he explained, the company was casting about for what to do next. “People were suggesting every idea: make a camera, make a car--crazy stuff." Eventually, they settled on a cellular phone. "We realized at the time that some phones weren’t any good as entertainment devices," he said of the iPhone’s origins. The iPad was already under development before the iPhone was even conceived, but the phone’s smaller display offered a chance to refine the touch-screen technologies they were developing for the bigger device.
When Apple decided to pursue the iPad, Schiller explained, tablets were a "dead category" and the endeavor was "a risk to our image."
And, during cross-examination, a tantalizing glimpse: Toward the end of questioning, Samsung’s counsel asked Schiller if Apple was going to go with a new design for the iPhone 5. After some objections, some overrulings, and some hemming and hawing, Schiller got away with answering, "I prefer not to tell confidential information about future products." Boo!
But Nick Bilton at the New York Times Bits Blog makes a good point about the whole matter, at this juncture: This trial offered the rare chance to see Apple operating under rules set by someone other than itself. It had to reveal some of the secrets behind its magic, away from its strictly choreographed scripts and free of its reality distortion fields. Anyway, at one point, Samsung’s lawyer asked Schiller to hold a Samsung Continuum, which he reluctantly did, as CNET’s Josh Lowensohn describes, "like it might give him a communicable disease."
Scott Forstall, senior vice president of iOS, was next to take the stand, and he recounted the beginnings of the iPhone project in Apple. Steve Jobs insisted that no outside developers be brought in, out of concerns for secrecy, though Forstall was allowed to poach anyone from any division in the company to work for him. He recalled bringing various Apple "superstars" into his office and telling them "we’re starting a new project. It’s so secret I can’t even tell you what that project is. I can’t tell you who you will work for … What I can tell you is that if you accept this project you will work nights, you will work weekends, probably for a number of years."
Outside the dorm where the iPhone was being developed--it was then codenamed Project Purple--developers put up a sign that said "Fight Club"—"the first rule of the Purple Project is you don’t talk about Purple Project outside those doors." Until you’re deposed, that is.
During cross examination, Samsung’s lawyer showed Forstall an email from Eddy Cue, Apple’s senior VP of Internet software and services, about a journalist trading his iPad in favor of a 7-inch Samsung Galaxy Tab. The email reads, in part, "I believe there will be a 7-inch market and we should do one. I expressed this to Steve several times since Thanksgiving and he seemed very receptive the last time."
Yes, Steve Jobs was receptive to a 7-inch iPad last Thanksgiving! Apple will likely be releasing one next month.
Later, Justin Denison, chief strategy officer of Samsung Telecommunications America took the stand. Apple then got a chance to introduce some internal Samsung documents as evidence, one of which was a comparison between the iPhone and the Samsung GT-i9000 (what would later become the Samsung Galaxy S). A slide comparing the grid-style icon layouts for both bears a somewhat damning note to "Remove a feeling that iPhone’s menu icons are copied by differentiating design" as one of the "directions for improvement."
AUGUST 6: Denison, back on the stand to complete his testimony, was confronted with internal documents in which top Samsung executives say the company is up against "a crisis in design." The document goes on to state, in evaluating the experience of using its own Omnia phone against that of the iPhone, "the difference is truly that of Heaven and Earth." I don’t think that had to do with how hot the phones got when you were using them. Denison said that language was merely hyperbole to galvanize the ranks within Samsung, but the memo made its mark on the jury nonetheless.
Apple called on industrial designer Peter Bressler as an expert witness, and he maintained that the average consumer would look at the Samsung Galaxy S 4G as "substantially the same" as the iPhone in terms of design. Samsung’s lawyers responded by noting several minute differences between Samsung’s handsets and the iPhone, in one case pointing out a difference in the radial measurement, in millimeters, of the corners of one of its own devices compared to that of the iPhone.
Bressler responded, "You’re asking me to compare peanut butter with a turkey." Unclear if the iPhone is supposed to be the peanut butter or the turkey here.
AUGUST 7: A central part of Apple’s trade dress infringement claim is that the icon arrangement on Samsung’s phones is so similar to that of the iPhone that customers might confuse the two in some way. Another expert witness for Apple, graphic designer Susan Kare, a former Mac team member responsible for the enduring happy Mac icon, is called to testify and delivers an extremely convenient anecdote to that end:
I remember when I was at the law firm about being an expert witness in this case there was a big conference table with many phones on it … I could see the screen and went to pick up the iPhone to make a point about the UI graphics, and I was holding a Samsung phone. I usually think of myself as someone who is pretty granular about looking at graphics, and I mistook one for the other. So, I guess in addition to my formal analysis I had the experience of being confused.
And in case you wonder how much these expert witnesses pull in, Verhoeven gets that on the record, too. Kare says she’s being paid $550 an hour and has collected around $80,000 total for this case.
AUGUST 10: We learn that the summer of 2010, when the Samsung Galaxy S was released, Apple was so surprised by its similarities to the iPhone that they went to Samsung with a presentation detailing their grievances. Steve Jobs and Tim Cook met personally with Samsung execs, ostensibly in aims of getting Samsung to license the patents Apple felt were being infringed upon. The 67-page presentation Apple made to Samsung that day was, at this stage in the trial, released in full, and in it Apple places much of the blame for the infringement on Android. "Apple has identified dozens of examples where Android is using or encouraging others to use Apple patented technology," it reads.
AUGUST 13: The 13th saw a little light shed on a quiet alliance between two tech giants: Microsoft and Apple. Documents detailing the 1997 cross-licensing agreements between the two companies were admitted into evidence, revealing some vague protections that Apple’s director of patent and strategy, Boris Teksler, called "anti-cloning provisions."
The agreement covers both utility and design patents--that is, features and design elements in both the hardware and the software created by the companies. Nothing of groundbreaking import here, but it does mean that Apple probably can’t include one of those awesome cover/keyboard combos Microsoft developed for its Surface tablet when the time comes for the next iPad redesign.
Apple also called Terry Musika, a finance type, to the stand to testify about how much all this infringement might mean in actual dollars. Musika looked at three figures: Samsung’s profits from the devices in alleged infringing devices, the royalty fees deserved for the patents Samsung infringed upon, and the profits Apple might’ve lost along the way. The CPA’s conclusion? Apple lost 2 million iPhone and iPad sales due to the infringement, for a total profit lost of $488.8 million. His figure for Samsung’s undue profit was much greater: $2.241 billion.
With their assessment of the damages thus levied, Apple rested their case.
Then it was Samsung’s turn.
Samsung’s lawyers aggressively set out to establish that Apple’s utility patents--those covering their "bounce-back" scrolling design element and system for interpreting multi-finger use--were already in existence well before the iPhone’s development. To do so, they pointed to the DiamondTouch Table, a projection-based multi-touch unit designed at the Mitsubishi Electronic Research Laboratory in 2001.
AUGUST 14: Countersuit time. Samsung called Jeeyeun Wang, one of their senior designers who explained that she herself had sketched several of the icons Apple claims Samsung poached, including the green phone icon for making calls. Lest the court think Apple was the only one with sleep-deprived designers, Wang, speaking through a translator, recalled that she slept only "two or three hours a night" and said, as best as she could remember, breastfeeding of her newborn baby "had to come to a stop."
Another expert witness, Italy Sherman, brings in "prior art" to demonstrate that many of Apple’s "innovative" designs could already be found in other devices. In the case of the iPhone, Sherman cited pre-existing patents for devices with big screens, rectangular shapes, and rounded corners--several of the attributes Apple maintains were patently unique in the iPhone. For the larger devices, an early tablet computer by Compaq and another 1994 tablet mock-up were introduced to invalidate the iPad’s uniqueness.
Sherman drove home Samsung’s main point: design patents are not intended to cover elements that are purely functional. Rounded corners, Sherman reiterates, are a no-brainer: They make smartphones easier to slip into pockets. Apple counters by showing off several smartphones whose corners are rounded less similarly to the iPhone’s than those of Samsung’s devices. And so the world turns.
AUGUST 15: Judge Koh urges the CEOs of Samsung and Apple to meet one last time before things are left to the jury to see if a settlement can be reached. They oblige. But the case must go on!
Samsung delivered a blow to Apple’s claim on its "bounceback" patent. Dr. Andries van Dam, a Brown University faculty member, is called to assess the previously mentioned DiamondTouch Table computer--the one developed by Mitsubishi--and, in particular, how it exhibits all of the behaviors outlined in Apple’s patent for the "bounceback" scrolling feature. Van Dam says he looked into the matter and discovered that the U.S. Patent Office hadn’t seen the DiamondTouch Table when they granted Apple the patent, and thus it was invalid from the beginning. Apple, countering, tried to assert that the projector-based DiamondTouch wasn’t really a "touch screen" in the way they meant it. Van Dam, unfazed, said that it was, indeed, "in every way … a touch-screen display," under the language used in the patent.
Samsung then showed an early example of multi-touch technology that will be familiar to many longtime web surfers: Jeff Han’s multi-touch demo for TED in 2006.
AUGUST 16: Samsung started things off by bringing in Michael Wagner, their own finance dude, who gave his own estimate for Samsung’s profits from the allegedly infringing devices: $519 million. You’ll note that it’s a whole lot less than the $2 billion figure Apple’s guy came up with.
All the while, Judge Koh, who was not very happy with either company to begin with, had been getting increasingly snippy with the lawyers for both sides. After presenting her with a 75-page briefing on 22 potential rebuttal witnesses, Koh asks Apple why they would even entertain the idea of introducing so many new witnesses, "when unless you’re smoking crack you know these witnesses aren’t going to be called." William Lee, one of Apple’s attorneys, assured the judge that he was not smoking crack.
Having outlined their case for infringement, Samsung now offers a concrete amount for the damages they’re seeking: $421.8 million. Samsung rests its case. At this point, three weeks into the trial, there had been a subtle shift in proceedings. Bryan Bishop, at the Verge, explains, "Whether due to time, happenstance, or strategy, it would appear that somewhere along the line the legal teams started presenting cases for other lawyers--and, very likely, appeals courts--rather than a jury of individuals."
AUGUST 17: Tensions were running high as ever, not only between the claimants but between the judges and the lawyers as well. Magistrate judge Paul Grewal, dismissing some motion or another by Samsung, said, "The court has bent itself into a pretzel accommodating the scheduling challenges of this case … at some point the accommodation must end, lest the hundreds of other parties in civil rights, Social Security, and other cases also presently before the undersigned and presiding judge might reasonably ask: What makes the parties in this patent case so special?"
They make our iPhones, Your Honor!
AUGUST 20: Bloomberg reported that Tim Cook and Kwon Oh Hyun, Samsung’s CEO, were going to talk on the phone and try to come up with an agreement to the patent dispute, as requested by Judge Koh. Spoiler: They didn’t come up with an agreement.
AUGUST 21: Time for closing arguments. The day started early, with Judge Koh reading the jury instructions aloud to the jurors. All 109 pages of them. Time for lunch already.
In the afternoon, the two sides set in with their closing arguments. Harold McElhinny, speaking for Apple, said Steve Jobs "shocked the world" with the iPhone. Then, he smartly touched on what wasn’t heard in the courtroom: "No Samsung witness ever sat in that chair and said 'those designs are not similar.'"
For Samsung, Verhoeven urged the jurors to think of it not only as a matter of rounded corners and baseband processors but one of competition, the very essence of capitalism and the force that made America an economic superpower. "Competition is what built this country," he says, and Apple, in this case, is "attempting to block its most serious competitor from even playing the game." All TVs are minimalist flat rectangles, he points out--what gives Apple ownership over the minimalist, flat, rectangular phone?
In his rebuttal, Apple’s William Lee called back to some of the more damning language found in Samsung’s internal memos: "If Samsung had all of this, as they just told you, why was there a crisis in design? Why was there a difference between Heaven and Earth?"
"It took Apple five years to create this revolution, and Samsung took three months to copy it. That’s truth, and that’s simple, clear, and undisputed."
AUGUST 24: The jury, after some 20 hours of deliberation, ruled overwhelmingly in favor of Apple. Samsung, they found, had infringed on Apple’s patents, and the jury awarded Apple over $1 billion in damages.