Did Apple rip off Samsung's intellectual property to create the iPhone, or did Samsung pilfer Apple's patents when it took on the iPad and iPhone with a slew of mobile devices and tablets?
Those are the burning questions at issue in the biggest trial so far in the ongoing worldwide mobile phone patent war that's broken out between Apple, Google, Microsoft, Oracle, Samsung, HTC, Motorola and others.
Apple and Samsung, both competitors and business partners, have been jousting over the issue for more than a year, in what's really a proxy war between Apple and Google. But after 1,400 court docket entries, on Monday, in a San Jose, California, federal court, a nine-member jury is expected to be chosen to resolve the dispute in a highly anticipated patent and anti-trust trial.
At stake is billions of dollars in penalties, possible bans on imports of flagship consumer gadgets, and even whether Samsung will remain the world's foremost electronics producer of smartphones. Apple intends to push for more injunctions blocking the U.S. sale of the South Korea-based company's phones and tablets that are powered by Google's Android operating system.
U.S. District Judge Lucy Koh has already blocked the Galaxy Nexus, the flagship Google phone, from being sold in the United States, but the decision has been stayed on appeal. Apple claims the Galaxy Nexus infringes its patents via "the core voice and search functionality within Android." Koh also blocked the U.S. sale of Samsung's initial iPad rivals, the Galaxy Tab 10.1 -- as has Germany, on the grounds it resembles the iPad too closely. (However, a British judge disagreed, saying the Tab was "not as cool" as the iPad.)
The two technology powerhouses, armed with an army of lawyers charging an average of more than $500 an hour, might reach a deal before or even after jury selection begins.
But for the moment, it's a war of words between Samsung and the Cupertino-based Apple, each accusing the other of outright theft of intellectual property ranging from Apple's designs and scrolling technology to Samsung's 3G transmission functionality. The litigation theater is playing itself out on stages in at least eight countries, including Britain, Germany and Australia.
Apple, in seeking as much as $2.5 billion in damages, said Samsung "chose to compete by copying Apple." Samsung countered that without Samsung's patented technology, Apple "could not have become a successful participant in the mobile telecommunications industry." Samsung says that Apple's innovations come from its uncanny ability to commercialize technology, not from revolutionary engineering or design. Samsung, which has been making mobile phones for more than two decades, also says it has phone-design documents for a slab-like touchscreen phone that predates the iPhone.
Some legal experts suggest the legal flap might involve intellectual property that should never have been patented.
"Regardless of the outcome of the trial, we might want to step back and consider whether society should be granting such powerful rights so easily. Are the features at issue here really deserving of so much protection?" asked Robin Feldman, a legal scholar at UC Hastings College of the Law and author of Rethinking Patent Law. "On the whole, the trial is one more indication of a patent system that has lost its bearings, with litigation rather than innovation leading the way."
Samsung is likely to have a tough time securing injunctions against Apple products. The main claims Samsung asserts against Apple involve patents related to 3G data connections that use the GSM standard under the Universal Mobile Telecommunications System(UMTS). There's disagreement whether infringing on Samsung's so-called "essential" patents can be the subject of an injunction under a legal theory called FRAND, knowns as "fair, reasonable and non-discriminatory." The idea is that any patent that's key to a standard must be licensed to all-comers at a reasonable price.
The jury verdict form, which lays out the questions to be answered in the trial, has not been finalized. But a recent version (PDF) asks jurors whether Samsung "failed to timely disclose its intellectual property rights during the creation of the UMTS standard or by failing to license its declared essential patents on fair, reasonable, and non-discriminary terms." That verdict form also asks jurors to decide whether Samsung breached antitrust rules "by monopolizing one or more technology markets related to the UMTS standard."
In all, Apple claims breaches of seven patents and other so-called trade-dress violations, which are about visual appearances. Samsung alleges Apple's iPhones and iPads breach five patents. Each side, over the course of 17 months of pre-trial litigation, has dramatically reduced the number of alleged infringements in a bid to simplify the dispute for jurors.
Both claim the other's patents were either wrongly granted and should be voided or, in the alternative, the patents are not being infringed.
Some experts believe the issue is still too complex for jurors -- but all patent trials inevitably are. Earlier this year, a federal jury in Texas was asked to decide whether the fundamentals of the web, such as displaying dynamic media in a Web page, had been patented by a medical researcher. A favorable verdict could have led to multimillion-dollar judgments against every large internet company. Jurors didn't bite, however, and found that claims to owning technology key to the interactive Web were invalid.
Richard Posner, one of the country's most respected U.S. federal appeals court judges, said earlier this month that patent trials shouldn't even be heard in federal court and instead should be resolved in the Patent and Trademark Office without a jury.
That's because patent issues are too nuanced, and the stakes too high, said Brian Love, a Santa Clara University School of Law scholar.
"A lot of the evidence that's presented will be over the head of the jury pool. They'll tend to make more of a decision based on emotion and storytelling," Love said in a telephone interview. "Both sides will try to tell a story where they are in the right and the other side is in the wrong. Frequently, jury trials boil down to who tells the better story."
The FAQ:
What Samsung devices does Apple think rips off the iPhone and iPad?
Apple is unhappy about the Galaxy Tab and Galaxy Tab 10.1 tablets. And it also doesn't much care for these Samsung phones: Captivate, Continuum, Droid Charge, Epic 4g, Exhibit 4g, Fascinate, Galaxy Ace, Galaxy Prevail, Galaxy S (i9000), Galaxy S II, Galaxy s 4g, Gem, Gravity, Indulge, Infuse 4g, Intercept, Mesmerize, Nexus S 4g, Replenish, Transform and Vibrant.
Which Apple devices does Samsung argue infringes its patents?
The iPod touch, iPad 2, the iPhone 3G, iPhone 3GS and iPhone 4.
What patents does Apple say Samsung pilfered?
(Note: Not all Samsung devices named in the suit are alleged to breach every patent listed below.)
The 381 patent (PDF) covers touchscreen interactions, including dragging documents, multi-touch, pinch-to-zoom, twist-to-rotate and that nifty little scroll bounce when you've reached the end of a list of items.
The 915 patent (PDF) covers technology for how to use an API to let users scroll through documents on touch-sensitive devices.
The 163 patent (PDF) covers touchscreen tap-to-zoom and navigation features.
The 677 patent (PDF) covers the general outline and "ornamental design" of an "electronic device" that appears to be an older-model iPhone.
The 087 patent (PDF) covers general outline, or "ornamental design" of an "electronic device" that appears to be an older-model iPhone.
The 889 patent (PDF) covers the general "ornamental design" of an iPad.
The 305 patent (PDF) covers the "graphical user interface for a display screen."
What patents does Samsung say Apple infringed?
(Note: Not all Apple devices named in the suit are alleged to breach every patent listed below.)
The 941 patent (PDF) covers mobile phone 3G capabilities.
The 516 patent (PDF) also covers mobile phone 3G capabilities.
The 711 patent (PDF) covers MP3 playback technology on a mobile device.
The 460 patent (PDF) covers a "communication terminal" that functions as both a portable phone and a camera, and which can send, receive and display images.
The 893 patent (PDF) covers a method for remembering a user's place in a gallery of images.
How long will the trial last?
Well, in patent suits, there's always a large chance that the two sides will settle before they go gambling important intellectual property in front of a jury that might be composed mostly of people who still use Microsoft's IE6 browser and who don't know how to text. But if the case goes to trial, each side was given 25 hours of testimony to make their case. They may lodge no more than 125 exhibits each. In real-world time, and without a settlement, the case will likely last a month.
Who are the witnesses?
Each side has 20 witnesses. Apple executives scheduled to testify(PDF) include Phil Schiller, Cupertino's senior vice president of worldwide marketing and Scott Forstall, senior vice president for iOS software. Dale Sohn, Samsung's American president, is expected to take the stand on behalf of his company. Samsung controllerTimothy Sheppard is also slated to testify.
How is the winner determined?
Jurors theoretically could decide against both Apple and Samsung, although that's unlikely. If the jury believes a patent was infringed, it will be asked to assess monetary damages, which would likely be based on how much money each infringement is worth per device, multiplied by the number of devices sold. Other considerations include lost profits and royalties.
Can jurors invalidate patents?
Jurors can decide that a patent is invalid for the purposes of this lawsuit. Generally, only the U.S. Patent and Trademark Office can officially invalidate a patent, although a jury's finding of invalidity likely would de-weaponize the patent for other litigation purposes. Patent law is among the most complex issues in the U.S. legal system. Patents are supposed to be granted only to new and non-obvious inventions, and can be invalidated for breaching that standard.
How can Apple trademark what an iPhone or iPad looks like?
This is better known as "ornamental design." But, indeed, the U.S. Patent and Trademark Office grants intellectual-property rights to designs. Just like we know obscenity when we see it, jurors will be tasked with deciding whether Samsung's products -- largely the Galaxy phone series and early versions of the Galaxy Tab and Galaxy Tab 10.1 -- visually rip off Apple's designs.
Aren't Samsung and Apple business partners?
Samsung supplies iPad and iPhone flash memory, main memory and the iPhone's application processor. Whatever the outcome of the patent flap, business is business and this arrangement is not expected to be affected.
Who is the judge presiding over the trial?
She's Harvard Law-educated U.S. District Judge Lucy Koh, a former patent attorney, federal prosecutor and California local judge. President Barack Obama appointed her to the federal bench in 2010.
What is the dispute's case number?
11-cv-01846-LHK.
Where can the court documents be found for free?
The court documents are being made available by Justia.
Where can I get updates on the case?
Wired's Gadget Lab is covering the trial gavel to gavel.
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