1 Documents, not witnesses, are key
“Documents are the most valuable key in the truth-finding function,” McElhinny argued. “Historical documents are almost always where the truth lies.”
There have been many, many witnesses in the past weeks, and their testimony has frequently been contradictory. McElhinny advised the jury to look at the documents instead.
2 Look at the timeline
“If you want to find out what really happened, if you want to see the truth, make a chronology of it,” said McElhinny.
This is a crucial issue. After considering whether Apple and Samsung’s ideas and designs are similar enough to constitute patent violation, the jury need to examine when each company came up with them. Who copied whom? Which company invented the smartphone as we know it?
Apple’s legal team showed the following slides to illustrate what they would argue is the evolution of Samsung smartphones before and after the iPhone launch (although Samsung has created slides of its own which are more ambiguous on this issue).
McElhinny argued that Samsung faced a crisis shortly after the iPhone launched – he called it “a crisis of design”, and an issue that was raised at an internal meeting in 2010. Two weeks later, he claims, Samsung execs met staff from Google and were warned to “change the designs of the Galaxy S phones and the tablets they were working on because Google recognised Samsung was copying Apple’s designs”.
Samsung carried on regardless, McElhinny argued, and was able to design the Galaxy S in just three months (that figure was provided by the testimony of a Samsung designer earlier in the trial) because it was copying “the world’s most successful product”.
“Sales took off after the first iPhone-derived product was added to the mix,” he added.
3 Samsung has been reluctant to co-operate
“No Samsung executives were willing to come here from Korea,” McElhinny said.
“Samsung did not bring you a single witness that admitted to seeing the copying documents we showed you. Instead, they brought you lawyers.”
4 Apple’s designs aren’t simply functional…
“Samsung says our patents are invalid because they are functional, and because they are obvious. Samsung’s defence is a word game,” McElhinny said.
“Not every smartphone needs to look like an iPhone.”
At this point McElhinny showed images of more unusual-looking rival smartphones, including the Sony Xperia Arc.
5 …and Samsung hasn’t proved that Apple’s designs are obvious
McElhinny stated that Samsung had failed to provide a single witness to testify that the iPhone’s icon design was obvious.
Samsung’s expert on design patents, furthermore, wasn’t even an industrial designer. “They brought you an electrical engineer,” McElhinny said, harking back to the idea of Samsung not co-operating with the process.
“There has been a complete failure of proof on that issue.”
6 Consumers were confused by the products’ similarity…
Trade dress is the look of the design that tells you who made or who sells the product, McElhinny said. Apple has asserted four trade dresses in this case. It is asserting that Samsung copied the overall look of Apple’s products.
He showed a survey of consumers who bought Galaxy Tabs from Best Buy, and then returned them – because they had thought they were buying iPads. “This actually happened,” he said. “It’s not conjecture, it’s not lawyer’s arguments.”
And he added that Samsung’s own surveys showed something similar: that people thought a Galaxy Tab advert was for the iPad. “These prove confusion in the marketplace,” McElhinny said.
7 …and this made Apple’s products seem less special
This is the dilution side of the trade dress claims.
“You cannot help but reach the conclusion that these products are so similar that Apple’s products will be viewed as less than unique in the marketplace. They have spent a billion dollars mimicking our designs and holding it out to the world so the Apple design is no longer seen as unique.”
8 Samsung copied Apple-designed functions
These are some of the utility patents that Apple is claiming were violated.
Bounce-back (in other words the rubber-band bounce on Apple’s touch interfaces): “No Samsung witness testified that Samsung is not using the bounce-back feature. No one denied it.”
Double-tap to zoom: “Samsung never put up a non-infringement defence.”
9 Samsung’s figures for revenue and lost sales are not properly sourced
McElhinny claimed the figures Samsung has produced when calculating appropriate damages were taken from a document that was created for the trial, and “you have no idea who created it or the basis for the numbers in it”.