The claim was so flawed that we honestly cannot believe that Apple tried to skip it past the jury. For starters it has been shown that many opt for phones that are available to their carrier simply because they do not want to cancel a contract or deal with a new service. During a significant portion of the claimed time of infringement the Apple iPhone was only available at AT&T. This means that Apple might never have collected those sales no matter what the competition did. It was a nasty little fact that Apple’s lawyers might have been hoping would go unnoticed, but Samsung was quick to bring up.

Another nasty little landmine that helped to knock the legs out from under the Apple damages claims is the fact that in many instances Apple could not keep up with demand. People chose another phone because they could not get an iPhone.  The shortage was used earlier by Apple to show how they had established brand recognition; for at least part of the time that Apple wants to claim for damages they simply had no phones to sell to people that wanted them. This problem is an Apple problem and does not prove copying or consumer confusion at all.

After reading some of the transcripts for this Apple expert we have to say that he ended up doing more to hurt Apple’s case than helping it. At one point he looked to Apple’s legal team as if for guidance on how he was supposed to answer a question. Body language like that gives a lot away; it could be an indication that the study was guided by Apple and not an unbiased piece of work by an expert in the field which is that Apple hoped the jury would believe. Like we said earlier, do not believe the hype that Apple has Samsung on the ropes; at this point it is really anyone’s game, but the edge is certainly moving toward Samsung as they continue to poke holes in Apple’s testimony and have even shown what many would agree is prior art for the bounce feature and pinch to zoom. Apple’s attempts to counter this were rather weak in both cases where they tried to claim that their implementation was “different”. Oddly enough that is exactly what Samsung is saying about their products…

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