In a perfect world a patent trial would go through several phases before it reached this level. There should be a phase that allows for both sides to prove or disprove the validity of their patents before a panel. Three judges that are familiar with the technology would be able to hear arguments for and against each claimed patent. From there if any are left then settlement talks and arbitration would happen.  Both parties would be required to present claims for damages which would be verified by the presiding officials. At this point the two sides should be allowed to offer terms for settlement under a binding agreement.  From there it would be back to business as usual with an extra step. The judge that would preside over the trial should have to prove competence in the technologies that are being argued.

Unfortunately this is not and probably never will be the case. As it stands now the USPTO still claims that they do not have the time to properly research patents for prior art. Yet these researched items are allowed to be used to put full product bans in place for what often amounts to a small percentage of the product. To call it an embarrassment is a gross understatement. A friend of mine wrote an article about Apple trying to patent a 29 year old invention when they applied for a patent on a restraint Point of Sale system. There was a massive listing of Prior Art, yet the USPTO simply rubber stamped it. The same has happened with many of Apple’s other patents including their design patents (especially those).

To make matters even more complicated the US media seems very bent on giving only part of the story. In the coverage of today’s closing arguments Apple was given an average of four paragraphs describing what they stated to the jury while Samsung was given an average of five lines. There is something fundamentally wrong with that type of coverage. We also noted that while many covered the claims that Apple laid before the jury almost none covered their validity. We found a couple that we would like to cover here.

One of the first was a lie (if the quotes used by reporters in the court are accurate). Apple lawyer Harold J McElhinny made a claim to the effect that the Greatest number of customer returns was from people confused that they thought it was the iPad2. This would be exceptionally inaccurate as only 9% even mentioned the iPad2 and none said they confused Samsung products for the iPad2. They stated they returned the Samsung tablet in order to get an iPad2. We were shocked to read this on so many sites without anyone calling that out for what it was.

Next up:
Comparison of Industrial Design Witnesses: We brought an industrial designer, Samsung brought you an Electrical Engineer.

Apple’s industrial designer has never designed a production phone and after claiming that he noted the details he then became frustrated when asked about the details that make the phones different. He then had to admit that he did not spend much time with the Samsung phones.

On bounceback, zoom / center and scroll / zoom patents: Samsung again did not put up a non-infringement defense. Instead they claimed they were invalid.

Samsung showed in more than a few instances that the bounceback was design feature that was taught long before Apple put in a patent for it.

There are more items in the closing argument that are either completely false or perversions of the real information. Apple’s lawyers are relying heavily on two items; the jury’s gullibility (and possible ignorance) and also Samsung internal documents. The problem with that is that Samsung also showed Apple documents that showed why people buy an Android phone over an Apple phone. Does this mean that Apple intends on copying other manufacturers? Or does Apple truly want people to believe that when Apple inspects and reviews other people’s products it is ok, but when anyone else does it that is copying?

In simple terms the reason that Apple brought this suit is because they want to lock out the competition ANY competition. There are some companies that they cannot go after directly (Microsoft, Asus, Nokia etc), but they will continue to try and find any excuse to ban the competition no matter how far they have to go to do it. Apple is also very likely to continue their PR campaign in the hopes of getting people to believe that Samsung copied Apple. This is despite clear differences between the products in looks, features, usability and more. Apple has been shameless with their claims and continuous PR statements that many sites simply parrot like gospel.

Still it is possible that the jury will have picked out the attempts by Apple to lie to them and find in favor of Samsung. John Quinn said it best when he said “The real reason Apple is bringing this case is because rather than compete in the marketplace, Apple is seeking a competitive edge in the courtroom”.

Still as we said before, no matter what the verdict is for this trial. It is far from over as one side or the other will be sure to file an appeal. In fact we would bet that both sides have them prepared and waiting for the verdict already.

Highlighted points from Groklaw

Discuss this in our Forum