After looking over what has been show so far it seems that Apple might be on the losing end of that argument and they might actually think so themselves. Today they attempted to call in an additional 22 witnesses to rebut Samsung’s side of the story. It was a rather ludicrous request and prompted judge Koh to say “unless you’re smoking crack you know these witnesses aren’t going to be called!”. It was an exceptionally unprofessional thing to say to Apple’s legal team and something that could end up being used in the appeal process by Apple should they lose too badly.  

While we do agree with Judge Koh’s decision here to not allow Apple an additional 22 witnesses at the end of the trial (they should have been able to show their case by this point if they had one), we also have to wonder about the theatrics of it. Even when admonishing Samsung’s team for getting out of hand Judge Koh has not gone that far with her language. Still at this point Apple appears to be desperate considering the trial has not gone exactly to plan. They were able to keep a few pieces of evidence from the jury, but what was left will have a serious impact on the jury’s thoughts on the whole case.

As we have said from the beginning Samsung was viewing this more as a tactical operation and not the usual show. They knew going in that Apple would contest loudly about certain items, but they also knew they could lose those and maintain enough of an edge to push forward.  In chess you see this type of move all the time. Apple did not seem to get the way things were going and managed to present evidence and testimony to the jury that was eventually turned against them. After either poling holes in Apple’s expert witnesses or turning earlier testimony against them Samsung moved to show two things.

1 – Apple did not create the items they are claiming Samsung copied.

This was key in their defense. Samsung needed to show that the concepts and ideas embodied in Apple’s claimed patents existed prior to Apple laying claim to them. By doing this with displays of prior art and testimony from people like Andries van Dam (the person that brought us Siggraph) helped to hammer that point home. Van Dam stated that the snap-back feature that Apple claims under the 381 patent has been a common teaching point for more than 10 years.

2 – Apple’s use of borrowed technology and designs made it likely they borrowed from Samsung

Again the key point here is that Samsung wants to show how often Apple borrowed someone else’s ideas and passed them off as their own. If they did this as a matter of habit it makes the claim that Apple borrowed Samsung tech to make the iPhone better more believable. To do this all they have to do is continue the parade and bring in witnesses like van Dam and the man who invented the Fidler tablet in the early 90s. With Fidler and later the DiamondTouch Samsung has shown that Apple was aware of them since they were demoed for Apple engineers.

Make no mistakes; Samsung has a good deal of the upper hand here as they move forward. Remember one of the claims that Apple has tried to convey to the jury is that it is the core of the patents and not the exact implementation that matters. They claimed this when Samsung showed that the Tab had different and in other cases where Samsung said they were different. Now they are asking the jury ignore the similarities as Samsung parades out the prior art. It is a move that will probably cause confusion in the jury, but might also make them end up siding with Samsung. There is simply too much evidence of prior art going on for someone to think that Apple invented all of the things they claim at this point.  We imagine that Apple and Judge Koh are very aware of this and might be taking steps to find a way out.

Discuss this in our Forum