In typical Apple fashion, most of their witnesses simply parroted what they have tried to push to the world: Apple invented the smart phone and all of you copied it. It has been a message that Apple has pushed for a very long time and even Apple CEO, Tim Cook got into the act when he said he was tired of Apple being the inventor for the rest of the world. The truth of these claims was quickly brought into question as Samsung paraded one example of prior art after another and had multiple expert witnesses testifying that the bounce-back feature was old when Apple first used it. We will give Apple credit though; they did a good job of presenting their story at first. They have considerable expertise in presentation and marketing. This helped them while they were trying to reiterate their mythology and timeline of how they want the world to see the creation of the iPhone and iPad.

Unfortunately, in many cases these claims and timelines broke down under cross examination.  Apple also managed to hinder some of Samsung’s infringement claims with a few key points, but most of the score sheets show that the match is leaning in Samsung’s favor in terms of jury perception and legal grounds. What was most telling was Judge Koh’s request to trim down the claimed patents in the trial by both sides and also for the CEOs of both companies to meet again for settlement talks. Considering the timing, this move on the part of the Judge was unusual, especially since she allowed a preliminary injunction against some of Samsung’s products (most notably the Tab and Galaxy). For her to have approved this, she had to feel that Apple had a good chance of prevailing in court. At the point she is asking for things to be trimmed and for settlement talks to begin, there has to have been a shift in perception.

We are betting that both Samsung and Apple see it too as Samsung CEO Kwon Oh Hyun and Apple CEO Tim Cook have agreed to meet via phone and talk about a settlement.  Considering both companies’ stances on these patents it is unlikely that it will affect the trial. For what it is worth though, the simple agreement to meet shows that there is concern in both houses.  We imagine that Apple is more concerned, as they also have Motorola to deal with in the ITC. While the outcome of this trial is not likely to affect what happens there, it would be bad for Apple to go into it with several of their key patents on shaky ground because a jury found that Samsung did not infringe on them. At that point Samsung could push for them to be invalidated, which would leave Apple with weakened defenses as the barbarians are rushing the gates. It would be in Apple’s best interest to settle at this point, even if they have to concede on some of their claims, rather than face the possibility that they will lose some of their patents at this critical juncture. They have more than Samsung to be worried about now, and no matter what the rest of the press may tell you, Apple knows they cannot fight a war on two fronts if they lose their big guns.

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