Welcome back. If you have been following me on Twitter, you know that I have been looking forward to the Apple v. Samsung trial set to start at the end of July in downtown San Jose. To prepare for the trial, I checked the website for the United States District Court of the Northern District of California and discovered that Judge Koh was holding a hearing for the case on Thursday, June 21 in the afternoon. With about a month before a scheduled trial, Judge Koh needed to cover a lot of ground in order to duly examine both parties’ arguments. The following is my recollection of the two-hour hearing I saw last Thursday between the tech giants Apple and Samsung.
First of all, the hearing was not in Judge Koh’s normal courtroom. When I arrived at the courthouse, I found out that Koh was using the courtroom across the hall from her own because it had a higher capacity. The courtroom is larger than Judge Alsup’s courtroom and was about three-fourths full when I entered. Time will tell if Koh will use her own courtroom for the trial or if her courtroom is too small for the audience to watch it in person.
The first part of the hearing was about the trade dress dilution issue. Judge Koh wanted to know what evidence established the fame that Apple alleges it lost as a result of Samsung selling devices infringing on Apple’s trademarks. Samsung’s counsel noted that the court has eight factors to decide. The underlying documents support the exhibits and declarations on the advertising of the products in question. Samsung added that the result of the fame is the recognition of the trademark. The case should focus on the nature of the advertising of Apple and Samsung’s products.
Judge Koh moved on to classification of references with respect to design patents. She asked both sides about the difference between anticipatory and primary references concerning design, not utility, patents. To clarify, a person can obtain a patent on a design, the look of an invention, rather than a machine or method, a use of an invention. The USPTO treats design patents differently than utility patents. For example, a design patent may only have one claim, but a utility patent can have as many claims as it needs to protect the invention. Design patent terms are shorter than utility patent terms, but design patents do not require maintenance fees. Samsung argued that anticipatory references are exactly the same as in the design patent, and primary references are basically the same. Apple wanted to define “basically” to mean having the same overall impression but still deceptive to the consumer.
Koh then questioned Apple about the antitrust part of the litigation. Judge Koh asked Apple why Apple is entitled to damages based on FRAND licensing. Apple responded that if the patent is essential to the standard, then there is a license. Koh wanted to know if expert fees could be a form of damage in an antitrust action. Samsung answered that, while theoretically possible, Apple did not meet its burden of proof to show damages based on the fees and expenses of Apple’s experts. Apple may be entitled to nominal damages, but Apple would still need to prove injury.
Apple and Samsung argued a bunch about patent language that I think dealt with 3G networked cell phone encryption. Samsung alleged that Apple was reading limitations into its patent that did not exist before because gold code is the same as scrambling code. Apple agreed that the two were equivalent in the patent, and there was no dispute that the two kinds of code were equivalent either way in general. Samsung continued to argue that the claim language suggests a genuine issue of fact whether Apple uses the scrambling code at all. When Samsung stated that the specification says that gold and scrambling code are the same, Apple responded that the patent mentions secondary scrambling code that can be emitted to assist a receiver between bases and the device. Apple also stated that Samsung’s expert said the gold code could be utilized as primary scrambling code. When Samsung disagreed, Apple responded that Samsung was trying to create an issue of fact after the expert finished the deposition, and that is contrary to procedure regarding summary judgment rulings.
Continuing the confusion, Judge Koh looked over two more patents. Koh asked Apple how claim 2 in the ’460 patent meets the five step requirement in claim 1. Apple answered that the patent described only one subload. Figure 9 in the ’460 patent shows two different steps, so the figure is too ambiguous, and there are no other embodiments shown in the patent. Koh also wanted to know about the claim construction in Samsung’s ’381 patent. Both sides said they agreed on the claims construction, but Apple noted that they were using implicit definitions of electronic documents and defining “electronic document” based on examples. Apple and Samsung had no formal definition of electronic document and could not seem to agree on a definition.
The last part of the hearing was about general housekeeping. Judge Koh asked if there were any outstanding issues depending on rulings from Judge Grewal, the judge in charge of the discovery part of the trial and the morning Apple v. Samsung hearing. Koh said she was more satisfied in the last round with Apple’s arguments rather than Samsung’s. Apple and Samsung would be allowed 125 exhibits per side for the trial and no more. Impeachment and rebuttal exhibits are not included in the quota, but their introductions require 24-hour notice. Finally, Judge Koh urged both sides to narrow the case to their best arguments because most of the issues she is reviewing should survive the motions for summary judgment and would go to trial as jury questions.
Last Thursday afternoon, Judge Lucy Koh held a two-hour hearing to review outstanding issues in the very high profile Apple v. Samsung trial. As of now, the case involves patent infringement, trademark infringement, and an antitrust suit. Judge Koh is doing her best to bring the issues to trial for a jury to properly understand. This Friday, Judge Koh should be holding a hearing to decide to grant Apple’s motion for an injunction to block the sale of Samsung’s Galaxy Tab 10.1. I am going to enjoy watching the tech titans battle in the downtown San Jose courtroom, and I will be covering the case in person as much as possible.