The Apple v. Samsung trial has gone on for two weeks now. Next week Apple is expected to conclude their affirmative case against Samsung, and Samsung will start defending itself against the patent and trade dress claims alleged against Samsung products. Here are five Samsung actions in the trial so far that have left Samsung in a position less favorable than we would expect them to be.
1. Failing to Register with the Federal Court
This week Susan Estrich appeared as part of the Quinn Emanuel team in front of Judge Paul Grewal for the Apple v. Samsung case. However, Estrich was not admitted to practice in front of the Northern District of California. Estrich has apologized for the oversight and has explained that back in 1986 she believed that the law firm she worked for handled the registration. Judge Grewal noted that Samsung may be penalized for this oversight.
2. Failing to Timely Produce Evidence
Samsung has plenty of evidence to defend against Apple’s allegations of patent infringement. However, Samsung has repeatedly failed to show the evidence to Apple and the court, so Judge Grewal and Judge Koh have repeatedly ruled to exclude evidence. Samsung did not produce the source code for all of the allegedly infringing devices timely, so the Apple expert reports are only on the source code the experts had time to examine. Samsung cannot tell the jury about this fact to weaken the report. Furthermore, Samsung could not mention the Sony style Apple designs in the opening statements because they did not submit the evidence timely. Samsung attorney John Quinn begged with Judge Koh on July 31 to reconsider before opening statements were given. Koh denied his pleas and told him to sit down.
3. Sharing the Excluded Evidence in a Press Release
During examination of Apple industrial designer Chris Stringer, a Samsung public relations form released a message to the media about the excluded evidence, mostly on the Sony-style Apple design that the jury was not allowed to see. The release ended, “fundamental fairness requires that the jury decide the case based on all the evidence.” Apple immediately pounced on the PR stunt and claimed Samsung was trying to inform the jury of information in defiance of court orders. While Apple asked for sanctions and judgments against Samsung, Judge Koh ordered Samsung, specifically John Quinn, to explain the press release. By the time Apple brought the Samsung statement to the attention of Judge Koh, Quinn had left for Los Angeles.
4. Responding Partially to the Court Order to Explain the Press Release
John Quinn answered the court order with a declaration that Samsung was entitled to release the information as a matter of free speech. The excluded evidence was already publicly available in the media before the trial started, and the press release was distributed after the jury was selected. Apple responded by pointing out that Quinn did not answer Koh’s questions about who drafted the press release and who actually was responsible for releasing it. Though Judge Koh denied Apple’s requests for sanctions, Koh reserved the right to investigate further after the trial was done. In her prepared statement, Judge Koh specifically noted, “I will not let any theatrics or sideshows distract us from what we’re here to do, which is to fairly and timely decide this case,” a jab against Samsung’s conduct in the trial.
5. Spending More Time than Apple before Samsung’s Case Presentations
In the Apple v. Samsung case, each side has 25 hours to present witness testimony and ask questions to opposing witnesses. As of Friday, August 9, Apple has used 11.5 hours of time, but Samsung has used 12 hours. Apple is not yet done presenting their affirmative case, so Samsung has less time than Apple to present their defenses against Apple, offer their countering patent infringement suit against Apple, and rebut Apple’s defenses against Samsung’s affirmative suit. If Samsung mismanages their time, Samsung will face a more difficult battle in convincing the jury to decide the case in Samsung’s favor.