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Apple Lands Solid Blows Against Samsung in Opening Arguments

By John P. Mello Jr. MacNewsWorld ECT News Network
Aug 1, 2012 8:49 AM PT

Apple and Samsung traded jabs Tuesday as each company presented its opening arguments to a jury in what's being called the tech trial of the century.

Apple Lands Solid Blows Against Samsung in Opening Arguments

In his remarks to the nine-person jury, Apple's attorney Harold McElhinny, of Morrison & Foerster, painted a picture of his client as a bleeding-edge innovator that had been harmed by a company that deliberately cribbed Apple's hardware designs, software functionality and packaging.

Samsung's lawyer, Charles Verhoeven, of Quinn Emanuel Urquhart & Sullivan, countered Apple's claims by arguing that its "innovations" weren't unique so they didn't deserve patent protection.

Samsung didn't copy Apple's iPhone, he added, but was inspired by it and improved on it, which is a cornerstone of technology advancement.

In addition, he claimed Apple, not Samsung, was the patent infringer in the case because the American company violated several of the South Korean firm's wireless transmission patents in its iPhone.

Smoking Gun

As part of its presentation Tuesday, Apple introduced documents that it says show Samsung deliberately set out to rip off the iPhone because it felt it didn't have the design chops to compete with the American company.

That kind of evidence could be very influential with a jury, according to Michael Lasky, a patent attorney with Burr & Forman. "It's pretty powerful because it fits the backbone of [Apple's] case," he told MacNewsWorld.

"For years cellphones looked entirely different, nothing like [the iPhone]," he explained. "Suddenly Apple comes along and completely changes the way people view a cellphone. It radically changes it."

That fact wasn't ignored by McElhinny in his opening presentation, which included photos of Samsung handsets before and after the introduction of the iPhone.

"Apple singlehandedly revolutionized the market five years ago, and it's now at risk of losing market share because of competition from numerous Android device makers that call 'competition' what one might actually call 'copytition.'" Florian Mueller, a self-described intellectual property activist-turned-analyst, told TechNewsWorld.

Prior Art Defense

Samsung's argument that Apple's patents in the case aren't unique and shouldn't have been granted in the first place is a common strategy in these kinds of cases, according to Steven J. Henry, an attorney with Wolf Greenfield.

"It's one of the classic defenses that the patented invention did not merit a patent, either because someone had done exactly the same thing previously or something that was close enough that it made the patented invention obvious," he told MacNewsWorld.

However, there doesn't appear to be strong enough prior art to invalidate Apple's patents. "If there had been a clear situation where someone could look at the prior art and say, 'Yes, that's the same thing,' then the judge would have invalidated the patents before trial," Henry explained.

In this case, though, not only did federal district court judge Lucy Koh reject Samsung's attempt to get the case summarily dismissed, but she imposed a preliminary injunction on the sale in the United States of some of the South Korean company's smartphones and tablets.

"The issue of a preliminary injunction is a pretty strong indicator of what the judge's opinion is of the relative strength of a case," David Mixon, a patent attorney with Bradley Arant Boult Cummings, told MacNewsWorld.

'Disastrous Argument'

During Verhoeven's remarks, he asked the jury not to confuse success with innovation. There's a distinction between commercial success and inventing something, he argued. That doesn't appear to be the case in law, however, when trying to prove whether or not a patent was granted for an obvious invention.

"It helps to bolster your case for patent protection if what you introduce to the marketplace is a commercial success," Mixon said. "The iPhone is a strong example of that."

In fact, the U.S. Supreme Court, in Graham v. John Deere Co. (1966), has ruled that commercial success should be taken into account when determining if an invention is unique or not.

In that case, Lasky explained, the court said that if you can't show that an invention is novel because a patent examiner doesn't believe it's unique enough, but you do show it's very successful and the success is based on public demand, that's a secondary indication of patentability. "And Apple's got it," he observed.

"So this commercial success argument is a disastrous argument from Samsung's point of view because it only helps Apple," he maintained.

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