"You have heard allegations by Apple that certain of its designs and patents have been copied. Regardless of whether you as the jury accept this testimony, you may not consider it in deciding whether any patents in this case have been infringed. Copying is not an element of patent infringement."
"Evidence of copying, if established, is only relevant as one of several considerations you will need to account for in deciding whether a patent is invalid because it was an obvious design."
"Did others copy the claimed design? Where parties have a practice of marketing very similar products, however, evidence of copying is not a strong indicator of non-obviousness, but rather a measure of the extent to which parties in the market typically follow developments by their competitors, whether patented or not."-Proposed Samsung jury instructions
We told you yesterday that Judge Lucy Koh had asked both sides to meet face to face on Sunday and to turn in their jury instructions early Monday morning. Both sides are having problems deciding on what Judge Koh should say to the jury before deliberations. Apparently it is coming down to copying versus patent infringement. As FOSS Patents Florian Mueller notes, "Even with a 100% independent creation, you can be liable for infringement -- and even with 100% intentional copying, you are not liable for anything if there is no valid patent within the scope of which your copied product falls."
Copying is not illegal although Apple is trying to prove that it does lead to other claims such as "willful infringement," "trade dress secondary meaning," and "indirect infringement." Samsung says that it hasn't copied Apple, but even if it did it has no relevance on whether Samsung infringed on Apple's patents. As a result, the Korean based tech titan wants the jury to be told that even if they believe that Apple's designs have been copied, they cannot use this in determining if Samsung infringed on Apple's patents. Another part of the instructions that Samsung wants to use that Apple is protesting, basically states that in an industry with similar products put out by different manufacturers, evidence of copying just shows that the players in the industry follow the designs of their competitors whether patented or not.
What Judge Koh decides on for the jury instructions regarding copying and infringement could determine the outcome of the case.
source: FOSS Patents, AllThingsD