How Samsung lost against Apple and why Apple may lose the appeal
This article may contain personal views and opinion from the author.
We all know that Samsung is going to appeal the $1.05 billion loss it suffered to Apple last week, and if the company follows a few simple rules, the appeal should help a lot towards getting Samsung out of the hole it has dug for itself. We talked before about how the ruling shouldn't cause problems with the Android ecosystem as a whole, and Google even echoed that idea. But, the more information that comes out about the trial, the more we feel like Samsung lost this case far more than Apple won it.
Throughout this entire saga, the prevailing narrative came from Apple's side, which was that Samsung "copied" Apple designs, and infringed on the patents. One of the major issues was that Samsung never set up a compelling counter-narrative to that. Take for example the obvious parallel in Oracle v Google: Oracle said that Google "stole" code, and Google made very sure that everyone heard its side of the narrative which was "you can't 'copy' what is an integral part of a language".
Don't get us wrong, we still stand by the fact that according to the law as it stands, Samsung was pretty much destined to catch heat for its Galaxy S and early TouchWiz designs, and it may have been inevitable that Samsung lost the lawsuit to Apple, but it really shouldn't have been as lopsided as it was. And, maybe it wouldn't have been so lopsided if Samsung's legal team had been a bit more competent, and maybe followed Google's lead a bit more.
What would Google do?
If it were Google v Apple in this case, we would have been sure to see a prevailing narrative from Google showing not only prior art, but flat out attacking the validity of the patents in question. Google would have put the entire USPTO on trial for granting patents for a "rectangular product with four evenly rounded corners", "a flat, clear surface covering the front", and "a display screen under the clear surface". Instead, we saw Samsung bungle it the entire way, even right to the end, where it just came out that the jury somehow considered prior art in making its decision, and even after coming to the conclusion that it was impossible to think that "there was no prior art, that there wasn't something out there before Apple", the jury still found the patents to be valid.
That was a huge failure by the Samsung legal team. It isn't like there is a shortage of prior art from which to draw, even if you aren't allowed to go back to 2001: A Space Odyssey. Samsung showed a number of images of its smartphone designs that predated the iPhone, and yet still looked quite a bit like the iPhone. Sure, Samsung didn't really have a good case to defend itself from the claims regarding the TouchWiz UI, but there was certainly enough evidence to support Samsung against Apple's hardware claims. Yet, somehow Samsung wasn't even allowed to put the designer of the Samsung F700 on the stand, because the testimony was somehow ruled to be of little value.
The F700 wasn't a smoking gun, but it would be hard to fathom that Samsung could have designed that device in the one month between the iPhone announcement in January 2007 and the first sighting of the F700 in February. It would be even better if Samsung didn't even have to show prior art (which it could have anyway), just parallel development. It's not like anyone saw the iPhone before January 2007, and the world of technology is filled with examples of completely independent teams coming to the same product at the same time, and the case could be made that is exactly what happened here. Of course, the patent law as it stands rewards the first to market, and the most successful products, and independent development doesn't matter, even if it proves that no "copying" could have taken place.
Even the evidence that Samsung was able to bring somehow didn't make a dent, which points even more to a failure of Samsung's legal team. For example, Samsung played this video during the trial, which shows touchscreen technology with pinch to zoom and the bounceback animation which were part of Apple's patent arsenal. Except the video was of the Diamond Touch, a product that Apple was shown by the developers back in 2003.
Samsung had Mitsubishi engineer Adam Bogue testify to the fact that he showed the design to Apple in 2003, but the jury still found Samsung to be in violation of that patent. And, one big reason why the jury sided that way wasn't just that the jury apparently ignored the question of prior art in its deliberations (although that was a big issue); it was more that Samsung allowed the jury to ignore those questions. If you take a look at the jury instructions that were used in the deliberations, the first 10 questions all pertain to whether or not Samsung infringed on Apple patents. It isn't until question 11 (on page 9 of the 20 page document) that the question is asked whether or not these patents are valid.
If this seems backwards to those (like us) who don't have an intimate knowledge of the law, it should certainly at least be a point of contention for the Samsung legal team. It should have been set up to determine the validity before determining infringement, because the second completely depends upon the first. Of course, as we said before, somehow the jury did determine that there must have been prior art, but still found the patents to be valid, which points to a huge failure by Samsung to adequately explain prior art and the importance of determining the validity of patents.
Appeals: the second chance
Samsung can't appeal everything from the verdict. Samsung can't appeal the infringement or trade dress dilution rulings, because those are "findings of fact", and Samsung would have to prove that the jury was not a "reasonable jury". Samsung will have a hard time proving that the jury wasn't reasonable, they just weren't given the right instructions by the Samsung team, but that argument won't go too far. However, Samsung can certainly appeal the matters of law, which would go specifically towards whether or not Apple's patents are valid. Given that this jury saw plenty of prior art, it should have been easy to prove the patents to be invalid, but Samsung failed on that point. The appeals process will give Samsung a second chance on that.
Samsung will still be on the hook for a huge fine because of this current ruling, but if the Samsung team can present its case properly in appeals, it could potentially notch a win against Apple's patent portfolio, although we're not sure how much faith in Samsung's lawyers we have at this point. At least the list of devices that Apple wants banned after the ruling is made up mostly with devices that are coming up on the end of their life-cycles.
Samsung just has a few things to focus on with the appeal to this verdict. The first is easy: just present the same examples of prior art that convinced the jury this time around. The second is apparently more difficult for Samsung: to adequately explain to the jury what that prior art means in regards to determining the validity of Apple's patents. At the very least, Samsung should try to make sure that the jury instructions are written properly. And, lastly, Samsung needs to make sure that its narrative gets through, because evidence doesn't mean much if the jury has already decided on day one that there is infringement.