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Samsung argues jury foreman was 'deliberately dishonest' in Apple trial

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By Nilay Patel and Matt Macari

Apple and Samsung returned to Judge Lucy Koh's courtroom today to argue over potential sales bans, recalculated damages, and whether the actions of the jury foreman are reason for Apple's $1.049 billion verdict to be thrown out altogether. "It's déjà vu all over again," said the court reporter as she walked in — the two companies are at the beginning stages of what will almost certainly be a long appeals process.

Samsung's allegations of misconduct by jury foreman Velvin Hogan were among today's most anticipated issues, but they were barely discussed until the very end: neither party mentioned Hogan until nearly two hours into the hearing, and he was only discussed for two minutes. Apple noted that it had alerted Samsung to Hogan's previous participation in unrelated litigation with Seagate, and Judge Koh was blunt: "I think that topic has been fully briefed." It's difficult to say what that means, but overturning a verdict through allegations of juror misconduct is very difficult, and it's clear Koh didn't want to dwell on it.

"He was deliberately dishonest."

Samsung attorney John Quinn, who battled with Judge Koh throughout the jury trial, wasn't willing to let it go, however. Quinn stood up at the end of the hearing and launched into a scathing attack on Hogan, saying that he'd lied about his previous lawsuit against Seagate to get on the jury. "He told reporters what he did not tell this court," said Quinn. "He was deliberately dishonest... I think we have a case here that he should have been excused for cause." Quinn asked the court to bring in Hogan and the other jurors for questioning about the impact of his presence. "The court needs to hold a hearing here."

Apple was obviously skeptical, saying that Samsung had it "precisely wrong" on the jury issue. "They're claiming that Mr. Hogan lied about an event that occurred 19 years ago... and it was his goal in life to harm" Samsung, argued Apple's William Lee. "I think it's outrageous he's being called a liar."

"I think it's outrageous he's being called a liar."

Until that point, Samsung's basic plan was much simpler: the company asked for a new trial at every turn. It is an obvious request: Apple loves the jury's verdict, while Samsung surely believes it would do better with just about any other jury. The first request came as Judge Koh discussed the tap-to-zoom patent, which Samsung argued was "indefinite" — not explicit enough to be specifically infringed. If the court rules the patent should be thrown out, Samsung requested an entirely new trial to calculate revised damages, while Apple argued the court can simply adjust the existing award.

The damages discussion quickly spiralled into extremely detailed specifics, with over an hour spent discussing the exact damages calculation for the Samsung Galaxy Prevail, a minor device for which the jury awarded some $58m in damages on just two million units sold. Samsung argued that it was able to break down the jury verdict and reconstruct how the damages were apportioned. In doing so, Samsung believes the jury inappropriately awarded Apple a percentage of Samsung's profits on utility patents — a remedy only available for design patents. Apple disagreed, emphasizing that nobody really knows how the jury came up with their numbers, and that it's not appropriate to examine what happened in the black box of the deliberation room.

"We should prevail on the Prevail."

"I don't know how they [the jury] did it," said Apple attorney Harold McElhinny, "but if you're asking me if the materials were in the record that would permit them to do it, of course they were." That wasn't enough for Samsung, whose attorney replied that McElhinny was trying to "bend over backwards to create a fanciful theory" about damages. "We should prevail on the Prevail."

Samsung eventually presented its core argument to Koh, returning to the request for a new trial: the company believes Koh can and should strike certain damages, but if it becomes a matter of determining what the jury thought about to deconstruct the result, a new trial for damages is required.

Naturally, Apple said that Samsung can't complain about the jury's decisions when it could have simply negotiated a better agreement for itself outside of the courtroom. "They're our biggest supplier," said Apple's McElhinny, who reminded the court that Apple had warned Samsung about copying and tried to settle before and during trial. "No one from Samsung came and said 'this took us completely by surprise.'"

"There are seven different versions of the source code loaded onto these 24 phones."

Samsung also argued that Apple failed to meet its burden of proof on every product in the case — Apple basically used a single Samsung product as the representative example for every patent claim when questioning its expert witnesses, while Samsung says it should have done an element-by-element analysis for every device. "There are seven different versions of the source code loaded onto these 24 phones," said Samsung attorney Charles Verhoeven. "That in and of itself merits an overturning of the jury verdict." Apple responded by noting that the jury had the phones in the deliberation room, so it could have made its own decisions.

Samsung wasn't the only one asking the court to adjust the jury's numbers. Apple wanted to make some tweaks of its own, asking for an additional $121 million in supplemental damages. Supplemental damages are generally used to adjust for sales or accounting numbers uncovered after trial. Samsung's counsel obviously disagreed and argued that no court has delivered the type of supplemental damages Apple's asking for and that Koh "shouldn't be the first."

"There has never been a case where the evidence was so strong that a specific product was copied."

Apple also argued strenuously that injunctions were still in order, even for products that infringe design patents on the now-discontinued iPhone 3GS. McElhinny compared the situation to Chevy releasing a copy of Ford's ‘67 Mustang, saying "These products have longer lives than whether they're available in an Apple Store right now would suggest." Judge Koh seemed sympathetic, noting that "there's a tension" in Samsung's argument that it would be harmed by an injunction for products that are off the market.

Overall, today's hearing was much more formally legal in tone and substance than the jury hearing. Both sides frequently turned to case law to bolster their positions, and Judge Koh was much more open with her thought process, a stark contrast from her ringmaster demeanor during the trial phase. But not all emotion was absent: at one point Koh explicitly asked both sides when the case would be over. "When is this case going to resolve?" asked Koh. "Are there additional data points you're waiting for? Is there an event?" Koh lobbied both sides to settle, saying "it would be good for consumers. It would be good for the industry."

"Every day they make a decision about how close they're going to come to the line."

Neither side was willing to budge. "There has never been a case where the evidence was so strong that a specific product was targeted, that a specific product was copied," said Apple attorney McElhinny, arguing that Koh's decision would set the boundaries of acceptable behavior in the marketplace. "Every day they make a decision about how close they're going to come to the line."

"We are willing" to negotiate, responded Samsung's Verhoeven, after arguing that Apple was competing in the courtroom and not the marketplace. "The ball's in their court."

The Verge
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