With a little more than a week to go in the month-long patent trial between Apple and Samsung, time is running out quickly. Both sides get 25 hours each to call up, and cross-examine one another's witnesses — and Samsung's running low. By the end of the day the company had a little under four hours left, time it needs to convince a jury that Apple's infringing on two of its patents.
Samsung spent much of this week attempting to pick apart Apple's argument it had copied features from iPhones, iPods, and iPads. That ultimately ended with Samsung's chief attorney pleading (unsuccessfully) with the judge for more time to make its case. To carve time today, Samsung's attorneys skipped one of their planned witnesses, read through transcripts of taped depositions instead of playing those videos back, and even aided one of its witnesses in pulling up documents from an evidence binder.
This has happened before
The rush is not a new thing for Samsung, which ran into a similar time crunch in the 2012 trial against Apple. That case was far more complex, with more patents and more products in play. This time around, both companies have focused solely on user-facing features like Apple's slide-to-unlock, and Samsung's photo gallery feature. Depending on which company you're listening to, these are either integral features that make these devices standouts, or a drop in the bucket of things that make phones and tablets what they are.
Samsung's view is the latter, and in testimony today, the company called upon Jeffrey Chase, a professor of computer science at Duke University, to attack the validity of one of Apple's five patents in the case. Chase was brought on to argue that Apple's patent covering background syncing, which it filed for in January 2007, was predated by technology created by Microsoft years earlier as part of its ActiveSync protocol. That was available in consumer devices from Hewlett-Packard running Windows Mobile 5 in the fall of 2005, Chase said, long before the first iPhone.
To further drive that point, Samsung briefly brought out Evolution, a piece of Linux software that shipped on machines from the Novell Corporation in September 2005. In a pre-taped demonstration, Chase showed two users on Evolution sending and writing emails, with messages arriving in the background while drafts were being written. That's to counter the same Apple patent that covers data being sent and delivered behind-the-scenes.
Phones vs. cars
Ahead of Chase's testimony, David Reibstein — a professor of marketing at Wharton — tore into a survey Apple produced to help calculate its $2.191 billion in damages. Those surveys asked people to place values on various smartphone and tablet features, including several that are at stake in this trial. Reibstein called the framing of those questions biased, and said the study failed see if the people actually knew what they were being asked.
These are not 'primary' features
"If we were going to be talking about something such as screen size ... you could sort of assume people know what we mean by screen size and price," Reibstein said. "But here we're talking about features that are not the primary [purchase] drivers."
That very suggestion is key to Samsung's argument that the patented features Apple is going after for billions are not important in the grand scheme of smartphones and tablets. Throughout much of the trial, Samsung's attorneys have listed — sometimes even demonstrating — to the jury, specs like bigger screens, styluses, and removable batteries as major differences from Apple's products. Those are things Samsung says consumers care more about than software features. By comparison, Apple has argued that these were original inventions that add up to an ease of use that set its products apart from competitors.
Reibstein noted that conjoint studies, the questionnaires used to determine the demand for specific demands, are useful for "some" but not "all" types of surveys. One example of that, he suggested, was to look at theoretical survey by automobile makers about features in a car. "People have preferences over cup holders in cars," Reibstein said, adding that you wouldn't use that information to help figure out what types of vehicles people would buy.
The home stretch
Today is the end of the third week in court for the two companies as part of this month-long trial. Apple rested its case last week, and Samsung is expected to do the same at the end of next week following an estimate of damages it believes Apple should pay for allegedly infringing on two of its patents. Earlier in the day, Samsung made a plea to US District Court Judge Lucy Koh to give the company more time to make its case, given an expected surplus of time at the end of next week.
"There is a real problem doing justice to the case."
"There is a real problem doing justice to the case," Samsung's attorney John Quinn told Koh."It would make a huge difference for us." A perturbed Apple attorney Harold McElhinny argued that the company had kept within the predetermined limits. "We have been living within your honor's rules, and complying with your time limitation. That only benefits them, and tremendously hurts us," he said. Judge Koh eventually nixed Samsung's request.
After closing arguments, a jury of eight will decide the case. That process took a similar-sized group just three days following the case between the two companies. It's entirely possible it could take less this time around, though with 25 hours of testimony and cross-examination on each side along with four hours of closing argument, there's a lot to chew on.