By Nilay Patel, Matt Macari, and Bryan Bishop
After weeks of trial and impassioned closing arguments from both sides, the historic Apple vs. Samsung lawsuit is now in the hands of the jury. The seven-man, two-woman panel began deliberating yesterday at 9AM, and they'll carry on today and every day until they reach their decisions. It will be a monumental task.
Although Apple and Samsung did their best to present high-level narratives about copying and product development throughout the trial, the jury’s work is far more complicated than simply asking if Samsung copied Apple. Instead, the 20-page verdict form presents around 700 extremely specific questions, divided into 33 groups. These questions exhaustively cover everything at issue in the trial, down to exact, per-device dollar amounts Apple and Samsung might owe each other for copying various kinds of intellectual property. Importantly, the jury has to be unanimous on each decision — dramatically increasing both the length of deliberations and the chances they'll fail to decide at all.
The jury instructions and verdict form are very much the product of lawyers
A quick look at the form reveals just how complex it really is: a staggering mix of charts, legal language, patent references, and technical jargon. To make sense of the form and understand how they’re supposed to decide, the jury was given a further 109-page set of instructions, which Judge Lucy Koh read aloud in a lengthy courtroom session Tuesday morning. The jury instructions and the verdict form formed a contentious backdrop to the entire trial, as Apple and Samsung spent weeks arguing over the exact wording and structure of both documents. They are very much the product of lawyers.
The jury will have access to all of the evidence presented during the trial, as well as an overhead projector so they can look at documents as a group during deliberations. They’ve also been provided with all of the accused devices from Apple and Samsung so they can use the various features and compare designs. The devices are running specific versions of Android and iOS and the phones aren’t activated on any networks; the jury can connect devices to the court’s Wi-Fi but they’re required to dismiss any software update prompts and are further forbidden from downloading any apps.
So. You’re in a room with nine relative strangers after three weeks of trial. The group has elected a foreman, and it’s time to go through the verdict form. What happens next?
The first nine pages of the verdict form are all about Apple’s patents — and charts. A lot of charts. Apple’s asserted seven patents against a total of 28 Samsung devices made and sold by three different corporate divisions, and the charts are there to keep track of everything. For each patent, the jury will have to methodically examine all of the devices — does the Droid Charge infringe Apple’s bounce-back patent? Does the Galaxy Tab? — and then decide if Samsung Electronics in Korea, Samsung Electronics America, and Samsung Telecommunications America are liable for any infringement. Adding to the visual complexity, the charts are selectively blacked out; STA and SEA distribute different products in the US so they’re not liable for the same devices, and the judge ruled they're not liable for the international Galaxy S, S II, and Galaxy Ace. To top it off, not every patent is asserted against every single device.
That’s a lot of work for a single chart — and there are a lot of charts. Apple obviously wants this herculean task to serve as a reminder to the jury that Samsung’s infringement was massive, and the punishment should be proportionate. But the jury is also a group of people who’ve been taken away from their everyday lives to decide this case. It’s one thing to flex your intellectual property muscle and make a point, and quite another to simply confuse and irritate the only nine people that really matter — especially when they have to reach a unanimous decision.
Apple's technical patents
The jury will have to read and understand the patent claims very carefully
Question 1: bounceback patent infringement. Apple patent 7,469,381 is probably the most well-known in the case: it’s the bounce-back scrolling patent. Apple’s only asserting one very specific claim of the patent against Samsung, so the jury will have to read and understand that claim before deciding if each of the 28 devices accused here infringe the patent. Note that they’re not yet being asked if the patent is valid — that comes later.
Question 2: scrolling patent infringement. Next the jury will have to repeat this process for Apple patent 7,844,915, which covers using one finger to scroll and two or more fingers to zoom. Again, only one specific claim of the patent is involved, so the jurors will have to read and understand it before deciding if each specific Samsung device infringes.
Question 3: tap-to-zoom patent infringement. The jury’s third and final software patent chart covers Apple patent 7,864,163, which covers tap-to-zoom. As with the two previous patents, they’ll have to read and understand Apple’s specific patent claim and then decide which Samsung devices, if any, actually infringe.
Question 4: technical patent inducement to infringe. To close out this section, the jury has to decide if Samsung Korea induced either of its two American subsidiaries to infringe any of the three patents. This is a bit silly: we generally think of Samsung as a single company, but it’s really many different companies, so Apple can try and ding Samsung Korea for helping its American subsidiaries to infringe its patents. If the jury finds infringement for any of the individual patents, they’ll almost certainly find inducement to infringe as well.
Apple design patents
Next, the jury will have to consider Apple’s design patents. These are much simpler to understand, and the jury was noticeably more engaged during the trial when the focus turned to design. It’s simple, it’s visual, and they’re even allowed to compare Apple and Samsung’s devices directly if they decide Apple’s patents describe real hardware.
The bad news is that they’ve got to fill out more charts.
Question 5: iPhone design patent infringement. The first design patent is Apple’s D618,677 patent, which covers very specific elements of the iPhone’s design: the speaker slot, clean front, edge-to-edge glass, and display border. Looking at the drawing, remember that only the solid lines count — the dashed lines are there for context. 13 Samsung devices are accused of infringing this patent, including the Galaxy S II line, the Infuse 4G, and the Verizon Fascinate.
Question 6: iPhone design patent infringement. The next design patent is Apple’s D593,087 patent, which covers the home button, clean front, rounded corners, and uniform bezel of the first three iPhone models. It’s basically what’s left from the D’677 patent. Eight Samsung devices are accused here, including the Galaxy S II line, the T-Mobile Vibrant, and the Infuse 4G.
Simple, visual, and the jury can even compare devices directly
Question 7: iOS icon arrangement design patent infringement. Apple also spent a lot of time at trial talking about its D604,305 design patent, which covers the iOS icon grid. Designer Susan Kare testified repeatedly that there was no reason for Samsung to mimic Apple’s icon designs so closely, while Samsung was forceful in reminding the jury that she’d only looked at design, not function. Samsung also argued that this patent should be invalid, but again — that’s a question for a different section. There are 13 devices accused of infringing this patent, including the US variants of the Galaxy S, the Droid Charge, and the Infuse 4G.
Question 8: iPad design patent infringement. The jury then turns to tablets and Apple’s iPad D504,889 design patent, which covers the clean front, edge-to-edge glass, thin bezel, thin outer border, and rounded corners of a tablet. Samsung argued that this patent isn’t actually about the iPad, but rather an early prototype of the iPad that was much thicker. That’s important because if the jury believes Samsung, they can’t compare the original Galaxy Tab 10.1 directly to the iPad. Apple, of course, said it didn’t matter.
Question 9: design patent inducement to infringe. Once again, the jury has to decide if Samsung Korea induced Samsung Electronics America and Samsung Telecommunications America to infringe Apple’s design patents.
Question 10: willful patent infringement. If the jury decides that Samsung infringed any of Apple’s patents, they then have to decide if Samsung "willfully" infringed — that is, if Samsung did it on purpose. If Samsung knew about the patents and did it anyway, the company might be liable for up to triple damages. Apple was very clear in telling the jury that Samsung was willful, pointing to evidence the Google had told the company to stop copying iOS devices.
Question 11: patent validity. It’s a little backwards, but after the jury decides if Samsung’s devices infringe Apple’s patents, they then have to decide if the patents are valid. This part of the form should make Apple the most nervous: compared to the infringement charts, it’s completely straightforward. Each patent is matched up with a simple "yes" or "no" line, and if you think the patent is invalid, you check off "yes". If you think it’s valid, you check "no." No further justification required.
The one saving grace for Apple is that this part of the sheet isn’t the first thing the jury sees. Moreover, they still have to put the time in on the infringement determinations. There’s nothing that instructs the jury to ignore the infringement analysis if they believe the patents are invalid, so they’ll have spent a lot of time thinking about Apple’s patents before they get to this part.
On the other hand, Samsung has introduced at least a few intriguing invalidity defenses and interesting prior art, including extremely old devices like the Mitsubishi DiamondTouch Table and the famous TED talk of Jeff Han demonstrating multitouch, so there’s always the possibility they jury could take out some of Apple’s patents without much effort at all. Fewer patents could mean a smaller damage award for Apple.
Apple's trade dress
Do Samsung's products dilute the value of Apple's design?
Trade dress is all about the connection between the design of a product and consumer perception. Just like the "Apple" brand name means something to people, Apple says its distinctive designs are meaningful and should be protected. The jury will have to decide if Samsung’s products were likely to confuse consumers by copying Apple’s design.
Question 12: registered iPhone trade dress protectability. Apple has a formal trade dress registration for the iPhone, which means it’s presumed valid. Samsung argued that it’s not valid, so the jury has to decide whether the look of the iPhone is protectable: is it non-functional, and does it have meaning to consumers? The jury has many factors to consider here, including Apple's advertising, consumer perception, and Samsung's intent to copy. Much of the evidence presented in the trial was about the value of Apple's trade dress, and this question and the next are critical for Apple's case.
Question 13: unregistered iPhone and iPad trade dress protectability. Apple also claimed that the iPhone 3G, iPad, and iPad 2 were sufficiently famous to qualify for trade dress protection without a formal registration, and the jury has to decide if they’re protectable or not. This is the inverse of the previous question: Samsung has to prove that the registered trade dress is invalid, while Apple has to prove that the unregistered trade dress is valid.
Note that the jury hasn’t gotten to answering whether Samsung infringed anything yet — they’re still debating whether there’s anything to infringe in the first place.
Is the iPhone design famous?
Question 14: iPhone and iPad design fame. Apple’s mainly arguing that Samsung’s copying diluted the value of its designs in the eyes of consumers. In order for that to be true, the trade dress has to be famous — so the jury has to decide whether the iPhone, iPhone 3G, and iPad are famous designs. This is why Phil Schiller was called to testify about Apple's marketing efforts — to convince the jury Apple invested heavily in making the iPhone and iPad famous and distinctive.
Question 15: registered iPhone trade dress dilution. And we’re back to charts. If the jury decides that the registered iPhone trade dress is both protectable and famous, it has to go through another lengthy chart, deciding which of 17 devices diluted the trade dress and if Samsung Korea or Samsung Telecommunications America is responsible. Importantly, one of the major elements in dilution is whether Samsung intended for its products to be more like Apple's — evidence of which Apple repeatedly showed to the jury. Devices in the chart include all the US versions of the Galaxy S and S II.
Did Samsung copy Apple's design on purpose?
Question 16: iPhone 3G trade dress dilution. Same chart, different trade dress. This one’s for the iPhone 3G — if the jury finds Apple’s trade dress protectable and famous, they have to figure out which phones diluted it. Again, Samsung's intent is important here, since dilution is more about decreasing the distinctiveness of Apple's design than about direct copying.
Question 17: iPhone trade dress dilution. This chart adds the Galaxy Ace, and covers Apple’s "combination" iPhone trade dress. If the jury finds the overall look of the iPhone to be protectable and famous, they’ve once again got to go through the chart.
Question 18: iPad trade dress dilution. This is the trade dress dilution chart for the Galaxy Tab 10.1 and Galaxy Tab 10.1 4G LTE. Again, the jury will have to first find the trade dress of the iPad and iPad 2 to be protectable and famous, and then decide if the original designs of the Galaxy Tab 10.1 diluted that trade dress. You’ll note that this chart adds Samsung Electronics America to the mix; in a delightful bit of Samsung organizational structure, SEA sells the Galaxy Tab 10.1 while STA sells the Galaxy Tab 10.1 4G LTE because it has a cellular radio.
Question 19: willful trade dress dilution. Now that the jury has decided what devices and divisions of Samsung are liable for trade dress dilution, they’re once again being asked if they believe it was willful dilution. Did Samsung do it on purpose?
Question 20: iPad trade dress infringement. This is an interesting additional question for Apple to have left in the mix: the jury is now being asked if Samsung’s Galaxy Tab 10.1 and 10.1 4G LTE infringed the iPad’s trade dress. Where dilution is a little touchy-feely and vague, infringement is straightforward and harsh: did Samsung copy the look of the iPad in a way that’s likely to confuse average consumers? It’s an interesting conversation for the jury to have, not only because it’s a distinct legal concept from dilution, but because it speaks to how clearly Apple feels the Galaxy Tab 10.1 ripped off the iPad.
Question 21: willful iPad trade dress infringement. If Samsung did in fact infringe the iPad’s trade dress, did it do so willfully?
Question 22: total damages. Buried in the middle of this lengthy document is the heart of the entire case: a dollar sign, a blank line, and a simple question. "What is the total dollar amount that Apple is entitled to receive from Samsung on the claims on which you have ruled in favor of Apple?"
It’s difficult to imagine the jury going back through countless pages of financial spreadsheets — where the numbers vary greatly depending on whether they were crafted by Apple’s or Samsung’s experts — and confidently arriving at an accurate number. It’s more likely to come down to gut-feel approximations. If the jury fully buys into Apple’s narrative that Samsung was in the business of copying, musters up the strength to connect enough of the dots between infringement and damages, and doesn’t invalidate any of the patents, it’s certainly possible to arrive at an amount approaching Apple’s request of over $2.5 billion.
A dollar sign, a blank line, and a simple question
On the other hand, if Samsung has convinced the jury that it engaged in good old fashioned American competition, or if they accept Samsung’s damages numbers, or if they have decided to invalidate any of Apple’s patents, that multi-billion dollar damage award could move significantly southward. It’s like a high stakes game of Jenga: a small decision by the jury could drastically change the final number, or it could have no real effect at all.
Apple lawyer Harold McElhinny showed an appreciation for this ambiguous jury power during his closing argument, warning the panel that Samsung "will not change their way of operating if you slap them on the wrist."
Imagine you’re the foreman and you have to get 8 other people to unanimously agree on this number. Now imagine filling out this form and writing anything from $0 to $2,525,000,000 on that line. This isn’t easy stuff.
Question 23: specific damages. You thought getting the total damages amount right was hard? Now do it again for 28 devices. All nine jurors have to decide exactly how much Samsung owes Apple for each device in the case, from famous successes like the Galaxy S II to the utterly obscure like the Samsung Gem. This underlying level of complexity has always been the Achilles’ heel of Apple’s case, and this is where the jury might well hang.
Once the jury is done with all of Apple’s claims, they’ll turn to Samsung’s counterclaims against Apple. With just seven patent claims against five iOS devices, Samsung’s case is much simpler in form than Apple’s, but the amount of technical and legal understanding required by the jury is significantly higher. What’s the difference between "literal infringement" and the "doctrine of equivalents"? Did Samsung violate antitrust law? Did it break promises to the 3G wireless networking standards association? This is wonky stuff for the jury to be deciding.
Fewer patents, but far more complexity
Question 24: patent infringement. Oh good, another chart. Samsung organizes its chart a little differently than Apple — it’s putting all of its patent claims against all the devices in one question. That makes this chart extremely important — each box is a distinct and important question with significant monetary damages. Note also that newer iOS devices aren’t in the mix: the jury is deciding whether the iPhone 3G, iPhone 3GS, iPhone 4, iPad 2 3G, and fourth-gen iPod touch infringe these patents, not anything else. That’s a lot of differences, and ideally the jury will recognize that each box is to be decided individually, not as part of a group.
The jury will also have to contend with the increased complexity of Samsung’s five patents compared to Apple’s very visual design patents and easily-demonstrated UI features. Two of Samsung’s patents cover highly technical elements of the 3G standard, and the other three require the jury to consider the difference between "apps" and "modes" on a phone. During the trial the jury was often listless while Samsung and Apple argued about these down to the source code level; it’s hard to know what the jurors took away from that.
Oh, and if the opaque language of patent claims and their technical complexity didn’t make it hard enough to determine whether there’s been infringement, the jury must also decide if Apple’s devices infringed one of Samsung’s patents under the "doctrine of equivalents." It’s an arcane legal doctrine — with more nuances than you’d ever want to know — but here’s the gist: it’s sometimes possible to prove infringement even if the accused product doesn’t include exactly what the patent claims require. Namely, it’s sometimes proper to find infringement if the product doesn’t exactly match up with a claim element, but does substantially the same thing and accomplishes substantially the same result.
For this case, Samsung’s ‘460 patent mandates "the use of scroll keys" when browsing photos in a given context, which the iPhone abandoned in iOS 5 and the iPad never used. A general swiping gesture took the place of the buttons, so Samsung is invoking the doctrine of equivalents to establish that this gesturing feature is substantially the same as the claimed scroll keys. The jury will have to decide if they believe that.
Here are the Samsung patents in play — remember, the jury will only be looking at one or two specific claims of the patent, not the broad descriptions here:
3GPP standards patents:
US 7,447,516 — power limiting / reducing interference; part of the 3GPP standard
US 7,675,941 — alternative e-bit technology, part of the 3GPP standard
US 7,577,460 — method of transmitting emails, with and without embedded images, from mobile phone with built-in camera.
US 7,456,893 — device with mode switching between photo mode and image display mode, when switched back to display mode it displays the most recent image viewed before the mode switch.
US 7,698,711 — selecting MP3 mode on a mobile device, playing music in background while performing other functions, with the display continuing to indicate that music is being played.
Question 25: willful patent infringement. Once the jury has decided if Apple’s accused devices infringe Samsung’s patents, they’ll have to decide whether Apple willfully infringed each one. Again, this has the potential to triple damages, so it’s an important question — especially in the case of the two standards patents.
Question 26: patent validity. Here’s where the jury decides if Samsung’s patents are valid or not. Apple argued that Samsung’s patents were invalid, although it didn’t make a big deal out of it. Apple was more focused on showing that its devices didn’t infringe Samsung’s media-related patents, referring to them repeatedly as "old technology" and pointing out that Samsung’s own devices don’t use them either.
Two more very important dollar signs
Question 27: FRAND patent damages. Another dollar sign followed by a blank line — what’s the total amount Apple owes Samsung for infringing the two 3G wireless standards patents that Samsung is required to license under fair, reasonable, and non-discriminatory terms? In this category Samsung is asking for over two percent of net iOS device sales — anywhere from $290 to $399 million.
Question 28: technical patent damages. And what’s the total amount Apple should pay Samsung for infringing its other three patents? Samsung's only asking for $22.8 million here, but jury will have to dig deep into complex financial documents and expert opinions to first determine if these patents were infringed, and then what they should be worth. It’s not not going to be a quick process.
Question 29: specific damages. Samsung's asking for up to $421.8 million in total damages, and the jury is asked to break down its damages award per Apple product, just as it did with Samsung’s products for Apple’s claims.
FRAND and patent exhaustion
Question 30: FRAND and breach of contract. This is where it gets ridiculously legal and wonky. Apple argued strenuously that Samsung had broken its promises as part of the 3G wireless standards organization to first disclose any patents it had on 3G technologies and then to license those patents under fair, reasonable, and non-discriminatory, or FRAND, terms. The jury has to decide whether Samsung broke those promises — if they did, they breached their contract as part of the standard group and will have to pay Apple.
Question 31: antitrust violation. Even more wonky. The jury has to decide whether Samsung improperly used its standards-essential patents to violate antitrust law by illegally monopolizing the market related to the 3G standard. At this point the jury almost certainly doesn’t care anymore — they’ve decided the bulk of the case, and these decisions aren’t going to seem like they matter.
Question 32: damages. How much should Samsung pay Apple for the improper use of its FRAND patents?
Question 33: patent exhaustion. The entire exercise ends on a magnificently boring note, as the jury has to consider the doctrine of patent exhaustion. Is Samsung barred from suing Apple over its two standards-essential patents because Apple purchased chips that implement the standard from Intel, which has a license from Samsung? Samsung argues that Apple’s argument is flawed because the chips were manufactured and shipped overseas, while Apple literally produced receipts showing the chips were bought in the US. Receipts. For wireless baseband chips. For the iPhone. This moment will undoubtedly be the nadir of enthusiasm for the jury.
Undoubtedly the nadir of enthusiasm for the jury
Nine people alone in a room with a box of cellphones and tablets. Between them, they have to arrive at some 700 unanimous decisions that could ultimately distribute up to $2.5 billion. Some of these decisions seem relatively easy, while others will demand an extreme amount of concentration and focus just to understand before answering. This will not go quickly.
This will not go quickly
But perhaps that’s the plan — Apple and Samsung both have an incredible amount to lose if the jury returns any sort of verdict, and it will be a disaster for Apple if the jury can’t decide and comes back hung on any of the key questions. Having the jury take time to deliberate on all of these detailed questions will just provide more and more time for the reality of this case to hit home, and for Apple and Samsung to settle, just like the judge has been repeatedly asking them to do. We’ll see what happens as the days go on.