Apple Argues that Copying Was Built into Samsung’s Development Process

| Analysis

Apple v. SamsungApple told a jury on Tuesday that Samsung didn't just copy Apple's intellectual property, but that deliberately copying the iPhone was part of Samsung's "development process." The accusation came during Apple's opening statements in the second big patent infringement trial between the two companies.

According to Re/code, Apple told the jury that Samsung would try to paint a picture where companies routinely copied each other in a process called "competitive intelligence." Apple attorney Harold McElhinny told jurors that this wasn't the real story when it came to Samsung's attempts to get its flagging smartphone business off the ground in the wake of the iPhone's release in 2007.

“Samsung did not stop with competitive intelligence,” he told jurors. “Copying the iPhone was literally built into the Samsung development process.”

Contrary to many pundit predictions, Apple also sought to distance this suit from Google. In comments intended to rebut any effort by Samsung to simply claim that it got its software from Google, Mr. McElhinny said, "This case is not about Google. It is Samsung that has made the decision to copy these features."

According to The Verge, Mr. McElhinny also said, "It’s Samsung, not Google selling these phones. It’s Samsung making these things, and infringing."

Getting to the heart of Apple's long-standing complaint about both Samsung and Android, the attorney told jurors to ignore any attempt by Samsung to trivialize Apple's inventions. He said that Apple would show the jury that the patented inventions Apple is suing over cover fundamental features.

"Samsung copied many many features, but there are limits in what we can accomplish in a trial. We can't try 50 patents," Mr. McElhinny said.

Apple's argument from the beginning of its patent war with Samsung and other Android OEMs is that Apple risked everything on the iPhone, and that these companies copied the results of that risk without having to take that risk. Apple won almost US$1 billion in damages from Samsung in the first lawsuit to go to trial, but Apple has said that what it really wants is for Samsung to stop copying its inventions.

It remains to be seen if even a victory in this trial will help achieve that goal, but just in case, Apple is asking for another $2 billion in damages, or $40 per phone. Apple also has other patents involved in a third trial currently in front of Magistrate Judge Paul S. Grewal.

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Yea and Apple steals -


And since Samsung stole 20 times more, they should pay 20 times more, right?



Yea and Apple steals -

If you would have carefully read the article you cite, you would see that there is no proof of Apple having stolen anything. From the article (emphasis mine):

Michael Kroll, a Syosset, N.Y.-based patent attorney and engineer, called the one-time payment “nickels and dimes” for Apple, which has a market capitalization of $57.4 billion, reports the AP. “A settlement doesn’t mean anyone’s right or wrong. In general it’s just the cheapest way to get on with life,” Kroll said. “You do what’s best at the time. I’m sure that’s what Apple was thinking.”

As for Samsung, the graphic Apple has used in the past, showing Samsung phones before iPhone, then after iPhone, speaks quite clearly as to how Samsung blatantly copied the iPhone.



As I see it, this new round of court time is a double-edged sword.

One side of the blade clearly has the capacity to cut Samsung’s strategy to shreds if Samsung loses yet another case using their FRAND vs design patent portfolio extortionist approach (let us copy your design in exchange for us granting you license to use our standards patents under FRAND terms or else we will demand unreasonable terms that we know you will not accept and counter-sue you when you sue us for theft). It is clear that, thus far, professional legal opinion is not distracted by such attempted obfuscation and is having none of it. The media and the public, on the hand, no less than the thundering investor herd, are another matter.

Therein lies the other blade in waiting, poised to slice Apple on their public face, as the press - bless their little throbbing well-meaning hearts - bend over backwards to be even-handed to both companies (I’ve even heard one analyst refer to Apple and Samsung as a ‘pair’ eliciting from me an involuntary shudder), addressing each company’s arguments as if they have equal merit, and even going so far as to play devil’s advocate for Samsung’s ‘prior art’ line of reasoning. While some of the press, like Bloomberg West, are tech-savvy and know the distinction, in their attempts to get ‘expert’ opinion and discussion, sometimes create a partisan (read ‘anti-Apple’) and disinforming platform that can lead the non-tech savvy public to think that Apple are being unreasonable, or worse, defensive in the face of competition against whom they cannot compete with innovation. This has been Samsung’s and the anti-Apple camp’s contention since day one of Samsung’s feigned shock and bewilderment that they should be hauled before the courts. Apple have to be focused on not simply defending against that side of the blade, but attacking it with reason and evidence. Even then, there remains the risk that Apple’s image may suffer in the eyes of the inattentive and the ill-informed.

Finally, this all works best for Samsung the longer these cases drag out and tax public patience; pressure in the form of public sentiment will mount on Apple to capitulate in the name of peace and just move on; whereas a fast strike that puts the adversary down with an unambiguous win works in Apple’s favour.

Despite the fact that Apple’s best response to knock-offs is continued improvement in existing products and innovation in new ones, these court cases are important in order to slow the rot of theft, and send the signal, particularly to parts of the world where IP theft is rife, that ill-got gains will not come cheaply.

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