Friday, August 3, 2012

Judge Koh once again bars Samsung from making the 'Apple imitated Sony' argument

Judge Koh shows no signs of bowing to public pressure from Samsung. She stands firmly behind her own and Magistrate Judge Grewal's decisions to exclude certain claims and materials, while trying to conceal her annoyance at Samsung's repeated attempts to justify the use of certain arguments and documents with new legal theories. While it's understandable that Samsung's lawyers wish to preserve the record for an appeal, Samsung keeps banging its head against a brick wall with motions that are creative in terms of presenting a diversity of legal theories but very repetitive as far as the relevant facts are concerned.

After confirming that Samsung won't be allowed to use such "evidence" as pictures from the 2001: A Space Odyssey movie and the Tomorrow People TV series, Judge Koh also ruled on an Apple motion necessitated by Samsung's use of arguments and references to evidence concerning a "Sony style" design project at Apple in its trial brief. Apple didn't ask for a new ruling: it merely brought a motion to enforce a previous order by Judge Grewal.

Samsung's "Sony style" theory is that Apple "derived" the iPhone design "from the designs of a competitor--Sony". Steve Jobs apparently told some designer that he'd like a Sony-style design for the iPhone. But the relevant question for the admissibility of Samsung's related argument and evidence is not whether this is an interesting anecdote or exposes Apple as a hypocrite who lets himself be inspired by another company's designs but sues those who imitate his products. Those aren't legal concepts that make an argument or a piece of evidence admissible in a jury trial. Judge Koh notes that "[i]If this evidence were relevant at trial, it would be to prove that Apple's patents are obvious in light of Sony prior art, but Judge Grewal has already excluded this theory from the case".

At some point -- but too late -- a Samsung expert argued that some of Apple's design patents were obvious over the designs of two Sony products, the Sony Ericsson W950 Walkman Phone and the Sony K800i phone. Whether or not this kind of argument would have merit is a different question (I don't see particularly striking similarities between those devices), the problem is that Samsung disclosed it too late and Apple did not have a chance to conduct discovery.

In Judge Koh's summary, Samsung wanted to use the "Sony style" evidence for the following purposes: "(1) [to] rebut Apple's creation theory that the iPhone was 'revolutionary'; (2) to rebut allegations of copying; (3) to establish that the industry at large was moving toward the basic design concepts; (4) to prove design functionality; and (5) to rebut allegations of willfulness."

Judge Koh has now clarified once more that Samsung is barred from using the "Sony style" evidence for purposes 1, 2, 3 and 5. Apple's motion did not relate to purpose 4. Samsung will be allowed to use an Apple-internal email concerning the functionality of the iPhone design and portions of an expert report that presents Sony's designs as evidence of the functional nature of the iPhone design.

Judge Koh did not consider it a viable option to tell the jury that the Sony designs Samsung claims Apple copied "show that Apple was inspired by Sony to create the iPhone design, but that they may not consider this evidence to find Apple's design patents invalid". Realistically, the presentation of such evidence could lead to jurors voting in favor of invalidation regardless of what the court says. This potential prejudice to Apple outweighs the anecdotal relevance of Apple's "Sony-style" design project.

The same field-of-use restrictions (purposes 1, 2, 3 and 5 excluded, but purpose 4 allowed) apply to the testimony of Shin Nishibori, an Apple designer involved in Apple's Sony-style design project.

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