Wednesday, January 2, 2013

Judge Koh throws out evidence Apple and Samsung provided in circumvention of page limits

Judge Lucy Koh is doing some clean-up in the Apple v. Samsung litigation that went to trial in the summer. This morning she issued an order striking evidence that Apple and Samsung provided in the form of declarations attached to their briefs but which, in the judge's opinion, presented arguments that were "not explicitly articulated within the briefing page limits". Judge Koh wanted the parties to use declarations "for corroboration purposes" only.

She had warned the parties beforehand that she was going to strictly enforce the page limits, and today's order is strict indeed.

Today's order says "[t]he Court has not relied on any of this documentation in ruling on the parties' post-trial motions". The grammatical tense of that sentence refers to decisions that have been made, and this could indicate that other post-trial orders are imminent, but the substance of the stricken materials is exclusively related to the question of injunctive relief. In mid-December, the judge denied Apple's motion for a permanent injunction, a decision that Apple appealed later that same week.

By formally striking certain evidence, the judge makes it much harder for Apple and Samsung to rely on such evidence in the appellate proceedings. A party that wants to use stricken evidence would firstly have to convince the appeals court that the related order to strike should be reversed.

These are the stricken materials:

  • a declaration by NYU professor Tülin Erdem in support of Samsung's opposition to Apple's motion for a permanent injunction, arguing that Apple's three utility patents that the jury deemed infringed don't cover features that drive consumer demand;

  • a declaration by consultant Ramamirtham Sukumar in support of Samsung's opposition to Apple's motion for a permament injunction and damages enhancements, criticizing a report by an Apple expert (Professor Hauser, mentioned further below);

  • a declaration by Wharton professor Yoram (Jerry) Wind to the same effect;

  • nine paragraphs from a declaration by designer Sam Lucente in support of Samsung's opposition to various Apple motions, arguing that Samsung's designarounds don't infringe on Apple's D'305 user interface design patent;

  • large parts of a declaration by Samsung consultant Michael J. Wagner denying irreparable harm and a causal nexus between any infringements and competitive harm;

  • one paragraph from a declaration by Apple consultant Marylee Robinson, rebutting a Samsung declaration relating to supplemental damages;

  • 11 paragraphs from a reply declaration by MIT/Sloan professor John R. Hauser in support of Apple's motion for a permanent injunction, responding to criticism from Samsung experts Wind and Sukumar;

  • a declaration by University of Toronto professor Karan Singh in support of Apple's injunction request, arguing that Samsung's purported workaround still infringes the '915 pinch-to-zoom API patent (I reported on that document in detail);

  • various parts of a declaration by Apple consultant Terry Musika in support of a permanent injunction, arguing that Apple and Samsung are direct competitors, that Samsung's continued infringement would cause long-term harm to Apple, that the infringed designs and trade dress influence consumer purchasing decisions, and a part relating to user interface patents; and

  • six paragraphs from a declaration by Apple's Senior Vice President of Worldwide Marketing, Phil Schiller regarding the competitive situation between Apple and Samsung.

These are the stricken paragraphs from the Schiller declaration:

"4. Among others, Samsung’s Galaxy S and Galaxy S II smartphones have been key iPhone competitors in the market. Samsung adopted the strategy of classifying several phones under the Galaxy name in part to compete with the iPhone, so that rather than having a seemingly random offering of several phones, it had a unified brand for its smartphones even though it continued to offer slightly customized models to each carrier.

5. The Galaxy S II line of phones includes the Galaxy S II (AT&T), the Galaxy S II (T-Mobile), the Galaxy S II Skyrocket (AT&T), and the Galaxy S II Epic 4G Touch (Sprint). The Galaxy S II line was introduced as a flagship product for Samsung, and in its advertising and marketing of these Galaxy S II models, Samsung has positioned them as direct competitors to Apple's iPhone 4 and iPhone 4S. As an example, during the Super Bowl and throughout the spring of 2012, Samsung advertised the Galaxy S II in video spots that parody young consumers who were waiting outside of a store, which looks like an Apple store, awaiting the launch of a new product. It was apparent to potential consumers that Samsung was targeting and referring to Apple. Other Samsung advertising has targeted Apple, and reviewers have consistently compared the Galaxy S II products to Apple's iPhone products. These Galaxy S II products will also compete against the iPhone 5, which will soon be available in the United States.

6. In addition to the Galaxy S II line of phones, other current phone offerings of Samsung compete with the iPhone 4 and the iPhone 4S, which will be offered at a lower price point going forward, and until recently have also competed with the iPhone 3GS. Samsung's other competing phones include the Prevail (offered through Boost Mobile), the Droid Charge (offered through Verizon), the Galaxy S 4G (offered through T-Mobile), and the Showcase (offered through CSpire Wireless).

7. Apple and Samsung compete not only where both iPhones and Samsung phones are offered through the same carrier (including AT&T, Sprint, Verizon, C-Spire Wireless, and others) but also in competing carriers that carry one but not the other brand of phone. For example, T-Mobile does not carry the iPhone, but it nevertheless competes directly against the iPhone with advertising directed to attract Apple customers. Apple and Samsung compete in all parts of the smartphone market because consumers can and often do shop different carriers when in the market for a new phone.

8. The smartphone market is undergoing a critical transition, as the mobile phone market undergoes a tectonic shift away from feature phones to smartphones. This presents a unique, time-critical opportunity for Apple or Samsung to acquire customers as more and more consumers become smartphone users for the first time. One of Apple's goals is to convert these feature phone users into iPhone users. This is important not only because of the value of a customer's initial purchase of an iPhone, but also because that customer is buying into the Apple ecosystem.

9. In our experience, once customers own an Apple product, they tend to be loyal to Apple products. Thus, first time iPhone customers are likely to buy another iPhone as well as other Apple products, including apps from Apple's App Store, music and other media from the iTunes store, and accessories for their Apple products. Moreover, it is harder to get people to switch from using a competing smartphone operating system platform (like Android) to Apple's iOS system than it is for Apple to retain customers that have already been introduced to the Apple ecosystem, in part because they become familiar and comfortable with how their phone works. We have also seen that friends and family members of an iPhone user are more likely to buy an iPhone themselves when they are in the market for a phone. While the effect is hard to quantify, the reality in the market is that the loss of sales, particularly the loss of sales to new smartphone purchasers, to Samsung causes significant ongoing injury to Apple well beyond the lost income on the individual sale."

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