Tuesday, March 12, 2019

Testimony on stolen patent deals huge blow to Qualcomm's San Diego infringement case against Apple

The ongoing Qualcomm v. Apple patent infringement trial in San Diego (Southern District of California) is generally the least interesting part of the earth-spanning dispute between these two companies. As I explained in the blog post I just linked to, it's basically an attempt to get a better outcome in a jury trial than Qualcomm achieved in the ITC, where the most experienced Administrative Law Judge and his six bosses appeared to be underwhelmed by a complaint over the same patents-in-suit as in the San Diego case.

But there is one aspect of that San Diego case that's definitely interesting. It's a perfect example of how truth is sometimes stranger than fiction. If we come from the reasonably safe assumption that Arjuna Sivasithambaresan--who simply abbreviates his last name as "Siva"--testified truthfully under oath in two different fora (ITC and Southern District of California), Qualcomm's '949 patent was filed on an invention a then-Apple employee (now with Google) actually made.

In other words, the most reasonable inference from that testimony is that Qualcomm decided to sue Apple over a patent Qualcomm applied for because it learned about the idea from a then-Apple employee. That story of a robbery attempted with a weapon stolen from the victim would be unbelievable in its own right, and maybe not unprecedented in the history of patent infringement cases (it may or may not be), but certainly rare enough that I hadn't heard anything remotely as outrageous in all those years of monitoring patent lawsuits. Actually, the situation is even more bizarre:

Even though Qualcomm already became aware of this problem in the aforementioned ITC case over the same patents, and decided to drop the '949 patent from the ITC case shortly thereafter (most likely for this very reason), Qualcomm nevertheless decided to give it another try in San Diego. "Unbelievable" is not strong enough a word to describe this. Not even remotely. It's not just that Qualcomm is hardly going to prevail on the '949 patent: a story of a stolen patent undermines a plaintiff's credibility to an extent that's the next best thing to self-sabotaging the entire case.

In her opening statement, Apple's lead counsel in this case, Fish & Richardson's Juanita Brooks, already told the jury what Mr. Siva was going to testify. Based on Apple's experience with him in the ITC as well as based on his deposition in connection with the San Diego case, the assumption apparently (and quite understandably) was that Mr. Siva would tell the San Diego jury the very story he had told (more than once) before.

There was some temporary uncertainty as to whether Mr. Siva would go down to San Diego and testify. In the alternative, Apple would have had to tell the jury that what Mrs. Brooks announced in her opening statement just didn't work out, so the jury would have had to content itself with a videotaped deposition of Mr. Siva. In that context, Apple asked the court for a curative instruction (which is no longer needed since Mr. Siva ultimately did testify in front of the San Diego jury), and raised the issue of potential "witness tampering."

The parties' lawyers disagree on what exactly happened and what the consequences should be. What's certain is that Mr. Siva had been represented by Wilmer Hale, a firm that counts Apple among its clients, earlier on, but just last week he was suddenly represented by San Francisco-based attorney Matt Warren. Mr. Warren is a former Quinn Emanuel partner, and QE is representing Qualcomm in its infringement cases against Apple. What had Apple puzzled was that Mr. Siva--the former Apple engineer now employed by Google--suddenly didn't want to testify voluntarily. One version of the story is that Mr. Warren wanted Apple to subpoena his then-client; Apple's version suggests the problem might have been bigger, and a subpoena would have contracted Apple's opening statement. After Apple's allegation of witness tampering came up, Mr. Siva (the witness) appointed different counsel again, went down to San Diego, and delivered testimony that is pretty damning for Qualcomm's case.

From the outside, it's far from inconceivable that Qualcomm selected the '949 patent for the San Diego trial because its lawyers somehow hoped Mr. Siva wouldn't show up in San Diego and say essentially the same thing as in the ITC: that the claimed invention was his. not Qualcomm's.

But it's impossible to know who made the decision to give the '949 patent another try (after the ITC experience), and on what basis.

That's why Apple's lawyers phrased their suspicion of witness tampering somewhat carefully (according to a filing made today). They steered clear of specifically accusing Qualcomm or Quinn Emanuel. The temporary uncertainty surrounding Mr. Siva's willingness to appear in front of the San Diego jury was, however, strange enough that Judge Sabraw said: "I do understand why Apple is very upset."

Without formally moving for sanctions, Qualcomm's lawyers stated they might seek all sorts of sanctions against Apple and its counsel, including a directed verdict on infringement and validity or the termination of Apple's lead counsel from the case. At this point I doubt anything serious is going to happen. If Mr. Siva had not appeared in San Diego, then there would have been something to fight about. But whether or not there was any uncertainty as to his willingness to come down to San Diego (which Qualcomm's lawyers deny), it's irrelevant to the jury. The jury heard his testimony, and it couldn't have gone worse for Qualcomm.

Here's Apple's latest filing related to this subissue of the wider dispute, and that filing describes the chronology of events (this post continues below the document):

19-03-12 Apple Response to ... by on Scribd

On this occasion I'd also like to show you Apple's motion for judgment as a matter of law, claiming that Qualcomm failed to prove infringement, willfulness, and its damages claims (invalidity is not addressed by that motion because it's Apple's--not Qualcomm's--case to make, and the motion was filed after Qualcomm's case-in-chief, not after Apple's):

19-03-11 Apple Motion for J... by on Scribd

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