Apple's closing shot hits at Samsung 'copycat' docs

In its closing argument against Samsung, Apple once again hammers away at its rival over internal documents.

Apple attorney Harold McElhinny in court on a previous day.
Apple attorney Harold McElhinny in court earlier during the trial. Vicki Ellen Behringer

SAN JOSE, Calif. -- Apple highlighted its broad collection of Samsung internal documents, and not the millions of dollars spent on witnesses, as reasons the jury should take its side in the patent case it filed against Samsung.

Apple attorney Harold McElhinny delivered the company's closing arguments in the form of a greatest hits from the evidence and testimony delivered during the company's trial with Samsung. However, he put the focus on the paperwork Apple obtained ahead of the trial.

"Witnesses can be mistaken. They can be mistaken in good faith," McElhinny said. "Exhibits that are created in a trial are always created with a purpose. They can confuse, and can mislead. Historical documents are almost always where the truth lies."

Documents have been at the heart of Apple's offense. McElhinny highlighted a series of internal Samsung documents, many of which showed that Samsung looked to Apple's devices for cues when designing its software icons and general features.

One such internal report contained numerous side-by-side slides where Samsung put a pre-release version of its initial Galaxy smartphone next to the iPhone and offered suggestions on how to make it more similar.

"They sat with the iPhone and went feature by feature, copying it to the smallest detail," McElhinny said. "In those critical three months, Samsung was able to copy and incorporate the core part of Apple's four-year investment without taking any of the risks, because they were copying the world's most successful product."

Witness list
Despite the recommendation to focus on paperwork, there's no denying the fact that both sides spent millions on witnesses to make their case. In Apple's case, that included patent expert Ravin Balakrishnan, who told the court he had been been paid $430 an hour and spent more than a year and a half working on evidence for Apple. There was also Samsung's Andries van Dam, who was paid $1,000 an hour and worked 460 hours to undercut Apple's patents.

McElhinny downplayed Samsung's witness efforts, chiding Samsung for not bringing in its top executives to testify under oath.

"From the very beginning, Samsung has disrespected this process," he said. "Apple brought you two of its most senior executives: (Phil) Schiller and (Scott) Forstall. They were willing to face cross. No Samsung execs were willing to come here from Korea and answer questions under oath. Instead of witnesses, they sent you lawyers."

Billions at stake
At stake in the scuffle between the two technology giants are billions, with Apple looking for a damages payout of $2.75 billion, a figure that could double or even triple depending on how the judge comes down on the jury's decision. Apple says Samsung sold 22.7 million devices that infringed on its intellectual property, while earning $8.16 billion in revenue in the process -- about $360 a device.

"The damages in this case should be large, because the infringement have been massive," McElhinny said.

McElhinny spent time trying to convince the jury that they had several options to re-jigger this amount depending on how they want to come down on the companies. Those damages options, which on Apple's end range from $519 million all the way up to $2.48 billion, center on when the jury wants to begin keeping track of when the devices were sold. The two options for that are either when Apple first sued Samsung, or when Samsung sued Apple back -- both do not include royalties.

In its own closings , Samsung's Charles Verhoeven knocked back at Apple, attempting to undercut the company's argument that consumers were confused in the first place.

"You'd think that if Apple is going to ask for over 2 billion in damages, they might have used all the money for the lawyers and witnesses, and tell you if people have been deceived," he told the jury.

"What did we have? (Design expert Peter) Bressler, (who) didn't do any studies, didn't talk to any people, didn't apply this standard. We had Dr. (Susan) Kare, who just looked at images. She just looked, and didn't give any analysis."

According to Apple's attorney Bill Lee, who took up the company's rebuttal to Samsung's closing arguments, the only number worth focusing on is the revenue Samsung pulled in after the company began making devices that looked like the iPhone and the iPad.

"They copied our products and they made $8 billion," Lee said, comparing a jury decision in Samsung's favor to a "get out of jail for free" card.

Complicated effort ahead
Ahead of the arguments, jurors were read 109 pages of instruction that outlined the legal grounds behind the myriad laws and regulations that are a part of the case. U.S. District Court Judge Lucy Koh pleaded with the court to pay attention during what would be the difficult exercise of reading it aloud.

"I need everyone to stay conscious during the reading of the jury instructions, including myself," she said, later telling the jury that "we're going to periodically stand up, just to make sure we're all alive."

That sort of complexity has been the norm for this case, which involves not just patent infringement, but also trade dress and antitrust claims. Along the way, both sides have sparred over the particulars of exhibits and other evidence, to the point where Koh required both companies to limit the number of objections that could be filed. At one point last week she told both sides that her small staff was being overwhelmed with paperwork by "legions of lawyers."

After both sides give their closing arguments, the jury heads to deliberation, a process that begins tomorrow. McElhinny urged jurors not to make a "compromise," or otherwise hold back on the damages portion of that decision, warning that letting Samsung get any of its claims would send a message to other companies that might do the same.

"The world is watching, and the nine of you will have that power, and determine the laws of competition," McElhinny said. "They will not change their way of operating if you slap them on the wrist."

Updated at 5:17 p.m. PT with additional details from the closing.

Complete coverage: Apple v. Samsung, a battle over billions
 

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