It's not easy finding a jury in Silicon Valley for a patent trial pitting Apple against Samsung.
More than a half dozen times, US District Judge Lucy Koh excused potential jurors in the case because they owned Apple stock. As she tried to find eight jurors from among 74 candidates on Monday, three were excused because their spouses worked at Apple or a Samsung subsidiary. One electrical engineer who works at Google was excused after he pulled out his Android phone and said his job is working on them.
And one woman had ties to both Apple and Samsung.
"Well, you might be fair then," Koh quipped, getting a laugh from about 100 people packed into her courtroom in San Jose, California.
It's a tricky process finding people who don't tilt one way or another in Silicon Valley. Apple and Samsung are massive tech companies whose businesses bleed into many lives, retirement funds and careers. And if you're on the jury in this case, forget about making small talk about that slab of electronics that's ubiquitous in our lives.
"When you take a break or go to the bathroom, you're not allowed to talk about what kind of phone you have or tablet you have," Koh warned jurors. For many in Silicon Valley, that's like saying you can't talk about the weather or your kids.
The trial pits two of tech's biggest titans against each other. Samsung phones were already found to have infringed five Apple patents, but at issue this week is how much Samsung must pay Apple in damages. The Supreme Court in 2016 opened the door to Samsung's view, that damages could be paid based only on the profit from components and not necessarily from the entire phone. Starting Tuesday, jurors will hear Samsung and Apple and their witnesses debate that point, then declare how much of a possible $399 million Samsung really has to pay.
Samsung must pay for patent infringement
Samsung is big enough to absorb a few hundred million dollars from its billions in profit, but the stakes are higher in the technology world. Samsung, joined by allies like Facebook, Google and Dell, wants a world where patents are narrower in scope and less likely to deal a major financial blow. Apple, which counts big fashion industry names like Calvin Klein as allies, wants the rest of the world to put a premium on design.
The companies are big enough that it's also tricky finding jurors who didn't know about the case, too. Questioning of a narrower pool of candidates focused on whether they'd heard about Apple v. Samsung. Since it began in 2011 and went through many phases of trial, it's no surprise many jurors said they had.
"I've been following it for years," said one man who eventually was excused. "I'm in the computer industry."
Another was excused after he said his company makes wireless tracking devices that compete with Samsung products.
And of course, many were excused for more ordinary reasons, like scheduled business trips, duties taking care of children and financial hardship for people who run their own businesses.
It got to the point that Koh expressed some surprise when seeing how few juror candidates remained at one point. "We've lost so many people," she said. "We had so many casualties this morning."
After several hours during which the judge and lawyers tried to weed out anyone who wouldn't give both companies a fair shake, the court appointed a jury of eight people at the end of the day.
Opening arguments in the trial are set to begin Tuesday.
Apple gets an earful
Some jury candidates gave Apple an earful.
"I have a personal dislike for Apple. I feel like they stole a lot of ideas from other people. And I've been personally burned by their products," said one woman who works in information technology. She's had problems with warranties and customer support. And don't get her started on dongles to get new Apple devices working.
Added another, "I'm not a big Apple lover. I have a problem with companies that are extorting money from other companies."
One man was displeased with how Apple decided to repatriate most of the $252 billion it held overseas through the Trump administration tax plan.
"To be frank, the way they kept money overseas -- it just kind of bugs me," said the jury candidate, an IT manager at a small company in Oakland. "I've never been an Apple user at all, I never owned an Apple product, I never used their equipment."
To be fair, though, he added that he doesn't have much affection for Samsung, either. "It's two big companies going at each other," he said. "I don't have a great love for big companies."
Apple also could take some satisfaction that, among a 30-person candidate pool, nearly all said they owned an iPhone.
Samsung might not like that, but both companies had a chance to cringe because of one candidate. He pulled his old-school flip phone out of his pocket and declared, "I don't like smartphones."
First published May 14, 1:08 p.m. PT.
Update, 3:58 p.m. PT: Adds more details about jury selection.
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