I wasn't going to comment on the new Apple v. Samsung trial until after the parties' opening argument, but I've changed plans because Judge Koh made a decision I really wouldn't have expected. That decision, all by itself, could easily give rise to a retrial. (I see a fairly high likelihood of a post-appeal retrial anyway when I compare the damages theories allowed by Judge Koh to what the highest-ranking U.S. patent judge, Chief Judge Randall Rader of the United States Court of Appeals for the Federal Circuit, said on September 11, 2013 about a Motorola damages claim against Apple. In that case, the Chief Judge found a damages claim of $300 million over "one patent in a crowded field" downright "crazy"; at the trial starting later today, Apple is apparently seeking $2 billion over five patents, i.e., an average of $400 million for each patent in a crowded field.)
Samsung had objected to Apple's proposal to show to jurors a Federal Judicial Conference video that shows people using Apple products and highlights Apple products in the context of patentability criteria such as novelty. Samsung argued that the previous version of that video, which was shown to the summer 2012 Apple v. Samsung jury in the same district, should be used because it can serve the same purpose without being prejudicial to Samsung. But late on Sunday, Judge Koh overruled this objection, without citing any reason.
This decision marks a surprising departure from Judge Koh's previously consistent efforts to ensure a level playing field for Samsung in Apple's home court. It's even more surprising in light of Judge Koh's recent reference to empirical evidence of national bias by U.S. juries in patent cases against foreign companies. If Judge Koh is (rightly) concerned about such bias, for which there is even statistical evidence (which she cited), I thought it would have been a no-brainer for her to just simply use the same video as at the summer 2012 trial instead of one that is, in some parts, like a propaganda video for Apple's innovative capacity.
I think the video overstates Apple's contributions to innovation. On the one hand, there's no doubt that the iPhone and the iPad changed and created entire product categories. On the other hand, in the context of patent law it's key to consider what existed before. Apple's European patent infringement lawsuits against Samsung, Motorola Mobility and (to the extent they were even adjudged) HTC have been a total failure -- mostly non-wins and not a single lasting win -- because the (unbiased) judges over here found with respect to (almost) each and every Apple patent that came to judgment after a challenge that whatever Apple added on top of the prior art, if anything, was not inventive by European engineering-focused standards.
The only thing worse than showing this video to jurors that could be done to manipulate jurors would be to bring the "Steve Jobs patents exhibition" to San Jose and give the jury a guided tour through it before the trial starts.
It would be wrong to say that Judge Koh generally sides with Apple. In the single most important context to Apple, its pursuit of a permanent injunction, Judge Koh has twice (before and after a partly-successful appeal) agreed with Samsung that Apple failed to establish a causal nexus between the infringements identified (which are now being apppealed) and the alleged irreparable harm. I had actually thought in both cases that Apple was going to win an injunction of some scope -- maybe not over all of the asserted patents, but over some of them.
But before the trial in the second Apple v. Samsung case has even started, I'm concerned (because I am, quite frankly, tired of all those Apple-Samsung trials) that whatever Apple may win at this trial will be tainted and might face a really rough ride on appeal, which means that another group of jurors may have to be selected and spend weeks in court because things weren't handled correctly and fairly the first time.
Unlike Apple, I have been consistent over the years on issues like this. In May 2012 Apple indicated in a court filing that it would ask the court to obscure the Samsung logo on monitors in the courthouse because it could be prejudicial to Apple, and this is what I wrote back then:
"At first sight, this may seem very funny, but I actually understand why Apple would make this request: at a conscious level, it can show to jurors that Samsung actually contributes technology to the U.S. government, and at a subconscious level, it creates the impression of the court being Samsung territory."
I now support Samsung for the same reasons for which I supported Apple then. I find Judge Koh's decision very troubling.
[Update] I summed up my pre-trial position on Twitter and Google+ as follows: "Apple deserves to emerge victorious from the trial, but only on subset of claims, not to the tune of $2 billion, not with propaganda videos." As for the first part, Apple had a more favorable claim construction outcome, and it is taking five patents to trial vs. two Samsung patents. I'm not doing any work for Apple or Samsung, have never done any, and won't do any anytime soon. I plan to release my app on Android (the most popular platform on a worldwide basis, and the platform of my choice) first, but also on iOS later. [/Update]
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