Ina Fried

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Samsung and Apple Speaking to One Jury, Many Audiences

There may only be a single jury in the patent battle between Apple and Samsung, but both sides are trying to connect with more than just those seven men and two women.

At times, the lawyers in the case are playing to the judge, while at other times they are trying to score points with the press and the so-called “court of public opinion.” And, since the attorneys arguing the case are from outside law firms, sometimes they have to do things just to look good for their clients — Apple and Samsung.

Beyond that, both sides are also preparing for another audience — the appeals court. Whichever side loses, and perhaps both companies, will inevitably appeal to a higher court. Indeed, among the many lawyers in court, each side likely has at least one whose sole job it is to take notes about goings-on that could lay the groundwork for appeal, something known in legal speak as “reversible error.”

Samsung has been the most upset by Judge Lucy Koh’s rulings, arguing that the jury is not getting to hear key evidence both that Apple was influenced by Sony and that Samsung had its own large-screen touch devices in the works before the iPhone debuted.

Lawyers for Samsung have objected, made motions for reconsideration and, at one point, literally begged the court to change its mind.

While most appeals are handled once the case is wrapped up, certain kinds of appeals can be taken up even while the jury is still hearing arguments. If one side feels it has been deeply and clearly wronged, it can make an emergency appeal to a higher court. As disappointed as it has been with some of the decisions in the case, even Samsung hasn’t taken that step. Of course, the trial is only two days in.

Samsung’s lawyers have also been laying the groundwork for the inevitable post-trial appeal, should it lose its jury case. That fact has not gone unnoticed by anyone in court, particularly Judge Koh.

During Monday’s arguments, Koh interrupted attorney John Quinn as he was begging the court to allow evidence of touchscreen phones Samsung was developing prior to the iPhone.

“You’ve made your record for appeal,” Koh told the Samsung attorney, noting the court had already considered and reconsidered Samsung’s request. “Don’t make me sanction you, please.”

There’s a fine line for Samsung.

While it wants to create the impression that it was aggrieved at trial should it lose, it still would like to prevail in the case. And, displeased as it may be with some of Koh’s rulings, this case is slated to go on for a couple more weeks, so the lawyers also don’t want to completely alienate the judge, who will no doubt be called on to make many, many more rulings on what is and isn’t allowed to be heard by the jury.

Apple, too, might benefit from losing at least a couple significant procedural battles to help its appeals case, should the jury find for Samsung in all or part of the case.

While it is Apple that filed the initial suit in the case, Samsung is also countersuing Apple for patent infringement, alleging that the iPhone, iPad and iPod touch infringe on its patents.

The case resumes on Friday at 9 am PT, with Apple Senior VP Phil Schiller set to retake the witness stand, after testifying for only a few minutes before the court ended for the day on Tuesday. Schiller is slated to be followed by Scott Forstall, the head of iOS, the operating system that powers the iPhone, iPad and iPod touch.

AllThingsD will be in court, to make sure you get the latest.


Apple versus Samsung Full Coverage

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