Ina Fried

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Apple Lawyer to Frustrated Judge: Yes, We Need All These Witnesses, and No, I’m Not Smoking Crack

Already annoyed by the amount of paperwork in the Apple vs. Samsung case, Judge Lucy Koh boiled over with frustration on Thursday after lawyers for both sides filed a new round of objections over witness testimony.

A big part of Koh’s displeasure focused on the long list of witnesses that Apple said it intends to call in its few remaining hours of time before the jury.

“Unless you are smoking crack you know these witnesses are [not] going to be called,” Koh said, conferring with lawyers before the jury returned from a morning break.

Apple attorney Bill Lee defended Apple’s proposed witness list.

“First, I am not smoking crack, I can promise you that,” Lee said. While a few witnesses might or might not be called, he said the majority would be called and he said Apple had timed their testimony to make sure they would be able to get it all in.

Koh disagreed, quite adamantly, and grew frustrated with the time it was taking to sort out the matter.

“We’re wasting the jury’s time,” she said. “You are being unreasonable.”

In recent days, Koh urged the parties to narrow their case and to again pursue settlement before the case goes to the jury.

Koh called Apple’s proposed witness list unrealistic.

“Come on, come on,” she said. “This is ridiculous.”

Apple said it would even waive some of its objections if needed. “We didn’t mean to burden the court.”

That didn’t appear to curry any favor.

“What are you talking about you don’t want to burden the court,” she said, pointing to 75 pages worth of new objections filed by the parties in the case related to the remaining witnesses.

Update, 11:16 a.m.: Samsung now rushing to get its final experts on the stand to establish the damages it believes it is owed if Apple is found to infringe on Samsung’s patents at issue in the case.

Samsung expert Vincent O’Brien testified that, for the feature patents in question, Samsung would be owed roughly $22.8 million in “reasonable royalties.”

As part of his calculation, O’Brien likened each of the feature patents to an app that someone might download for 99 cents from the App Store. He only gave Samsung a small part of that, with his ultimate royalty ranging around 11 cents to 19 cents per device per feature.

“These are nice features,” he said. “They are desirable features, but they are one of many features on the phone.”

Samsung may also try to use O’Brien’s estimates to show it being reasonable and Apple wanting excessive royalties.

He also based that in part on the fact Apple has paid $1.4 billion in patent royalties to other companies whose patents it has licensed. “These are typical.”

11:27 a.m.: On cross-examination, Apple again pointing out that Samsung doesn’t use some of the patents in its products that it accuses Apple of infringing.

11:40 a.m.: Samsung called another expert, David Teece, to asess how much the company would be owed if the jury finds Apple infringes on the cellular standard-related patents.

Teece calculated that Samsung should be paid between 2 percent and 2.75 percent of net sales on the iPhone and iPad. Based on iPhone sales of $12.23 billion and iPad sales of $2.29 billion in the period in question, Teece estimated a reasonable royalty due Samsung ranging from $290 million to $399 million.

11:49 a.m.: Teece is explaining to the jury how he arrived at that royalty rate, pointing to a bunch of other confidential patent licensing deals. Unfortunately, only the jury gets to see the actual license terms. These are some of the documents that got all the other tech companies hot and bothered — folks like Nokia, RIM, Intel, Microsoft and others.

1:07 p.m.: Back from lunch and Teece is back on the stand for more cross-examination by Apple’s lawyer. Apple gets Teece to agree that no one has ever paid Samsung directly for the standards-related patents Apple is accused of infringing.

1:13 p.m.: Apple’s lawyers get Teece also to agree that he is recommending that Samsung be paid more for the one or two patents at issue, should they be found infringed than the 2.4 percent that Samsung offered to license its full standards-related portfolio of 86 patents.

With that, Samsung rests its case, with a couple minor stipulations

1:16 p.m.: It’s Apple’s turn again. Apple calls Tony Blevins, its vice president of procurement and a 12-year Apple veteran. He oversees getting parts for the iPhone, iPad and iPod lines and supervises some 300 employees.

He’s testifying about the baseband processor, the product that does the functions that is accused of infringing Samsung’s standards-related patents. Apple gets its processors today from Intel and Qualcomm. Historically, Intel was only provider of those chips.

1:24 p.m.: Blevins testifies that Apple pays intel an amount that varies per quarter, but is on the order of $12 per chip. He then shows a few example reciepts.

1:25 p.m.: Next up is former Apple software engineer Emilie Kim. Kim now works at Path after leaving Apple last month. Among her duties at Apple was working on the photos and camera app for iOS.

Kim is describing how the photo and camera apps work, with Apple’s lawyer aiming to draw a contrast between how things are done in iOS and the way they are described in two of the Samsung feature patents that Apple is accused of infringing.

One interesting note here: One of the Samsung patents relates to being in the photo library, taking a photo and then returning to the same photo in the gallery. Apple has Kim show a scenario in iOS where that wouldn’t happen, such as when the device runs low on memory or is restarted.

On cross-examination, though, Kim agrees that under other conditions the user will return to the photo they were looking at.

1:40 p.m.: The parade of witnesses continues with Apple-hired expert Paul Dourish, a UC Irvine professor and former researcher at Apple and Xerox’s Palo Alto Research Center.

Dourish is on the stand to testify that Apple doesn’t infringe on one of Samsung’s digital image-related patent and that the patent should be declared invalid.

2:14 p.m.:We’re back to super nerdy patent stuff, so sparing the details. Now up is another UC Irvine professor–Tony Givargis–who will testify about the validity of another of the Samsung patents at issue.

As expected, Givargis testifies that the Samsung patent he studied–one that covers background playback of music–is not infringed on by Apple and should also be declared invalid.

2:36 p.m.: As an example of prior art, Givargis shows the Sony Ericsson K700i and demonstrates it playing Louis Armstrong’s “What a Wonderful World.”

Apple versus Samsung Full Coverage


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