Ina Fried

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The Definitive Insider’s Guide to Apple vs. Samsung

There have been plenty of dramatic moments in the case of Apple versus Samsung, which some have dubbed the patent trial of the century.

But let’s be clear. There has also been a lot of downtime. As a result, there has been quite an opportunity for those in the court to familiarize themselves with both their surroundings and the main voices in the trial.

The Setting
All the action is taking place on the top floor of the Robert Peckham Federal Building and Courthouse, a drab five-story building in downtown San Jose.

Though known as the “ceremonial courtroom,” and larger than Judge Lucy Koh’s normal digs, Courtroom 5080 is nothing special. It’s filled with wood and paneling in various shades of brown, along with well-worn carpeting, also of the brown persuasion. Another sign of its age — aside from the decor — is the broken microphone that prevented the judge from easily conferring with lawyers outside the jury’s earshot.

Just beyond the area for the court reporter and other of Koh’s staff sit the large wood tables so packed with lawyers that the opposing sides are practically touching one another. At one point in the trial, there weren’t enough flash drives for both sides to have one. Judge Koh suggested the two sides could push their tables together and share. Apple lawyer Bill Lee said it was fine to leave the drive on Samsung’s table.

“I think we are close enough already,” Lee said.

Behind the main tables are a second row of smaller metal tables for a second group of lawyers. Given the fact that lawyers still outnumber available chairs, it is common to see a changing of the guard as one witness steps down and another takes the stand. For football fans, it looks kind of like when the offense leaves the field and the kicking team comes on after a failed third-down conversion.

The Judge
The most prominent figure in the case is Lucy Koh, the federal judge presiding over the case. A 2010 appointee of President Obama, Koh is a former intellectual property attorney herself, and knows all the tricks. She’s a stickler for deadlines and the clock, putting both sides on a tight schedule, with just 25 hours each to make their case to the jury.

Throughout the trial, Koh has shown an incredible attention to detail, keeping detailed notes on exactly which promises are made and which items are due when. Koh has also displayed remarkable recall, frequently proving to have a better memory of witness testimony than any of the lawyers.

Patient only to a point, Koh has lost her cool on a number of occasions, most often due to a barrage of filings from one side or the other.

The first notable outburst came on the opening day of the case, as a Samsung lawyer literally begged Koh to allow in some late-disclosed evidence relating to phones that Samsung had in development before the iPhone. After his begging failed to elciit a reversal, Quinn made a further motion for reconsideration.

“You’ve made your record for appeal,” Koh said. “Don’t make me sanction you, please.”

Later that morning, Samsung issued a press release commenting on some of the information that Koh had excluded, suggesting that “fundamental fairness requires that the jury decide the case based on all the evidence.” That infuriated Koh, who demanded to know who authorized the release.

There were other temper flares from Koh. Most famously, she asked Apple’s lawyers if they were smoking crack when they planned a long list of witnesses for the short amount of trial time they had remaining. Koh also lashed out at Samsung for poor management of their time, saying it was the company’s own choice to use more than half its time cross-examining Apple witnesses rather than building its own case.

But Koh has also been the voice of reason at times, urging both sides to either narrow their case or else to consider settling.

“I see risk here for both sides if we go to a verdict,” Koh said late in the trial.

The Many Lawyers
While in-house lawyers are present for both companies, all the speaking parts are handled by the companies’ outside lawyers. And, man, are there a lot of them. Apple is represented by two firms — Morrison Foerster and WilmerHale. Samsung is represented by Quinn Emanuel.

While there are dozens of lawyers of record for each side, most of the arguing and questioning of witnesses is handled by just a couple of attorneys per side.

For Apple, the lead counsel is Harold McElhinny, who projects a balance of folksy charm and technical sophistication. Among his trial credits is leading a case where a jury found Samsung guilty of willfully infringing a Pioneer patent, awarding the company more than $59 million in damages. During the earlier part of his career, McElhinny was also part of a team that represented Fujitsu in a major copyright case with IBM.

On some of the patent issues, Bill Lee of WilmerHale is on point.

Bill Lee

The middle-aged, mild-mannered Bostoner is the one who replied that he was not using crack, when Koh suggested Apple’s lawyers were high if they thought they could call all of their witnesses in the time they had remaining.

Rachel Krevans brings two decades of patent knowledge to her questions, able to make the most of just a few minutes of questioning of a witness.

Samsung is most often represented by Quinn Emanuel partner Charles Verhoeven, a fast-paced trial lawyer.

Hard-charging Tom Quinn has been heard from less often, but has had some notable clashes with Judge Koh, in some cases drawing her ire after only having spoken a handful of words.

Quinn Emanuel partner Victoria Maroulis has been the Samsung lawyer most likely to pop up when the judge needs the legal basis for a motion or other quick answer.

A dead ringer for “Lost” star Titus Welliver, salt-and-pepper-haired Kevin P.B. Johnson took a no-nonsense approach in his questioning and cross-examination of several witnesses.

Actor Titus Welliver (but it is also a darn good likeness of Samsung lawyer Kevin P.B. Johnson)

The Jury
After a full day of jury selection, seven men and three women were chosen to hear the case of Apple versus Samsung. However, on the first day of trial, one woman asked to be excused, noting that she hadn’t fully appreciated just how long things would run.

That leaves nine people to decide the multibillion-dollar case. To find infringement on any of the counts, all members of the jury must agree on that matter. It’s an eclectic group, including a 35-year hard-drive industry veteran, a bicycle-store manager and a youthful videogame enthusiast with a penchant for wearing rock-band T-shirts.

The Star Witnesses
Apple’s case began with a bang, as iOS chief Scott Forstall, top marketing exec Phil Schiller and designer Christopher Stringer all told tales of the iPhone’s early days, or “project purple,” as it was initially known. Stringer even took the jury inside Apple’s design studio, explaining the kitchen table around which Apple designs virtually all of its products.

Several Samsung executives also testified, though none really spilled any secrets or told any captivating stories. The most impressive was Jeeyuen Wang, a young woman on Samsung’s design team, who told of the long hours she spent creating icons for the Galaxy, shortly after giving birth.

“I slept perhaps two hours or three hours a night,” she said. “That was about it.”

Wang recalled how she couldn’t breastfeed regularly because of the heavy workload.

“Those were difficult times,” she said.

The Experts
Most of both sides’ cases consisted of expert testimony. For every patent at issue, it seemed, there was another highly paid professional or academic to take the stand. Most had racked up hundreds of hours in bills, with rates ranging from a low of $250 per hour to a high of $1,000 an hour.

“I’d estimate that Apple and Samsung collectively spent more on experts than is normally spent on lawyers in the average mid-sized patent case,” said Santa Clara University Professor Brian J. Love.

The verdict hinges, in significant part, on which set of experts the jury finds most credible.

The Supporting Cast
Judge Koh is assisted by a small “ragtag” bunch — her words. They include her usual staff, as well as a few borrowed hands. Despite the help, and long, long hours, Koh has frequently complained that Apple and Samsung are drowning the staff in paperwork.

Most frequently heard from among the staff has been the court reporter, Lee-Anne Shortridge. Despite the barrage of technical jargon and acronym soup, not to mention some fast talkers and soft speakers, only a few times a day does Shortridge have to ask a witness to repeat an answer.

Each day, there is room in the courtroom about two dozen press and a roughly similar number of members of the public. There is also an overflow room for additional reporters and trial watchers. Two different courtrooms, also on the fifth floor, have alternately served as the overflow room.

The “public” section actually consists of rather few ordinary Janes and Joes. Many of the seats each day are taken up by lawyers for other tech companies with peripheral ties to the case, including companies such as Research In Motion and Intel, that have been seeking to avoid having their secrets spilled.

One of the few regulars not representing any outside entity is Deborah Burns, a recent law school grad and self-professed Silicon Valley bystander. Arriving early each day to get a seat, Burns said that the trial is giving her a chance to view theory turned into reality.

“Where else would you better see what you’ve studied?” she said.

The press section is composed largely of a group of regulars who have been there throughout the trial, including reporters from Forbes, Bloomberg, Reuters, The Wall Street Journal, the San Jose Mercury News, CNET, several legal publications, and assorted others, along with — of course, AllThingsD.

Another seat is reserved for the courtroom sketch artist, whose images have been carried by Reuters. Her work is especially valuable in federal court, where cameras are generally not allowed. Both photography and audio recording are verboten in the San Jose courthouse.

Like all good Broadway shows, the current production of Apple versus. Samsung must come to an end. Final arguments over jury instructions are scheduled for Monday, with closing arguments slated for Tuesday. But if you missed this trial, there are dozens of similar cases winding their way through court dockets across the globe. Plus, regardless of which way the jury goes, there’s a good chance that some of the same players will reprise their roles in front of an appeals court.

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I think the NSA has a job to do and we need the NSA. But as (physicist) Robert Oppenheimer said, “When you see something that is technically sweet, you go ahead and do it and argue about what to do about it only after you’ve had your technical success. That is the way it was with the atomic bomb.”

— Phil Zimmerman, PGP inventor and Silent Circle co-founder, in an interview with Om Malik