Apple v Samsung: Five experts, five questions

We asked experts on the legal system, patent litigation and the smartphone market what they made of the case

As a nine-person jury begins deliberations in the closely watched patent trial between Apple and Samsung, the companies and their lawyers are left waiting and wondering what the jury made of the three weeks of arguments.

We polled five people with specialist knowledge of the legal system, patent litigation and trials, and the U.S. smartphone market to get their opinions on the trial so far.

They were: Mark McKenna, a Notre Dame University law professor who specializes in intellectual property, trademark and copyright law; Christopher Carani, a shareholder at McAndrews, Held & Malloy who specializes in design patents and is the current chairman of the American Bar Association's Design Rights Committee; Roy Futterman, director at DOAR Litigation Consulting and a clinical psychologist who provides jury analysis and recommendations for civil and criminal cases; Bill Panagos, a shareholder at Butzel Long who specializes in intellectual property, patent prosecution and litigation, trademark and copyright law; and Charles Golvin, principal analyst at Forrester Research.

Here are some of their responses:

Q1. What has surprised you about the trial?

Roy Futterman: I am surprised that the attorneys and the judge have allowed the jury's job to be staggeringly complicated by providing them with an elaborate verdict form and remarkably long jury instructions. In our experience working on complex patent litigation, we always advise attorneys to do everything possible to clarify the complex legal and technological issues for the jurors as a means to a favorable verdict. A simpler case with a clear verdict form would be most favorable to Apple as the plaintiff charging infringement. A complicated verdict form may lead an overwhelmed jury to check a box that leads to an invalid patent.

Charles Golvin: In truth, what surprised me most is that the case actually came to trial. There have been many patent disputes but the vast majority have been resolved in negotiation. It speaks to the strength of Apple's conviction that the market it essentially created with the iPhone has been unfairly dominated by competitors via -- in Apple's mind -- theft.

Christopher Carani: I am continually surprised at how emotionally attached people are to their cellphones and tablets. At times the allegiance seems stronger than one's political or religious affiliation.

Q2. If you could give advice to this jury -- that got 109 pages of instructions and hundreds of other pages of documents -- what would it be?

Mark McKenna: They will have to first focus on the validity of the rights Apple and Samsung claim. A lot of the instructions have to do with damages, and damages are irrelevant if the rights aren't valid. Then I think they have to guard against the risk of just looking at the Apple and Samsung devices in comparison to each other, without looking more broadly at what else came before, and what other devices out there look like. And they have to be careful not to buy into the narratives either side is telling and focus on the instructions. They're also going, in some cases, to have to go device-by-device. That will be a slog, but they don't have a choice.

Christopher Carani: Take one question at a time and follow the jury instructions as best you can. Don't be the student who fills out a multiple-choice exam by checking "Answer D" for every question. While perhaps tempting and expedient, justice will not be served. If you are going to faithfully fulfill your duty as a juror, understand that there is no quick way to complete the verdict form. Remember, at issue, there are seven Apple patents (four design patents and three utility patents) against 28 Samsung products (26 smartphones and two tablets) along with trade dress and antitrust claims. In return, Samsung has asserted five patents against five Apple products (three iPhones, the iPad and an iPod). If there are any findings of liability, the jurors then have to shift gears and tabulate damages on a per-patent, per-accused product basis.

Roy Futterman: I would tell this jury to start broad before deciding on the details. In our experience watching scores of mock juries deliberate, we typically see jurors work out a lot of the broader underlying issues before they move on to working out the detailed verdict questions. I would advise the jury to have a long discussion about the case as a whole before moving to the individual verdict questions. Mostly though, I would advise the jurors to settle in and take their time. They have a strikingly complex verdict form with 33 questions on which to come to unanimous agreement.

Q3. Are they companies playing with fire by letting such a complex issue get into the hands of a jury? Was it smart to let it go this far?

Bill Panagos: The jury is the most perfect of the many imperfect ways so far devised to ascertain the facts in a matter and render a decision that generally is right, fair and equitable. That being said, once the jury is involved, the decision-making ability of the business people in either party begins to diminish as they progressively lose control over the outcome of the case. Oftentimes, cases are settled during jury deliberations. In a very important matter such as this, complex commercial and business issues intermingle with the patent issue to complicate the matters to be decided by the jury. In high-stakes litigation such as this, the winner will dominate a growing multibillion-dollar market. The loser may find itself with little or nothing to show for its efforts in the case. While there will undoubtedly be appeals from any jury verdict, each party will honestly assess the relative strengths and weaknesses in their respective positions, and may reach a commercial resolution.

Roy Futterman: In our experience with complex patent litigation, we see that when a case like this gets all the way to trial, it is very close and could go either way. If it has come this far, it means that the parties have decided that it could not be settled.

Mark McKenna: I think most people thought it would settle, but Apple has been pretty fiery on record about wanting to destroy its competitors, so I'm not totally surprised that they couldn't reach agreement. I think Samsung's claims would have settled if they were standing alone, because that's just about the amount of money Apple needs to pay. But if they can't settle Apple's claims, then it doesn't make sense for Samsung not to keep its own claims alive. Is it risky to go to a jury? Sure, but sometimes you don't have a choice if you're fundamentally disagreeing.

Q4. This is one of a growing number of patent infringement suits between major tech companies. Does this parade of litigation say more about the U.S. patent process or the high level of competition in the gadget market?

Charles Golvin: I believe it says more about the market itself. We are undergoing a radical shift in computing and these devices frame the future landscape of competition -- not just for devices but for applications, content, services and commerce. There are monumental stakes involved, well beyond the billions in revenue from the sale of the gadgets themselves. 

Mark McKenna: The smartphone wars are an indictment of the patent system generally. There are too many patents, and those patents often have fuzzy and overlapping boundaries. The big companies eventually will find a way to settle most of these claims, likely by engaging in lots of cross-licensing. But the situation is much harder for newer and/or smaller firms who want to get into this space. To do so, you need to have or buy a ton of patents (or at least some really important ones), and you need to be prepared to spend hundreds of millions of dollars on litigation. That's not good for the industry or for consumers. It's really only good for lawyers.

Bill Panagos: Both. The U.S. patent process is set up to reward innovation and risk-taking to encourage "the progress of the useful arts and sciences." As all economies converge into the global economy, the patent process will increasingly become the defining factor in domination of world markets, as well as in leadership in technological endeavors.

Q5. On Tuesday, Apple portrayed this decision as something that could affect innovation in the U.S. while Samsung said it was a use of the law to stifle competition. Is any of that true?

Mark McKenna: You always have to take closing arguments with a grain of salt -- it's performance theater, and the lawyers know that making their client look good, and the other party look bad, is the name of the game. My own view is that it's pretty unlikely that a verdict against Apple negatively impacts innovation. What they're claiming isn't especially innovative, and most of Apple's value is its brand, which isn't affected by this. How much it affects competition if Apple wins is a function of how easily other companies can design around Apple's design without losing function or appeal to consumers. Given how basic the design is to which patent claims rights, I'm inclined to think a judgment in its favor is a much bigger deal and would have a bigger effect on competition.

Martyn Williams covers mobile telecoms, Silicon Valley and general technology breaking news for The IDG News Service. Follow Martyn on Twitter at @martyn_williams. Martyn's e-mail address is martyn_williams@idg.com

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Martyn Williams

IDG News Service

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