Law & Disorder / Civilization & Discontents

Apple blasts Samsung’s post-trial “attack on the jury” as weak, unfounded

Jury foreman wasn't dishonest; Samsung's attack is too little, too late.

Standing out among a flurry of new post-trial paperwork filed Friday in the Apple v. Samsung docket is Apple's succinct response to Samsung's blame-the-jury-foreman strategy. Samsung's "attack on the jury" is "clearly unfounded," Apple lawyers write, and the group believes US District Judge Lucy Koh should reject the Korean company's request for a new trial.

Samsung said the jury foreman, Velvin Hogan, wasn't truthful about his history of litigation with Seagate, his former employer. Since Samsung recently became a major Seagate shareholder (buying 9.6 percent of the company), that was an important fact to disclose. Samsung could have used a strike to kick him off the jury.

"All the information Samsung got about Hogan after trial, however, it could have dug up during trial. Had Samsung [asked Hogan about Seagate], or ordered the bankruptcy file—the exact step it took only after it received the unfavorable jury verdict—it could have discovered the Seagate complaint," wrote Apple lawyers in their new brief on the subject. "By doing nothing, Samsung waived its objections."

In any case, Hogan was hardly dishonest. He described a 2008 lawsuit and was never asked in court about others, or about his bankruptcy, "and hence never failed to answer a question truthfully."

Apple tries to portray Samsung's argument for a new trial as a major reach. "[Samsung's] theory is that, due to a decades-old dispute with Seagate, Mr. Hogan lied to serve on the jury in a case where Seagate is not a party in order to exact revenge by harming a Seagate shareholder," Apple lawyers note. "This falls far short of establishing challenge for cause."

As for Hogan's comments to the media in post-trial interviews, Apple says his comments about intellectual property were "balanced, not biased." He instead emphasized that jurors wanted to protect intellectual property rights "no matter who they belonged to."

(I usually steer clear of making predictions in litigation. If the outcome of this case were predictable, it probably wouldn't have gone to a trial. But in this case, I find it hard to believe Samsung's "blame the juror" arguments are going to make much headway with Judge Koh. She was willing to let a current Google employee on the jury, so it's hard to believe she would be inclined to find fault with the jury foreman because of an ancient conflict with Seagate. It's a company that is far more tangential to this case than Google.)

Samsung pleads: Keep our phones on the market, no more damages

Samsung filed its own motions on Friday, trying to shoot down Apple's request for an additional $535 million in damages on top of the $1.05 billion it was awarded by the jury verdict. If that verdict stands up on appeal, it will be the largest patent verdict in history. Even more importantly, Samsung wants to avoid facing a court-ordered injunction that could kick some of its phones off the market.

The company reemphasized a point it made at trial: Apple's design patents aren't the key factors driving consumer demand for its phones. Samsung also argues that Apple can't be hurt too badly by infringement of these patents, since it doesn't even use the designs and trade dress at issue in the trial. Those are more connected to the iPhone 3 and 3GS—old phones Apple doesn't make anymore. (Apple disagrees with that point, saying the iPhone 4 and iPhone 4S do use the trade dress and patents at issue.)

If Apple is able to block its phones from going to market, it would go beyond hurting its competitor—the public interest will be harmed, argues Samsung.

"The public has an overwhelming interest in preventing one company from having a monopoly over
basic elements of smartphone design such as a rectangular shape with rounded corners," Samsung lawyers argue. "This litigation is part of Apple’s campaign against makers of Android devices, which provide free, open source mobile software that any developer can use to create applications for mobile devices and that any handset manufacturer can install on a device. This Court should not deprive consumers of choice by granting the broad, vague injunction that Apple seeks."

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