Harold McElhinny, Morrison & Foerster partner.
Harold McElhinny, Morrison & Foerster partner. (Jason Doiy)

The San Jose federal judge presiding over Apple Inc.’s smartphone patent battle with Samsung Electronics Co. rejected posttrial motions from both sides on Friday, preserving Apple’s $290 million damages award in the companies’ damages retrial last year.

But the judge also delivered a stern rebuke to Apple’s lawyers for seemingly appealing to nationalism and xenophobia in making their case against a Korean rival, warning that efforts to play to juror prejudices won’t be tolerated.

“The court finds the implications of Apple counsel’s statements in closing argument troubling,” U.S. District Judge Lucy Koh wrote in Friday’s 29-page order. “Counsel’s argument clearly suggested an us-versus-them, American-versus-non-American theme to the jury, which could have evoked national origin prejudice.”

The arguments that got Koh (and Samsung) so worked up were delivered during closing arguments last November by Apple counsel Harold McElhinny of Morrison & Foerster, who lamented the demise of American industry at the hands of foreign companies that steal intellectual property.

“When I was young, I used to watch television on televisions that were manufactured in the United States,” McElhinny told the jury, noting that they were famous brands like Apple and Google are today. “But they didn’t protect their intellectual property. They couldn’t protect their ideas. And you all know the result. There are no American television manufacturers today.”

McElhinny’s comments prompted Samsung’s lawyers at Quinn Emanuel Urquhart & Sullivan to move for a mistrial immediately after the jury began deliberating. Koh denied the request, but she counseled the jurors that they shouldn’t be influenced by personal prejudices. And while in Friday’s order she rejected Samsung’s contention that a new trial is warranted because Apple appealed to racial, ethnic and national origin prejudice throughout its case, she expressed her “disapproval and disappointment” in McElhinny’s statements.

“Fairness is undermined when counsel either explicitly or implicitly invokes the prejudice of jurors rather than relying on the applicable law and proven facts,” she wrote, adding that the trial transcript fails to capture the broader context of the courtroom, where the rows behind the attorneys were filled with representatives from the rival companies with obvious differences in racial and ethnic backgrounds.

Neither McElhinny nor Samsung attorney Charles Verhoeven of Quinn Emanuel could immediately be reached for comment.

Citing a law review article written by now-Federal Circuit Judge Kimberly Moore— “Xenophobia in Amercan Courts“—Koh said McElhinny’s arguments not only put the fairness of the trial at risk, but threatened to perpetuate a perception among foreign companies that there is a xenophobic bias in the U.S. patent litigation process. She also made clear that she believed that Apple’s statements were premeditated and intentional.

“Counsel in this case have been exceptionally well prepared, and the court has no doubt that counsel carefully chose each theme before presenting it to the jury in closing arguments,” Koh wrote. “As the court expressed after counsel’s statement, the court is particularly troubled by the clear implication of the closing argument that Samsung’s foreignness was an issue in this case.”

The judge also admonished the lawyers about their behavior as they prepare for yet another trial, scheduled for next month, in their ongoing patent dispute. “Counsel are encouraged to be mindful of the important role that lawyers play in the actual and perceived fairness of our legal system as they prepare for and litigate the next round of this patent dispute,” she wrote.

In a somewhat different context, Samsung’s lawyers at Quinn Emanuel also raised the issue of protectionism and the U.S. system favoring domestic companies last year when they asked the White House to veto an International Trade Commission ban on certain Samsung products. The administration, which refused to veto the ban, had earlier vetoed an ITC ban on certain Apple products.