Harold McElhinny, Morrison & Foerster partner. (Jason Doiy / The Recorder)
SAN FRANCISCO — By now, it’s a familiar story. But it’s one Apple lawyer Harold McElhinny likes to relive when he has a jury’s attention.
As in the companies’ last trial, the Morrison & Foerster partner began his opening statement Tuesday by asking jurors to remember where they were on Jan. 9, 2007, the day Apple debuted the iPhone­—the day he says “changed the nature of the telephone.”
Samsung lawyer John Quinn, for one, had heard enough.
The Quinn Emanuel Urquhart & Sullivan partner who has long been a force in the case, but never before directly addressed jurors, minced no words. He slammed Apple’s $2 billion damages request as a “gross exaggeration and an insult to your intelligence.”
Apple Inc. and Samsung Electronics Co. are once again facing off in U.S. District Judge Lucy Koh’s San Jose courtroom over more recent versions of their smartphones and tablets. In 2012, a jury awarded Apple more than $1 billion, and the company hopes to walk away with twice that amount this time.
Samsung, on the other hand, is seeking only about $7 million in its patent infringement case against Apple. Quinn played up that gulf in his opening, making the point that patents do not drive consumer demand for smartphones with thousands of features.
It was a gambit Apple’s legal team seemed to anticipate.
“That is what the follower wants you to believe—patents are not worth much,” said Apple lawyer William Lee of Wilmer Cutler Pickering Hale and Dorr, adding that true innovators “know what an invention is and they know what the value of a patent is.”
Apple is asserting five patents against Samsung that cover features such as the slide-to-unlock gesture and autocorrect. Sharing the stage with Lee, McElhinny referenced damaging internal Samsung documents that figured prominently in the first trial. But he also alluded to new evidence, such as an internal document in which Samsung executives admired Apple’s “slide-to-unlock” feature as a fun and engaging touch.
“This is not competitive intelligence,” McElhinny said. “This is cut-and-paste copying of a patented invention.”
Most of Apple’s infringement claims target features that are built into Google’s Android operating system, which is used on Samsung phones. But McElhinny insisted that the case is strictly between Apple and Samsung.
“You’re gonna hear Samsung point the finger at Google,” he told jurors. “Don’t be misled about that. … It is Samsung, not Google, that has made the decision to copy these features.”
But Quinn begged to differ, pointing to internal documents in which Apple executives referred to a “holy war with Google.” He said Samsung has been targeted as the most successful maker of Android phones. He warned jurors that Apple seeks not only a handsome damages award but an injunction to ban sales of Samsung products.
“[Apple] is trying to gain from you in this courtroom what it has lost in the marketplace,” Quinn said.
He tried to raise more skepticism about Apple’s $2 billion damages request by noting that technology detailed in four of the five patents is not used in the iPhone.
And he stood by Samsung’s own more modest demand. “The suggestion seemed to be that if you’re not asking for billions, you’re not taking patents seriously.”
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