Harold McElhinny, Morrison & Foerster partner. (Jason Doiy / The Recorder)
SAN JOSE — Google agreed to run Samsung’s legal defense and shoulder the costs of patent litigation with Apple over some features of the Android operating system, according to emails shown in court Tuesday.
In a deposition played for the jury, Google patent counsel James Maccoun verified emails in which Google executives offered to defend and indemnify Samsung against some of the claims in its latest patent trial with Apple over smartphone and tablet technology. Apple lawyers played Maccoun’s deposition, which was taken in August 2013, as they kicked off their rebuttal in the monthlong patent case before U.S. District Judge Lucy Koh in San Jose.
“Google is asking Samsung to tender the defense so that Google can defend Samsung,” Maccoun said, summing up the emails.
He added that the indemnity agreement “can mean other things depending on the outcome of the litigation.” According to the emails, Google took the lead in defending infringement claims related to U.S. Patent Nos. 6,847,959, which addresses search software, and 7,761,414, which addresses the “background sync” feature.
A Google spokesman declined to comment. A spokesman for Samsung did not respond to a request for comment.
Google has loomed large in the trial from the start, though Apple and Samsung continue to spar over the Mountain View giant’s true role in the case. Samsung’s lawyers at Quinn Emanuel Urquhart & Sullivan have stressed that their client is a casualty of a larger battle between Apple and Google. Four of the five patents that Apple has asserted target Google’s Android operating system, which Samsung uses on its smartphones.
In his opening statement for Apple, Harold McElhinny of Morrison & Foerster combatted that notion, insisting the case was strictly between his client and Samsung. “You’re gonna hear Samsung point the finger at Google,” McElhinny said. “Don’t be misled about that.”
Cuing up Maccoun’s deposition on Friday, Apple lawyers seemingly broke with that message, emphasizing Google’s deep involvement in the case.
Maccoun’s testimony shed light on Google’s backing of Android manufacturers embroiled in patent litigation and an indemnification agreement that has been the subject of industry speculation.
Google licenses its Android software for free, so manufacturers that install the operating systems on their phones have become the prime targets for related patent infringement claims. Maccoun said the indemnity agreement flowed from the “Mobile Application Distribution Agreement,” which Android manufacturers such as Samsung sign in order to share Google applications.
Samsung lawyers have emphasized that the company makes no changes to the Android software. Bernard Chao, an assistant law professor at the University of Denver who is not involved in the case, said the indemnity agreement comes as no surprise in light of that dynamic.
“If Google is responsible for the software, my expectation would be that they would indemnify and defend,” he said.
Google and Samsung have presented a unified front thus far, with the South Korean company calling several Google employees to the stand as friendly witnesses. But Chao said the task of splitting up a potential damages award could strain the companies’ relationship, particularly if the jury does not provide a neat breakdown of who must pay what.
“If the jury doesn’t do that, we could have another lawsuit between Google and Samsung,” he said.
Apple’s pursuit of more than $2 billion in damages may have also prompted the company’s lawyers to play the Google deposition, Chao said.
“It may be that Apple wanted to introduce another deep pocket,” Chao said. “They may be signaling to the jury, ‘Don’t worry about how much you’re going to award because these two giants can afford it.’”
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