Apple, Samsung go for KO in trial's final round

By Martha C. White

?Apple's secret sauce has always been its ability to make complex technology simple and user-friendly. This operational ethos also appears to be the company's guiding legal strategy in its landmark legal showdown with Samsung as the dueling device manufacturers trade nasty accusations of patent infringement.
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This latest and final skirmish between the respective companies' lawyers pertains to the instructions the judge will issue and a verdict ?worksheet? the nine-member jury will receive before beginning their deliberations. The two sides are scheduled to give their closing arguments Tuesday, barring a last-minute settlement between the two companies.

As with nearly every aspect of this courtroom drama, the stakes couldn't be higher. ?Those are the last thing in the jury?s mind before they decide anything,? said Joseph A. Mandour, managing partner at law firm Mandour & Associates. ?It?s an attorney?s only ability to be in the jury room."

"I think Apple wants to describe products in ways that fit the profile of the iPhone and the iPad, and I think Samsung is going to talk more about the differences in what they do," said?Stephen Baker, a consumer technology analyst at NPD Group.

These documents are packed with minutiae such as the definition of ?prior art? and other patent legalese, according to the Wall Street Journal.?

?As the plaintiff, Apple has a strong incentive to keep this communication short and streamlined whenever possible, Mark Lemley, professor at Stanford Law School, said via email. "My sense is that Samsung wants more detailed instructions and more questions on the verdict form. That's often true of defendants, because it means there are more potential issues to appeal and more chance the jury doesn't simply rule for one side or the other," he said.

"In these patent cases, simpler is generally better and I think that does overlap with Apple?s preference," said Michael Carrier, law professor at Rutgers Law School ? Camden. "Apple has this story... and is painting this picture of Samsung being the copier or even the villain," he said. "That could be a simpler story for a jury to get behind."

?"Apple just wants to say, 'Look, do they look similar?'" said Kevin Rivette, managing partner at 3LP.

But Rivette added that this quick litmus test bypasses what is arguably the biggest weakness in Apple's argument: whether or not a patent on one or more stylistic elements is legally defensible or should have been granted in the first place.

"The problem with simplification?is these aren?t simple issues," said?Will Stofega, mobile devices analyst at research firm IDC. "If you take a simplified approach you could come out with the wrong interpretation... too much simplification starts to leave out context." Stofega said he doesn't believe Lucy Koh, the judge presiding over the trial, will accept Apple's version in its entirety for this reason.?

Whatever the outcome, legal experts say that the ruling is virtually guaranteed to be appealed by the loser. But If Apple succeeds in getting an injunction, even a temporary one, that could prove devastating for Samsung, Rivette said. A?ruling likely would fall during the crucial fourth quarter, and shortly after Apple is widely expected to release the next version of the iPhone.

"Apple would love an injunction, whether it?s temporary or not," he said.

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