Dogfight: How Apple and Google Went to War and Started a Revolution (22 page)

Debate got so heated at the beginning of the trial that Judge Lucy Koh threatened to sanction John Quinn, whose firm, Quinn Emanuel Urquhart & Sullivan, represented Samsung. Quinn wanted to show the jury evidence that Apple had just as “slavishly copied” Sony in designing the iPhone as Samsung had “slavishly copied” the iPhone. The point Quinn wanted to make, as laid out in Samsung’s pretrial brief, was that “Samsung has used the very same public domain design concepts that Apple borrowed from other competitors, including Sony, to develop the iPhone.” Judge Koh had excluded the evidence because it had been introduced too late in the discovery process. Quinn refused to back down.

QUINN:
May I address the issue of Slides Eleven to Nineteen, which I was prepared to argue—

KOH:
No. We have had three reconsiderations on that, okay? You’ve made your record. I’ve ruled. We need to go forward.

QUINN:
Your Honor, I beg the court.

KOH:
Samsung has had ten motions for reconsideration. I’m doing, as quickly as I can, rulings to give your team as much advanced notice for your preparation of witnesses and exhibits.

QUINN:
Your Honor, I’ve been practicing thirty-six years. I’ve never begged the court like I’m begging the court now to hear argument on this issue. This relates to a central issue that has been in the case from the very beginning. They [Apple] say in their papers they filed last night that we didn’t disclose it in the contention interrogatories. Your Honor, there is no interrogatory that required us to disclose that, and we did. All of that was served—all those images in those slides were served in February—

KOH:
I’ve given you—

QUINN:
—in the preliminary injunction—

KOH:
—an additional opportunity to brief this issue yesterday, okay? I reviewed what you filed yesterday. I heard argument on this yesterday.

QUINN:
All right. Your Honor, what’s the point—

KOH:
I’ve given you three motions for reconsideration.

QUINN:
—of having the trial? What’s the point? They want to create the completely false impression, Your Honor, that we came up with this design after January of 2007 [when the iPhone was unveiled], and, Your Honor, what this suggests, what they’re seeking is to exclude indisputable evidence that we had that design patent in 2006 [before the iPhone was unveiled]. And we came out with that product in February of 2007.

KOH:
Mr. Quinn, please. Please. We’ve done three reconsiderations on this and we need to move forward. We have a jury waiting. You’ve made your record. You’ve made your record for appeal. Okay?

QUINN:
All right. Can I ask the court for some explanation, Your Honor? There is no interrogatory that required it. We did disclose it in the preliminary injunction papers. We gave them [Apple] the documents—

KOH:
Mr. Quinn, please, don’t make me sanction you. Please. Please.

QUINN:
So I won’t get—

KOH:
You’ve had three reconsiderations motions. You’ve had at least two, if not three, if not four opportunities to brief this. Okay? Please, take a seat.

The standoff didn’t end there. Later in the day Samsung decided that even if the jury wasn’t allowed to see the evidence, the rest of the world could. It issued a press release with all the excluded documents. Apple’s McElhinny accused Samsung of trying to “pollute the jury,” adding, “I’m not sure exactly what the right remedy or penalty is. But this is contempt of court. I’ve just never seen anything as intentional as this in my entire career.” Koh demanded Quinn file an affidavit of explanation. She polled each juror individually to make sure they had not seen any stories about the case. Ultimately the jockeying for position got so fierce, supported by dozens of legal motions filed every night in advance of the next day’s arguments, that Koh insisted that all motions be argued in front of the jury and count against each side’s argument time.

Apple even allowed three of its top executives to testify. Christopher Stringer, one of Apple’s top industrial designers, Phil Schiller, who was in charge of Apple’s worldwide marketing, and Scott Forstall, who was in charge of software in iPhones and iPads, all spent a day on the witness stand. Stringer, looking every bit the artist with shoulder-length hair and wearing a white linen suit, talked about the whimsical process he and the fifteen-member design team used to create beautiful products: “There is a table in the kitchen. It’s where we’re comfortable. It’s where we are most familial. We throw ideas around and we—it’s a brutally honest circle of debate. We’re just very comfortable there. That’s where the ideas happen.”

Phil Schiller talked about the organization, coordination, and discipline required to launch a product such as the iPhone or the iPad. He said the iPad cost more to market in the United States during its first year than the iPhone. In 2008, Apple spent $97.5 million on iPhone ads in the United States, compared with the $149.5 million it spent on the iPad in 2010.

Scott Forstall talked about what it had taken to recruit his team and the incredible stress he had put them under to deliver products on time. He also explained how some of Apple’s signature software flourishes were conceived, such as the “slide to unlock” feature when iPhone and iPad are turned on, the tap-to-zoom feature, which he said he invented himself, and the rubber-band bounce that occurs whenever the end of a list or a page has been reached. He wore a blue suit to court, an outfit few had ever seen him in. When asked about it by an aide as he walked out of court for lunch, he said, “I’ve worn it twice. Once to the White House. Now here.”

All of them made the same point: they were shocked, offended, and angry when they first saw Samsung’s Android phones and tablets. Schiller said he was worried that consumers would confuse their devices and said he eventually came to believe that was indeed happening. Stringer was particularly emotional. “We’d been ripped off. It was plain to see,” Stringer said when asked how he reacted to seeing Samsung’s Android phones for the first time. “It’s a huge leap of imagination to come up with something entirely new [such as the iPhone]. It’s a process by which you have to dismiss everything you know … because if you pay attention to the competition, you end up following. And that’s not what we do. We wanted to create originality. It’s a very difficult process. It takes a huge amount of time and resources and conviction to do so. So we were offended [by what Samsung had done].”

Quinn and Samsung’s other lawyers tried to establish that Apple’s case was frivolous. They said that the inventions Apple claimed Samsung copied either had invalid patents or weren’t patentable at all because they were obvious. You can’t patent shapes and designs that are required for something to function. You can’t, for example, patent that a phone is a rectangle, with a speaker at the top and a microphone at the bottom. They pointed out that while Samsung’s phones were similar to the iPhone in that they all had touchscreens and were about the same shape, the Samsung phones also demonstrated that Apple had not invented the touchscreen.

The lawyers showed the obvious differences in the devices that were easy for anyone to see—such as where the buttons were placed, and what users saw when they turned the phone on. During his cross-examination of the three Apple witnesses, Samsung attorney Charles Verhoeven took pains to get each of them—particularly Stringer—to acknowledge that Samsung phones have a different home screen that shows up when the phone is turned on, and that Samsung phones had four virtual buttons to navigate the software on the phone whereas the iPhone has one physical button.

VERHOEVEN:
Do you remember, yes or no, when you looked at the Samsung phones to form the opinion and the testimony that you gave before the jury, whether they had four soft buttons at the bottom?

STRINGER:
I have seen many Samsung phones. I do not remember the exact details of software buttons.

VERHOEVEN:
So you don’t remember whether they had buttons on the bottom?

STRINGER:
Like I said, I’ve seen many Samsung phones. I do not know that they’re all the same in terms of their button arrangements at the bottom.

VERHOEVEN:
Have you ever seen any Samsung phones that have four soft buttons at the bottom?

STRINGER:
I would like you to show me the phone. This could be a trick question. I don’t know.

VERHOEVEN:
I’m just asking you, have you ever seen a Samsung phone that had four soft buttons at the bottom?

STRINGER:
If you showed me the phone, I could determine that there are four soft buttons.

VERHOEVEN:
That’s not my question, sir. My question is, have you seen a Samsung phone that had four soft buttons at the bottom?

STRINGER:
I cannot recall if it’s three or four. I cannot recall.

VERHOEVEN:
Have you seen any phone, any smartphone, that had four soft buttons at the bottom?

STRINGER:
Quite possibly.

VERHOEVEN:
Did you think they were beautiful?

STRINGER:
Clearly they did not stick in my mind.

VERHOEVEN:
Now, you testified about buttons and how sometimes you might do fifty different models of a button (as part of the design process). Do you remember that?

STRINGER:
That’s correct.

VERHOEVEN:
How many models did you do of the home button?

STRINGER:
I could not give you an exact number, but I’m sure there were many.

VERHOEVEN:
Over ten?

STRINGER:
Very likely.

VERHOEVEN:
Over a hundred?

STRINGER:
Maybe not.

VERHOEVEN:
What’s your best estimate?

STRINGER:
I will not estimate because I do not know.

VERHOEVEN:
Did you work on the different models of the home button?

STRINGER:
Yes.

VERHOEVEN:
And why were there so many models of the home button done?

STRINGER:
To get it exactly right.

VERHOEVEN:
Because small details matter, right?

STRINGER:
Absolutely.

The case was riveting not just because the plaintiff was Apple suing to protect the iPhone and the iPad but also because taking anything to trial was an incredibly un-Apple thing to do. Corporations, in general, avoid trials. They are public venues where all testimony is given on the record, under oath, and subject to cross-examination. Only about 3 percent of all patent-infringement cases go to trial. And Apple is one of the most secretive, controlling companies in the world. Juries are unpredictable in any legal situation, and they tend to be particularly unpredictable about business and technology issues. The press coverage generated by courtroom disputes is typically not good for either company’s employee morale or focus. And taking a corporate dispute to trial costs tens of millions of dollars in legal fees.

Samsung looked as if it had a powerful defense, but the jury didn’t agree. Three weeks after the trial started, the jury of seven men and two women got to deliberate. Koh’s jury instructions took two hours, and the jury form was 109 pages long. But twenty-two hours later—a remarkably short time for such a complex case—it held Samsung liable for virtually all the accusations Apple had leveled. It rejected Samsung’s countersuit against Apple. And it ordered Samsung to pay Apple more than $1 billion.

*   *   *

We are all taught in school that patents are one of the foundations of America’s innovation economy—that they are hard to get, ironclad, and straightforward to adjudicate. The stories about how a couple of smart kids with brains, drive, and guts build a company that changes the world for the better are endlessly compelling. The stories of people who steal from them are as painful to hear as those of bullies on the playground. Apple was once one of these young, start-up companies, and throughout Jobs’s attack on Android he shrewdly wrapped himself and Apple in a cloak of moral outrage. After his death, that outrage became the foundation of everything Apple did and said leading up to, during, and after the Samsung trial. CEO Tim Cook laid it out in the following memo to employees in the hours after the Samsung verdict:

Today was an important day for Apple and for innovators everywhere. We chose legal action very reluctantly and only after repeatedly asking Samsung to stop copying our work. For us this lawsuit has always been about something much more important than patents or money. It’s about values. We value originality and innovation and pour our lives into making the best products on earth. And we do this to delight our customers, not for competitors to flagrantly copy. We owe a debt of gratitude to the jury who invested their time in listening to our story. We were thrilled to finally have the opportunity to tell it. The mountain of evidence presented during the trial showed that Samsung’s copying went far deeper than we knew. The jury has now spoken. We applaud them for finding Samsung’s behavior willful and for sending a loud and clear message that stealing isn’t right. I am very proud of the work that each of you do. Today, values have won and I hope the whole world listens.

It was brilliant rhetoric. Jobs had been dead nine months, but it felt as if he had written the note himself. The public bought it. The hours and days following the verdict became a public relations bonanza for Apple. Media worldwide wrote breathlessly about the case, wondering how Samsung and Google could possibly recover from it. Samsung’s stock fell more than 6 percent in the weeks after the verdict. Apple’s already buoyant stock price rose 6 percent. By the middle of September—days before it unveiled the iPhone 5—Apple’s stock price had hit an all-time high that made the company worth $656 billion—the biggest market capitalization ever recorded by a U.S. corporation.