By : Amy Miller
Source : http://www.law.com
Category : Patent Infringement
Quinn Emanuel Urquhart & Sullivan's reputation as one of the toughest firms to beat in a courtroom is on the line.
Starting Monday, a team of high-profile litigators led by Charles Verhoeven will defend Samsung Electronics Co. in front of a jury against Apple Inc.'s claims that it "slavishly" copied features of the iPad and iPhone in some of its Galaxy line of products, which includes smartphones and touchscreen tablets.
Apple's patent war against rival handset makers using Google Inc.'s Android operating system hasn't fared well in other courts. Most notably, Judge Richard Posner in Illinois, a vocal critic of the U.S. patent system, threw out the Apple-Motorola Mobility suit, saying neither company could prove damages. And Apple's assertion that it owns the rights to design features, such as a rectangular shape and a flat, black screen, have been roundly criticized.
But in Apple's backyard, Samsung's lawyers have suffered a series of pretrial setbacks that could hurt the company when it goes before a jury in San Jose on Monday, observers say. That's not ideal when fending off claims for potentially record-setting damages of $2.5 billion and battling Apple's heavy-hitting team from Morrison & Foerster, led by long-time Bay Area IP litigator Harold McElhinny.
"It would be a fair statement to say they're in the lion's den, and they have some potentially bad facts," said Guy Chambers, an IP litigator at Duane Morris in San Francisco, who is not involved in the case.
All eyes will be on Verhoeven when he arrives in U.S. District Judge Lucy Koh's court for what many expect to be an epic legal showdown between some of the Bay Area's top litigators.
TOUGH SANCTIONS
Much of Apple's patent infringement case against Samsung rests on what it claims are the unique design features of its iPhone and iPad. "Samsung cannot change the central fact that its products are strikingly similar to Apple's patented designs," Apple attorney Michael Jacobs, a partner at MoFo in San Francisco, wrote in a July 23 trial brief. "Nor can it change the novelty and extraordinary success of Apple's designs.
Apple even goes so far as to claim that no other mobile device should be allowed to have similar features, such as rectangles, rounded corners or flat, black screens.
Apple "demands the entirety of Samsung's revenues on the accused phones and tablets for the alleged infringement of a design patent that shows little more than a black rectangle with rounded corners," Quinn attorney Victoria Maroulis wrote in Samsung's trial brief.
Samsung will argue that Apple's designs aren't in fact unique but were modeled after another rival, Sony.
Apple's claims haven't been persuasive in some courts. In July, the High Court of England and Wales ruled that Samsung's Galaxy Tab did not infringe upon Apple's tablet designs. The judge said the Galaxy Tab was "not as cool" as the iPad, and therefore not likely to be confused with Apple's tablets.
In the Northern District, though, Apple has had more success. Koh took the unusual step in June of granting a preliminary injunction blocking sales of Samsung's Galaxy Tab 10.1 in the U.S. Koh sided with Apple, saying the company was likely to succeed on that claim after a remand from the Federal Circuit.
The injunction won't be presented as evidence to the jury, but at least one damaging discovery sanction imposed against Samsung could be fodder for jurors. This past week, U.S. Magistrate Judge Paul Grewal, who has presided over the parties' many discovery spats, ruled that Samsung allowed emails relevant to Apple's infringement claims to be deleted. The jury will be told that the missing evidence was favorable to Apple and that Samsung didn't preserve it. Grewal said Samsung didn't go far enough to curb deletions of potentially relevant email between August 2010, when Apple first presented its grievances Samsung, and April 2011, when it filed the lawsuit.
"In effect, Samsung kept the shredder on long after it should have known about this litigation, and simply trusted its custodial employees to save relevant evidence from it," Grewal wrote.
Samsung can call on witnesses, who can try to explain it away, said Neil Smith, a patent litigator at Ropers Majeski Kohn & Bentley in San Jose. "But in a situation like that, there's not a lot trial lawyers can do," Smith said. "They destroyed evidence and the jury can draw an adverse conclusion that the evidence was against them. The coverup and destruction may be much worse than what the documents actually said."
Florian Mueller, a patent expert and IP consultant who is not involved in the case, agreed. The sanction could make it a lot harder for Samsung to fend off claims of willful infringement.
"And it certainly won't enhance the jury's confidence in what Samsung's trial lawyers say," Mueller said in an email.
Samsung is fighting the magistrate's sanction and will take it to the appeals court if necessary, a spokeswoman said in an email.
MoFo attorneys referred questions to Apple's PR department, and Apple spokeswoman Kristin Huguet did not respond to requests for comment.
Apple's case isn't just about design patents. Grewal issued another sanction against Samsung barring it from presenting evidence that it had designed around software patents that Apple says its infringing. That order came after he found Samsung's lawyers failed to produce source code for the Galaxy products after a court-ordered deadline.
Partly because of these sanctions, Apple's lawyers urged Koh to find the case "exceptional" and award treble damages after trial. That means if Apple emerges victorious, Samsung could be on the hook for up to $7.5 billion.
"The evidence at trial of Samsung's willful infringement, together with other evidence of Samsung's willfulness and its litigation misconduct, will support a post-verdict finding that this is an exceptional case warranting treble damages," Jacobs wrote in a 66-page trial brief.
Samsung also got a bad ruling on its counterclaims. At a claim construction hearing, Koh struck down one of its infringement claims on a utility patent that covers generating codes. She kept intact the heart of Apple's case. Apple is alleging trade dress infringement, trade dress dilution, utility patent infringement, design patent infringement and violation of antitrust law.
HOMEBOY SHOWDOWN
When the trial, which is sure to be one of Silicon Valley's most closely watched, gets under way, there's little doubt that Verhoeven, 49, will be in the spotlight. The head of the firm's Northern California offices is expected to make Samsung's opening statement. The Iowa native has built a reputation for making complicated patent cases easy for jurors to understand.
He's successfully defended Google in several patent trials in the Eastern District of Texas. He's also been busy defending other handset makers, including HTC Corp. and Motorola Inc., that use Google's Android operating system against patent infringement claims by Apple.
And he's brought in Los Angeles-based William Price, co-chair of the firm's trial practice, to handle the critically important jury selection process. Recently, Price helped pull off a pair of high-profile wins against patent aggregator Rambus.
Apple's team is led by McElhinny, 65, a West Coast native who's been practicing patent law in the Bay Area for decades. He made a name for himself in the 1990s after representing Fujitsu against IBM in a landmark software copyright case. He chaired MoFo's litigation department from 1996 to 1999 and co-chaired the intellectual property practice group from 2006 through 2008.
His team is made up of several experienced trial lawyers, including Jacobs, who was Oracle Corp.'s lead counsel in its recent — unsuccessful — battle against Google. Partner Alison Tucher battled Samsung in discovery hearings in the run up to trial.
So Apple already had what looked like an IP dream team when, less than two weeks before trial, it added Rachel Krevans to the lineup. Handling Apple's defense against Samsung's counterclaims are Wilmer Cutler Pickering Hale and Dorr partners William Lee in Boston and Mark Selwyn in Palo Alto. Lee, a veteran of the smartphone wars, has the dubious distinction of seeing one of his clients, Abbott Laboratories, hit with one of the largest patent verdicts in history: $1.67 billion. But he was the ultimate victor, getting that verdict overturned on appeal.
With so many major players involved, IP lawyers say this trial is one to watch, and several said they plan to attend at least some the proceedings just to see the lawyers in action.
"Usually watching patent trials is not a spectator sport, but as an experienced patent and trade dress litigator, and iPhone/iPad zealot, this is the one to watch," Smith said. "We have our own local legal Olympics."
Source : http://www.law.com/jsp/ca/PubArticleCA.jsp?id=1202564800487
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