During Apple and Samsung's November retrial on damages, a jury verdict found that Samsung owed Apple an additional US$290 million, bringing the final damages amount from the original summer 2012 trial to $930 million.
In the wake of that verdict, Samsung cried foul, alleging, among other things, that Apple improperly invoked notions of racial prejudice in its closing arguments. In a motion seeking a reduction in damages or a new trial altogether, Samsung's argued in part:
Apple's insidious "American-us versus foreign-them" theme permeated the trial. Apple's counsel referred to SEC employees as the "Korean bosses" of "Samsung America." Throughout trial, Apple gratuitously reinforced SEC's foreign status, rebranding it as "Samsung Korea," "Korean Samsung," the "Korean parent," and "the Korean company," or simply equating SEC with Korea. Apple injected additional reminders of "otherness," repeatedly pointing out when witnesses could not speak or read Korean and that certain Samsung engineers "don't speak English." By closing, Apple lumped all the defendants with "Samsung Korea," arguing that no "Samsung executive has been brave enough to come into this courtroom"...
Meanwhile, Apple's counsel appealed to U.S. nationalism and local parochialism, describing the Bay Area as "the center of one of the most vibrant economies in the world," and threatening: "if we allow [the patent] system of law to decay, investors will not invest, people will not take risks, and our economy will disappear." His meaning was clear: accept Apple's arguments or a foreign company will destroy Silicon Valley business.
This past week, Judge Lucy Koh issued a ruling denying Samsung's motion for a retrial of the retrial. I suppose the retrial madness has to stop somewhere, right?
In any event, while Koh didn't buy into Samsung's allegations of racial prejudice, she did find the tone of Apple's closing argument to be somewhat "troubling." Indeed, the thrust of Samsung's racial and ethnic bias argument centers on Apple's aforementioned closing argument which reads as follows:
We are extremely fortunate to live in what I'll call the Greater Bay Area. Not only is it beautiful, but we live in the center of one of the most vibrant economies in the world. Intel, Yahoo, Oracle, Facebook, eBay, and hundreds and hundreds of other companies, including Google, and including Apple, and these companies attract talented employees at every level. Even, we heard, Samsung has opened a research center here so that they can take advantage of the talent in this area.
The companies provide jobs. They create technology that improves the way people work. And the company -- and this economy supports an education system that is second to none in the world, Berkeley, Stanford, San Jose State, U.S. [sic] Santa Cruz, even Santa Clara where I went to school. These educational institutions interact with this economy, interact with these companies and create a place that the whole world knows as Silicon Valley.
But let's be equally clear about one thing. Our vibrant economy absolutely depends on fair competition. It depends on a patent system that encourages inventors to invent, it encourages investors to invest, and it encourages employers to hire.
If we allow that system of law to decay, investors will not invest, people will not take risks, and our economy will disappear.
When I was young, I used to watch television on televisions that were manufactured in the United States. Magnavox, Motorola, RCA. These were real companies. They were well known and they were famous. They were creators. They were inventors. They were like the Apple and Google today.
But they didn't protect their intellectual property. They couldn't protect their ideas. And you all know the result. There are no American television manufacturers today.
Koh, in her ruling, writes that the implications of Apple's statements are "troubling" and clearly suggest an "us versus them," "American vs. Non-American" mentality. What's more, Koh writes that the raw transcript by itself does not fully convey how the jury likely interpreted the above statements.
This effect is minimized by the cold transcript, which elides counsel's strategic and effective pauses, timed in a way that created silence for listeners to connect the dots and make troubling inferences.
Nonetheless, while Koh found Apple's closing argument to be worthy of a rebuke, she didn't find that Apple's conduct rose to a level that would warrant a mistrial.
In this case, the Court finds that Apple counsel's statements at closing argument, while potentially evoking prejudice, do not meet the standard for two reasons. First, misconduct did not permeate the proceedings. Rather, the problematic comments were confined to a few seconds of the closing argument, which quickly came to an end upon Samsung's objection and this Court's admonishment to Apple's counsel to move on.
As to Samsung's complaint that Apple routinely employed phrases like "Samsung Korea" throughout the entire trial, Koh writes that Samsung never complained about Apple's language choices as they happened. Indeed, Samsung only brought this issue to the court's attention after the trial ended.
And with no evidence that the jury was persuaded or influenced by Apple's closing arguments, the retrial of the retrial has come to an end and we can now look forward to yet another mega-trial between these two tech giants slated to get underway next month.
Meanwhile, recall that Tim Cook is slated to meet with Samsung CEO Kwon Oh-hyun on February 19 in a last-ditch effort to reach a settlement agreement.
Koh's full ruling can be read below courtesy of FOSS Patents.