Apple and Samsung have only been at it for a day and already the two companies are squabbling. In a motion filed earlier this afternoon, Apple expressed displeasure with the fact that Samsung, during its opening argument, asserted that Apple doesn't practice the patents it's asserting against the Korean tech giant.
Consequently, Apple filed a motion seeking permission from the court to present evidence and testimony which would serve to prove that Apple "has practiced and continues to practice the '414, '172, and '959 patents." In the interest of clarification the aforementioned patents relate to Asynchronous data synchronization, predictive typing, and unified search, respectively.
Apple's motion reads in part:
During opening statements, Samsung's counsel repeatedly made irrelevant, misleading, and even untrue statements that have undoubtedly caused the jury to form impressions that are highly prejudicial to Apple. Over and over again, Samsung's counsel represented that Apple has never practiced the '414, '172, and '959 patents-even though, as Samsung knows, Apple has sold and continues to sell products that use each of Apple's asserted patents. The Court's order limiting Apple's ability to contend that it practices the '414, '172, and '959 patents at trial does not (and cannot) permit Samsung to affirmatively present false factual statements to the jury; but now that Samsung has done precisely that, Apple should be permitted to respond with testimony and evidence demonstrating that Apple practices those patents.
What's more, Apple wants Judge Lucy Koh to instruct the jury that whether or not a party practices an asserted patent is irrelevant towards the issues of patent infringement and validity.
Apple's motion also seeks a revised jury instruction in the wake of Samsung mentioning the injunctive relief Apple is seeking. Apple contends that in referencing the idea of a permanent injunction, Samsung is prejudicing the jury.
Permanent injunctive relief is an equitable remedy for the Court-and the Court alone-to decide following the jury's verdict. Samsung is asking the jurors to decide this case based on the consequences of their verdict, not the facts or the law. Samsung's statement risks that the jury will think that Apple is not entitled to damages or, even worse, that it should find no liability to avoid the possibility of an injunction. It is an improper invitation to jury nullification.
Koh subsequently ordered Samsung to file a response to Apple's motion by 6:00 PM today. A determinative judgement on the motion should be coming soon.
I''ve uploaded Apple's motion to Scribd, along with a transcript of Samsung's opening statement which contains a number of excerpts Apple took umbrage with.