Samsung says $2b Apple suit is attack on Android

The battle between Apple and Samsung continues. Photo / Thinkstock, AFP

Samsung told jurors at the opening of a $2 billion trial that Apple's patent case is really an attack on Google's Android operating system and a ploy to stem smartphone competition that has overwhelmed iPhone sales.

Apple resorted to suing Samsung to try to win an infringement verdict and a court order blocking sales of phones that use Android, John Quinn, a lawyer for the Suwon, South Korea-based company told the federal jury on Tuesday.

"What this case is really about is Apple trying to limit consumer choice," and "trying to gain from you in this courtroom what it has lost in the marketplace," Quinn said. "It's an attack on Android. That's what this case is."

Both companies presented opening arguments on Tuesday in their second US patent trial over a smartphone market that was valued at $338.2 billion last year, according to data compiled by Bloomberg. Samsung had 31 per cent of industry revenue, compared with 15 per cent for Apple, whose share of the market has shrunk as the touch-screen interface has become commonplace and Samsung, LG and Lenovo have introduced lower-cost alternatives.

Jurors were chosen on Monday in the same San Jose, California courtroom where a jury two years ago found that Samsung infringed Apple's patents and awarded $1.05 billion in damages. US District Judge Lucy Koh's repeated pleas for a settlement went unheeded, and the companies have returned for what is scheduled to be another month-long trial and inevitable appeals. The companies have spent hundreds of millions of dollars fighting each other in court and regulatory disputes on four continents.

Earlier on Tuesday, Harold McElhinny, a lawyer for Apple, foreshadowed Samsung's argument, arguing that the company is "going to point the finger at Google," by claiming the features at issue are "Android software, we get it from Google."

"Don't be misled," McElhinny said. "This case is not about Google. It is Samsung, not Google that has made the decision to put these features in its phones."

It's Samsung and not Google, he repeated that is "selling these products for a profit" and which "keeps on infringing Apple's intellectual property."

Using teams of lawyers almost identical to those in the 2012 trial, each side will call as witnesses a mix of company executives and industry experts to try to show that sales of its rival's products were driven by copied technology.

Apple claims that 10 Samsung products, including the Galaxy S3, infringe five patents and is seeking about $2 billion in damages, according to a court filing. Samsung alleges that nine Apple products, including the iPhone 5 and versions of the iPad and iPod, infringe two patents. Samsung seeks about $6.9 million in damages, according to a court filing.

Apple founder Steve Jobs realized that against Google's strides, Apple faced an "innovators dilemma," Quinn said in court. He described an internal October 2010 email from Jobs announcing a "2011: Holy War with Google," saying one of the Cupertino, California-based company's goals was to "Catch up to Google" in its Android and cloud service capabilities.

Samsung's witness list includes seven employees of Google, which isn't a party to the lawsuit. A Google representative didn't immediately respond to an email seeking comment on the claims in the trial.

Philip Schiller, Apple's senior vice president of product marketing, is set to be the first witness to testify.

In the first trial, jurors found Samsung infringed six of seven Apple patents related to earlier models and rejected all of Samsung's claims against Apple products. Damages against Samsung were reduced to $930 million after a retrial. Samsung has appealed that award, as well as the original infringement verdict.

Apple was unable after the 2012 verdict to persuade Koh to ban the sale of Samsung's infringing products in the U.S., a goal that the iPhone maker has said is more important than monetary compensation. Koh, acting on orders from an appeals court, reconsidered her decision and concluded March 11 that Apple still hadn't marshalled enough evidence to support its request covering more than 20 devices no longer on the market. If Apple again convinces jurors that its technology was copied, it can then try anew for a sales ban.

Earlier on Tuesday, two jurors were dismissed - one due to illness and another who claimed financial hardship - reducing the jury to four women and four men.

One juror is a retired IBM software systems manager, who said he oversaw developers at a software division that sought to patent inventions and was responsible for profit-and-loss statements and providing technical direction. He also gave a deposition in a lawsuit accusing Compuware of copying IBM's code, a case that settled before trial.

"Someone with that kind of background is likely to be influential on a jury," Mark Lemley, a professor at Stanford Law School who isn't involved in the case, said in an email. "The question is, in which direction."

"IBM was known for aggressively patenting software, but software engineers themselves don't tend to think highly of software patents," Lemley said. "So both sides might see him as a potential ally."

- Bloomberg