San Jose, CA — Today’s session in the Apple-Samsung trial has begun and Judge Kho is ready to describe the jury instructions to the court and the large public gathered at a Federal courtroom. The judge estimates it may take her more than one hour to recite the full instructions, which run about 20 pages.
The contents of the instructions tend towards the highly technical, and appear as a claim form outline, forcing the jury to check through yes and no answers on the trial’s possible infringements.
We’ll add a copy of the instructions shortly but we will summarize key points as the Judge recites them.
- Judge Kho: “In deciding the facts of this case you may have to decide which one to believe and which one not to believe.” She says the jury may not believe everything a witness said.
- The weight of the evidence as to a fact does not depend on the number of witnesses, or whether they took notes, but they should not be overly influence by their notes.
- Some witnesses, because of education or experience, were permitted to give their opinions. Opinions should be rejected or accepted [depending] on the evidence of the case.
- The physical devices discussed in the trial were given to the jury. She says they can’t amend the devices and must not download anything into them. No quick software updates and no use of the USB ports.
- To resolve Apple’s claims, the jury will need to know whether Samsung breached its contractual obligations and trade dress of the iPhone and of diluting unregistered trade dress of the iPad as well. She once again explains the importance of “trade dress” claims, as protectable and valid under the law.
- “If a trade dress is not protectable, then it is bound as infringement to dilution.”
– Some of the more important instructions come in: The jury should note whether Apple’s devices were distinctive BEFORE the Samsung products in question were created and sold (essentially, after the iPhone was announced in 2007). Also, the jury must decide whether Samsung’s products were confusing when compared to Apple’s.
- The judge moves to the Samsung countersuit, detailing the claims they must decide on of the Apple patents. Mainly the claims of use of “prior art.”
- “Trade dress is the non-functional physical detail and design of a product, which identifies the product’s source and distinguishes it from the products of others.”
- “Trade dress is the product’s total image and overall appearance, and may include features such as size, shape, color, color combinations, texture, or graphics. In other words, trade dress is the form in which a person presents a product or service to the market, its manner of display. “ A person [or company] who uses the trade dress of another may be liable for damages.
- The judge says a major claim the jury must decide is whether the companies moved with reckless disregard in copying patents, moving beyond the expected inspiration that most related technology products usually provide for each other.
- “If you find that the preponderance of the evidence shows that the trade dress is essential to the product’s use or purpose, or that it affects the product’s cost or quality, then you must find the trade dress functional and thus unprotectable. ”
- This is very important: There are seven factors the jury must consider when looking at the “likelihood of confusion” through trade dress, where “actual confusion” isn’t required for a “likelihood of confusion,” the later is what is needed to find Samsung guilty of confusion and “intent benefit… an intent to cause confusion.”
- This is the fifth factor in its entirety: “Samsung’s Intent. Knowing use by Samsung of Apple’s asserted iPad/iPad 2 trade dress to identify similar goods may show an intent to derive benefit from the reputation of Apple’s trade dress, suggesting an intent to cause a likelihood of confusion. On the other hand, even in the absence of proof that Samsung acted knowingly, the use of Apple’s trade dress to identify similar goods may indicate a likelihood of confusion.”
- FINAL JURY INSTRUCTION NO. 84 MONOPOLIZATION—INJURY AND DAMAGES:
“Apple is entitled to recover damages for an injury to its business or property if it can establish three elements of injury and causation: Apple must prove it was injured as a result of Samsung’s alleged violation of the antitrust laws. Second, Apple must prove that Samsung’s alleged illegal conduct was a material cause of Apple’s injury. This means that Apple must prove that some damages occurred as a result of Samsung’s alleged antitrust violation, and not some other cause. Apple is not required to prove that Samsung’s alleged antitrust violation was the sole cause of its injury; nor need Apple eliminate all other possible causes of injury. Third, Apple must prove that its injury is the type of injury that the antitrust laws were intended to prevent. If Apple’s injury was caused by a reduction in competition or acts that would otherwise harm consumers, then Apple’s injury is an “antitrust injury.” The costs and expenses in defending against the assertion of declared-essential patents may be antitrust injury. On the other hand, if Apple’s injuries were caused by heightened competition, the competitive process itself, or by acts that would benefit consumers, then Apple’s injuries are not antitrust injuries, and Apple may not recover damages for those injuries under the antitrust laws.”