Apple-Samsung Lawyers Make Final Pitch to Jury on Damages

, The Litigation Daily

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This story was first published by The Recorder, an American Lawyer affiliate.

SAN JOSE — Squeezing in their last jabs, lawyers for Apple alleged that Samsung executives never appeared in court because they did not dare reveal their real aim for the companies' retrial: a verdict that split the difference.

Since the parties reunited in U.S. District Judge Lucy Koh's courtroom last week to hash out damages, Samsung has repeatedly asked jurors to award damages of $52 million—nearly $330 million less than what Apple says it is entitled to. As he delivered his rebuttal Tuesday morning, Apple lawyer Harold McElhinny of Morrison & Foerster seized on the Samsung executives' absence to offer his own explanation for the divide. Figuring jurors would want to grant an award that fell somewhere in between the parties' requests, Samsung intentionally low-balled its calculations, McElhinny argued.

"How can they disrespect the process so much that they don't even come to trial?" McElhinny asked jurors, reprising a theme that played well with a jury last year. "I will tell you plainly what their strategy is. They expect you to compromise their verdict." But Samsung lawyer William Price insisted during his closing argument that Apple deserved nothing more because it holds narrow patents that his client could have easily designed around. He stressed that the other side had failed to prove that demand for the 13 Samsung products on trial was driven by the few features that infringe Apple's patents.

"We're saying Apple is entitled to profit, but not some rigged calculation of profit based on semantics," said Price, a partner at Quinn Emanuel Urquhart & Sullivan.

The sole question for the jury is how much Samsung must pay Apple for its infringement of five patents. U.S. District Judge Lucy Koh ordered the damages do-over  earlier this year, concluding that some of the original jury's $1.05 billion award in 2012 had been calculated using an improper notice date.

The intervening year did little to mellow tempers. And lawyers for the mobile titans kept fighting even after jurors filed out of the courtroom to begin deliberations. Price moved for a mistrial, objecting to remarks McElhinny made about the extinction of American manufacturers. Stressing the importance of the patent system, McElhinny told jurors during his rebuttal that many prominent American television makers went out of business because they failed to protect their intellectual property.

Price argued that the remark threatened to prejudice jurors against foreign companies like Samsung, especially since his client is a noted maker of TVs. He also accused McElhinny of injecting racial animus into the jury's deliberations. Apple lawyer William Lee, a partner at Wilmer Cutler Pickering Hale and Dorr, quickly disagreed, noting he is of Asian descent.

Koh yanked the jury back into the courtroom to remind them that they are not supposed to allow personal preferences to influence their decision-making. She allowed Samsung to file a motion for mistrial as part of the flurry of briefing that will follow the jury's verdict.

Lawyers for Apple hit many patriotic notes in their last words to the jury. During his closing argument for the Cupertino-based company, Lee hailed the American patent system and argued that Apple has always abided by its rules. Samsung has flagrantly disregarded them, he contended.

"If you accept Samsung's numbers, you have turned our system on its head," Lee warned jurors. "The system will become one where the infringer profits."

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