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The Litigation Consulting Report

Walking the Line: Don't Coach Your Experts (Re: Apple v. Samsung)

Posted by Ryan Flax on Tue, Apr 29, 2014 @ 01:49 PM


bdo not coach expert witnesses apple samsungy Ryan H. Flax, Esq.
(Former) Managing Director, Litigation Consulting
A2L Consulting

Expert witnesses are a key component of almost every big-litigation. As litigators, we rely on the evidence developed by our expert witnesses, presented as their testimony opinions based on the facts, to show jurors or the court why our client should prevail. Well, it’s not as easy to do this as you think, because you can’t control your experts and you also can’t leave it up to them.

In federal court, experts are bound by Rule of Civil Procedure 26 to disclose the subject matter upon which they’ll testify in court. As litigators, it’s our job to make sure (1) the expert report is accurate and comprehensive to the needed expert testimony that serves the client’s litigation needs and (2) that the expert is well prepared to be deposed and then testify on the subject matter of that report. Even very experienced expert witnesses need intense help preparing for depositions and trial testimony.  Inexperienced expert witnesses require a ground-up education.

So what happens if that report, as it was served to opposing counsel when it was scheduled to be, doesn’t jive with what you need that expert to say in court? We have just received a free lesson in what not to do from Judge Lucy Koh in the current edition of the Apply v. Samsung patent litigation currently underway in the Northern District of California.

Just to lay a bit of foundation for this lesson – the case involves several patents of each company who accused each other of infringement relating to smartphone technology. One of the Apple patents covers the swipe-to-unlock feature of the iPhone, another covers a feature called “quick links” found in Apple’s devices. This later patent (No. 5,946,647 shown below) has just now been returned to the Samsung litigation based upon an order by the U.S. Court of Appeals for the Federal Circuit, which in an opinion last Friday (April 25, 2014) revived the patent by affirming a claim construction by Judge Richard A. Posner from a different case by Apple against Motorola – Judge Posner’s claim construction contrasted with that of Judge Luch Koh in the Samsung litigation. 

Confused? So was the judge and so were the parties and so were their experts.

quick links patent apple samsung“Quick links” refers to a software function that recognizes text and other things viewable on a smartphone, e.g., a phone number, an email address, a date, or a name, and provides an automatic link to other relevant functions in the phone, like dialing that phone number, drafting an email, adding a calendar event, or adding a contact. Earlier in the Samsung trial, Apple argued that the Motorola-related case information be excluded – Judge Koh agreed and, so, neither Apple nor Samsung presented evidence relating to the Judge Posner claim construction of the ’647 patent (a key to the divergent construction seems to be that a separate thing, called an “analyzer server,” is required as a go-between for the recognizable link and the related functionality).

With all the apparent confusion over the correct claim construction at this point, you could almost forgive Samsung’s expert for using an ultimately incorrect claim construction of the ’647 patent’s claims in his expert report (he followed the one Judge Koh made giving claim terms their plain and ordinary meaning, but he could have given alternate opinions based on the divergent constructions of Judge Posner).  What he cannot be allowed to do, and what Samsung’s counsel cannot be allowed to encourage, is to testify in the current case on an opinion not expressed in his expert report on the patent (and, apparently also not introduced in deposition testimony, which could have arguably opened the door to the issue).

expert witness apple samsung coached preparedAfter Samsung’s patent/technology expert, Kevin Jaffay, testified, “I have been using this [Posner’s] construction since the first day I worked on this case,” a “visibly angry” Judge Koh said, “[i]n his report, he does not adopt Posner’s construction and then he gets up on the stand and says he adopted it from day one.  I’m going to strike what he said.  I think he was primed to say that and that’s improper.”  (reported by Law360, B.Winegarner (subscription required)).

Not only did Judge Koh strike Samsung’s expert’s testimony on non-infringement of the ’647 patent, she didn’t refund Samsung’s time on the chess clock at trial, which may be a crippling one-two punch for an already-behind-the-8-ball-Samsung. Quite a sanction by an angry judge.

The take-home lesson from this series of events is multifold. First, experts are bound by their expert reports, but that doesn’t mean their expert reports must be limited in any specific way.  As counsel, when we work with our experts to outline the issues to be addressed in reports and then, potentially, testified to at trial, we should be strategic and tactical and keep our experts on track, but be open-minded, flexible, and do our best to plan for every trial contingency so we can include “outs” in the expert reports. Here, it appears that Samsung’s expert suggested that he had considered Judge Posner’s claim construction all along, but his expert’s report did not bear that out in any useful way and it made an enemy of the already-sensitive judge (about her claim construction).

Second, we all know that as counsel it’s our job to get our experts totally ready to competently and persuasively testify at trial. We need to spend hours and days and weeks doing this witness preparation and cover all bases of evidence and all contingencies for trial developments and cross examination. However, what we cannot do is put words in our expert’s mouth. This is the line we must walk. It is the expert’s job to present his own opinions on the facts under the law as we explain it to him. It is not the expert’s job to be our and/or our client’s mouthpiece.  The lines are clearer in other countries, such as the U.K., but the principle remains true that expert witnesses are akin to servants of the court and the legal system – they are not advocates, that’s our job as counsel. Make sure you stay on the right side of the line by preparing, not coaching your expert witnesses.

Other articles related to expert witnesses and the Apple v. Samsung litigation from A2L Consulting:

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Tags: Patent Litigation, Trial Preparation, Expert Witness, Judges, Claim Construction, Witness Preparation, Apple v. Samsung

Design Patents: Still Poised for Prominence

Posted by Ryan Flax on Thu, Feb 7, 2013 @ 07:00 AM

design patents intellectual property litigation consultingby Ryan H. Flax
(Former) Managing Director, Litigation Consulting
A2L Consulting

I’ve written in several past articles (here and here) about what I saw as a true turning point for design patents in the United States. I explained that, based on the Apple v. Samsung trial in the Northern District of California, which provided a clear example of the presentation and litigation power of design patents as a sword against competitors, but also capped this off with the third-largest patent damages verdict in U.S. history regardless of patent type (utility or design), I believed that we would see more design patents being applied for and more design patents litigated. Well, the U.S. Court of Appeals for the Federal Circuit (Fed. Cir.) must really want me to be right.

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Bed Bath & Beyond had won a ruling from the district court (S.D.N.Y) against plaintiff and inventor Roger J. Hall, sua sponte nonetheless, that Hall had failed to properly state a claim (in his complaint) for design patent infringement under Federal Rule of Civil Procedure 12(b)(6). “[D]raw[ing] on its judicial experience and common sense,” the district court held that Hall’s patent infringement complaint didn’t contain “any allegations to show what aspects of the Tote Towel merit design patent protection, or how each Defendants has infringed the protected patent claim.” Rubbish – according to the Fed. Cir.

On January 25, the Fed. Cir. reinstated inventor Hall’s suit against Bed Bath & Beyond Inc. over his design patent, confirming that only a minimal threshold need be plead in a complaint to comply with the rules. The opinion confirms that in bringing a design patent case, the plaintiff need only comport with the standard notice requirements for pleading a complaint, rather than a point-by-point comparison of the patent and the accused design.

design patent consulting trial consulting intellectual property edtxMr. Hall’s patent is U.S. Design Patent D596,439, which is directed to a hooded towel.  The design shows towel with a creased portion that can be worn as a hood (right).  Hall calls the design a “tote towel.” In addition to confirming the low threshold for pleading a case of design patent infringement, the Fed. Cir. also confirmed the law of design patent infringement (as set forth in Egyptian Goddess, Inc. v. Swisa, Inc.) that infringement is based on the design as a whole rather than on discrete points of novelty.

The criterion for infringement is “if, in the eye of the ordinary observer, giving such attention as a purchaser usually gives, two designs are substantially the same, if the resemblance is such as to deceive such an observer, inducing him to purchase one supposing it to be the other, the first one patented is infringed by the other.”

Said Mitchell Shelowitz (of Pearl Cohen Zedek Latzer LLP), Hall’s counsel, “[t]he ruling is the most important decision on design patent law since the Egyptian Goddess ruling,” and "clearly sets forth an unequivocal pleading standard for design patents that will be the leading precedent on this issue going forward.” (credit Law360.com for the quote).

Said Michael Powell (of Baker Donelson Bearman Caldwell & Berkowitz PC), “If you get sued, you want to know what you’re being sued for, and with a utility patent, that can be pretty complicated," he said. "When you have a design patent, the claim is one claim, which is what's shown in the drawing.” (credit Law360.com for the quote).  Mr. Powell’s comment is compelling and falls in line with my belief that a design patent can be as valuable as a utility patent, but is easier to use at trial because of its simplicity.  This makes a design patent, all other things being equal, more valuable than a utility patent because a good litigator can more easily explain it, more easily demonstrate its overlap with the accused design, and, thus, more easily persuade a jury of its infringement.

design patent litigation consultants graphics patent delawareHere’s another drawing from Hall’s patent covering his design.

Consider again the criterion for infringement: if in the eyes of an ordinary observer, he/she may purchase the accused thing believing it to be the patented design – and take a look at the graphic Mr. Hall included in his complaint (below). Here is a picture of the accused towel (blue towel) and his design embodied in a reduction to practice (white towel).

design patent sdny trial graphics patentHow do you think a jury would react to such a graphic? How many words is this graphic worth in Hall’s complaint or in a subsequent summary judgment brief? This image truly shows the value of both design patents and their manner of proof – litigation graphics.

A jury need only be convinced that these two things look pretty similar. Combine that with a decent story, e.g., “I pitched my idea to the defendant in confidence, disclosed all my secret designs, but they said they weren’t interested – I was stunned when I found out they’d come out with this new product just months later – and look how much it looks like my drawings.” This case simply reinforces my opinion that we’re on the brink of a design patent renaissance.

Other patent litigation and intellectual property litigation consulting resources on A2L Consulting's site:

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Tags: Trial Graphics, Litigation Graphics, Litigation Consulting, Demonstrative Evidence, Patent Litigation, Design Patents, Apple v. Samsung

Latest Developments in Apple v. Samsung: Post-Trial Motions Ruled-Upon

Posted by Ryan Flax on Mon, Feb 4, 2013 @ 09:00 AM

apple v samsung post trial motions appeal judge koh litigation consultingby Ryan Flax
(Former) Managing Director, Litigation Consulting
A2L Consulting

The trial is long over, and now the post-trial motions have been ruled-upon by U.S. District Court Judge Lucy Koh. The Judge has just dealt with the post-trial motions, bringing finality to the case and opening the door to the appeal process.

The results of her latest rulings as to Apple’s motions are as follows:

  • Apple’s request for enhanced damages (over the $1.05 billion awarded by the jury) for willful patent infringement is denied (Judge Koh ruled the infringement was not willful, reversing the jury’s findings on willfulness).
  • Apple’s trade dress (the look) of its iPad products (specifically the original one and the second version) was not protectable and there will be no new trial on the issue.
  • Samsung’s Galaxy Tab 10.1 tablet product does not infringe Apple’s ‘889 design patent as a matter of law and there will be no new trial on the issue.
  • Samsung’s Galaxy Ace phone does not infringe Apple’s ‘677 design patent as a matter of law and no new trial would be granted on the issue.
  • Samsung’s Galaxy S II and Infuse 4G phones do not infringe Apple’s ‘087 design patent and there will be no new trial on the issues.
  • Not all (but some of) the accused Samsung products dilute (akin to trademark infringement) Apple’s iPhone trade dress (registered and not) and there will be no new trial.
  • Apple lost on its attempt to get a judgment as a matter of law on the infringement of unregistered combination iPhone trade dress (a vague bit of IP to say the least) and will not get a new trial on the issue.
  • Not all (but some of) the accused Samsung products infringe Apple’s ‘915 and ‘163 utility patents as a matter of law and there’ll be no new trial thereon.
  • And, Apple lost its motions for JMOL on several ancillary claims for breach of contract and antitrust violations.
  • Apple did get one win here – claims 10 and 15 of Samsung’s ‘941 patent were held invalid as a matter of law – however, Apple lost such motions relating to other Samsung patents’ claims.

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All of these “failures” or “loses” by Apple are somewhat inconsequential because the company has still won an unprecedented victory over its largest rival. The biggest deal here, by far, is Apple’s loss on willful infringement, where if the jury’s finding of willfulness was upheld and taken to its limit, it could have resulted in $3 billion in damages awarded to Apple.  That would have been about 1.5% of Samsung’s market value. In finding no willful infringement, Judge Koh overruled the jury’s decision on the issue.

samsung apple infringement iphone trial litigation consultingJudge Koh’s rulings on Samsung’s motions were as follows:

  • First of two wins for Samsung – claims 15 and 16 of its ‘516 patent are not exhausted.
  • Second, and more important win for Samsung – no willful patent infringement.
  • Samsung lost its bid to overturn the jury’s finding of infringement of Apple’s ‘087, ‘677, and ‘305 design patents or get a new trial thereon.
  • Likewise, Samsung lost its similar attempts to invalidate these same three patents and Apple’s ‘889 design patent for a variety of reasons (functionality, as design patents can’t cover function; obviousness; double patenting).
  • Samsung failed to prove that the unregistered iPhone 3G’s trade dress was undeserving of protection.
  • Samsung failed to show that Apple hadn’t proven its iPhone’s trade dress was diluted (and willfully so) by the Samsung products.
  • Samsung lost in its bid to overturn the jury’s finding of infringement of Apple’s ‘915 and ‘318 utility patents and won’t get a new trial thereon.
  • Likewise, Samsung lost in its attempt to invalidate Apple’s three utility patents.
  • The court declined to rule on whether the jury’s calculation of damages was correct as either including or not including global sales or acts of alleged infringement.
  • The court did not change the jury’s findings of no-infringement of Samsung’s patents.
  • And, finally, the court ruled that the trial was not “manifestly unfair” to Samsung.

None of these results is surprising in the least. This is how typical patent trials wrap up. Now, on to the appeal with the Court of Appeals for the Federal Circuit (Fed. Cir.). Expect the notice of appeal to be filed soon by Samsung and for the hearing to be scheduled sometime this year. I expect validity to be the biggest issue when the time comes.

In another development in a related litigation between Apple and Samsung in the same court, Thursday the Fed. Cir. rejected Apple’s request for an en banc rehearing on the order lifting Judge Koh’s imposed injunction on Samsung’s Galaxy Nexus phone. In October, the Fed. Cir. held that the injunction was improper and an abuse of the district court’s discretion because of a lack of “causal nexus” between demand for Samsung’s phone and the infringing feature (a search function embodied in Apple’s Siri). In view of this ruling that the injunction is permanently off, it should make it pretty difficult for Apple to exert any control over sales of the Samsung phone, which is to be the subject of another patent trial between the companies scheduled March 31, 2014.

I’m paying close attention to the events in this patent war as they unfold in the U.S. and around the world and will continue to keep you apprised of those of particular interest.

Other articles and resources related to A2L Consulting's Intellectual Property Litigation Consulting Services:

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Tags: Litigation Consulting, Patent Litigation, Apple v. Samsung

Apple v. Samsung: Thanks to Patent Reexam - It's Not Over Yet

Posted by Ryan Flax on Mon, Oct 29, 2012 @ 12:26 PM

patent reexam apple samsung litigation consultantby Ryan H. Flax
(Former) Managing Director, Litigation Consulting

A2L Consulting 

It feels like I’m beating a dead horse, but there is obviously still some life left in the Apple v. Samsung patent case. Interesting things continue to develop since since I wrote about storytelling and the case going to the jury, the jury's verdict and the implications for design patents.

Last we left the Apple v. Samsung saga, the parties were arguing about damages enhancement and injunctions.

On Monday, Samsung filed a statement with the U.S. District Court in California informing the Court that the U.S. Patent and Trademark Office has just rejected claim 19 of U.S. Patent 7,496,381 as being unpatentable as anticipated by the prior art (actually, all 20 claims were rejected, but only claim 19 matters here).

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The ‘381 patent is directed to the “screen bounce-back” feature of the “iProducts” and was one of the six Apple patents found infringed in the case.  Claim 19 was the sole claim of the ‘381 patent at issue in the trial.

apple samsung litigation consultants patent reexamClaim 19 of the ‘381 patent was rejected by an USPTO patent examiner in what’s called an ex parte reexamination, or “reexam” proceeding by those of us in the field.  A reexam is a reopening of the USPTO’s patentability examination of an issued patent based on prior art.  Normally, once a patent is granted (issued), the story is over.

However, either the patent-holder or some unknown, undisclosed party can file for a reexam if some new issue of patentability (prior art) is discovered after the patent is granted by the USPTO. The term “ex parte” means that even if some third-party provoked the reexam, after the reexam is instituted, only the USPTO and the patent holder are involved – the provoker (here, likely Samsung) gets out of the way.

The finding that a single claim is not patentable is not the same as finding an entire patent invalid.  It means that that single claim is invalid (this is also how it is supposed to work at trial – on a claim-by-claim basis).

ryan flax litigation consultant a2l consulting graphicsThis is not the first reexam for the ‘381 patent.  There was another that concluded in April 2011 that found each of the claims, 1-20, patentable.  But, as is clear, just because a patent has been through reexam once does not foreclose it happening again and with a different outcome.

The effect of this claim being found unpatentable is not yet clear.  Samsung suggests that the ’381 patent is likely no longer infringed and that the new rejection should have an impact on the damages enhancement and potential injunction now at issue in the case.  The reality is that we cannot be certain that this rejection will stand. 

There is still an ongoing discussion between the USPTO examiner and Apple over the patentability of the patent claims. The rejection of claim 19 is not yet final.  It is possible that Apple’s patent prosecution attorneys will convince the examiner that the rejection is incorrect and that it will be withdrawn. It also may be maintained finally and the claims cancelled by the USPTO.

It is likely, however, that this reexam rejection could affect the enhancement of damages to some degree.  Enhanced damages in a patent case are awarded if the infringement is willful and determining willfulness is an objective test for the court to determine if the infringer had a reasonable belief that they weren’t infringing. The rejection of the ’381 patent’s claim 19 seems to establish that Samsung should have had a good faith belief that the claim wasn’t valid and, thus, that it didn’t infringe. 

Since there are a bunch of other Apple patents not expressly in question by the USPTO and found infringed, it is doubtful that this even will sway the decision on injunction much.  A product can be enjoined from importation or sale even if it only infringes one claim of the six patents-at-suit.

I’m eager to see if this horse gets up again.  Let’s all stay tuned.

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Tags: Litigation Consulting, Patent Litigation, Claim Construction, Apple v. Samsung

A Patent Renaissance Is Coming, Spurred by Apple's Design Patent Litigation

Posted by Ryan Flax on Wed, Sep 26, 2012 @ 10:00 AM

by Ryan H. Flax
(Former) Managing Director, Litigation Consulting
A2L Consulting 

I believe we may be on the verge of a revolution in patent law.  I spent 12 years practicing patent law, handling both patent litigation and non-litigation work (prosecution, opinions, licensing, counseling, etc.).  I’ve spent the last few weeks paying close attention to, examining, and writing about the just concluded Apple, Inc. v. Samsung Electronics Co. Ltd. trial and the litigation graphics used by both sides – and it’s changed the way I think about U.S. patents and their value.  There are two kinds of patents in the U.S.: utility patents and their step-brother, design patents.  Guess who’s now taking its place at center stage?

design patent litigation graphics appleThe Apple patents found infringed by Samsung were U.S. Utility Patent Numbers 7,469,381 (relating to the screen-bounce-back feature); 7,844,915 (relating to pinch-to-zoom); and 7,864,163 (relating to tap-to-zoom); and Design Patent Numbers D593,087 (design of iPhone back); D604,305 (iPhone home screen design, at right); and D618,677 (design of iPhone front). So, it was an even mix of design and utility patents.  This strikes me as a possible turning point in the history of U.S. patents.

What really interests me are the three design patents enforced and found infringed (and valid) in this case.  It is my sincere belief that if you polled patent attorneys in the United States, you’d find that 9 out of 10 feel (or, if they closely followed the Apple case – felt) that design patents were a bit of a joke.  Sure, design patents have been around for years and have been successfully enforced here and there, but never at this scale of public importance, impact and damages awarded.

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The jury awarded Apple about $1.05 billion, which could be as much as tripled by the Court because the jury found that Samsung’s infringement was willful.  Now Apple is fighting for enhanced damages and a permanent ban on many of Samsung’s products.  There is no way to discern exactly what the contribution of any one of the infringed patents is to this total damages award because the verdict sheet does not provide for this level of detail, but we do know that the three design patents contributed significantly and were each found not invalid.  This presents the turning point I mentioned above.

patent litigation litigation graphics design patentsWhen you consider the goal associated with acquiring patents – to derive value – and the means by which patent holders typically do so – by enforcing those patents in court, the value of design patents becomes clear.  Design patents cover the way something looks and they are infringed when someone applies the patented design or a colorable imitation thereof without permission of the patent holder. 

In court, you must convince a jury of this infringement, which means you must persuade the jurors that the accused infringer has copied your design.  This is a far simpler task (e.g., “doesn’t this product look like this drawing?”) than teaching and persuading a jury that the flash memory circuit in the accused’s processor is the same as or equivalent to the “means for storing data” recited by the claim in your utility patent – get it?  “Easy to explain” adds value.  “Easy to build a story around” adds value.

In a process similar to a trademark or copyright case, juries are going to be called upon to look at a design (e.g., a laptop case, an automobile grill’s shape, a pair of yoga pants tapered leg) and decide whether it infringes a patent.  If you think there’s a need for mock jury testing and litigation graphics in utility patent infringement cases, you can bet their essential in a design patent infringement case – they were in the Apple v. Samsung case.  Your “story” of copying if you’re the patent holder or your “story” about independent design or the long history of similar design in the field if you’re the accused will have to be perfect to win.

In the Apple/Samsung case, a Samsung device called the Fascinate was found to infringe Apple’s ‘305 design patent.  Here’s an image of the Fascinate’s screen display and icons alongside a color image figure from Apple’s design patent:

iphone apple samsung design patent graphics consultants

One of the images above is Apple’s intellectual property (well, maybe both are) and the other is a competitor’s product.  What do you think?  Can you tell which is which?  Do you think the jury could?

Under the law as set forth by the U.S. Court of Appeals for the Federal Circuit in Egyptian Goddess, Inc. v. Swisa, Inc., 543 F.3d 665 (Fed. Cir. 2008), the test for design patent infringement is “whether an ordinary observer, familiar with the prior art, would be deceived into thinking that the accused design was the same as the patented design.”  This is a beautiful test if you’re a plaintiff’s attorney, particularly if you’re Apple’s attorneys.  How much easier is it to simply hold up two pictures in the form of litigation graphics and ask, “Don’t these look the same?”

litigation graphics demonstrative evidence design patent litigationTo win at trial, you have to get through to the people on the jury.  They need to understand you and your case.  In the typical patent case, this is no easy task, but when a design patent is at issue, the pictures can do much of the arguing for you.

This underscores the importance of telling a convincing and persuasive story in court.  Jurors want to reach the right result, so how do you help them do it?

Litigators must be effective at storytelling – jurors must be reached on an emotional level.  To do this, litigators should take time to develop effective litigation graphics and test their story and theme with mock jurors in preparation for trial.  With effective demonstrative evidence, also called litigation graphics, attorneys can teach and argue from their comfort-zone – by lecturing, but the carefully crafted litigation graphics will provide the jurors what they need to really understand what’s being argued and give them a chance to agree.

Most people (remember, jurors are people) are visual learners and do most of their “learning” by watching television or surfing the internet.  In court, litigators must play on this battlefield and with the appropriate weapons.  Design patents, in particular, lend themselves to this advanced style of litigating.

Another asset of the design patent is the type of damages available for infringement.  Unlike damages for infringing a utility patent, the total profits relating to the infringing product can be awarded to the patent holder.  That means, the entirety of infringement profits, rather than just the amount that could be reasonably attributed to the infringement, can be awarded.  In the Apple v. Samsung case, this was a staggering amount; it won’t always be a billion dollars.

I expect to see a dramatic increase in the number of design patents filed-for and in the number of design patents litigated over the next year and beyond.  Patent attorneys should rejoice in this new frontier!

Oh, and one more thing – in the images above, Apple’s patent drawing is the one on the left and Samsung’s product is on the right (or is it the other way?).


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Tags: Trial Graphics, Trial Consultants, Litigation Graphics, Courtroom Presentations, Demonstrative Evidence, Patent Litigation, Storytelling, Design Patents, Apple v. Samsung

Patent Litigation Graphics + Storytelling Proven Effective: The Apple v. Samsung Jury Speaks

Posted by Ryan Flax on Thu, Aug 30, 2012 @ 07:45 AM

patent litigation graphics apple samsung evidence trialBy: Ryan H. Flax
(Former) Managing Director, Litigation Consulting
A2L Consulting 

In last week’s article on the conclusion of the Apple v. Samsung patent infringement trial I emphasized that it would be the storytelling and the patent litigation graphics that accompanied the storytelling that would win the case for either Apple or Samsung.  Well, now the jury has returned its verdict: 6 of the 7 Apple patents are infringed (willfully) by Samsung (3 utility patents and 3 design patents), none of Apple’s patents are invalid, and none of Samsung’s patents are infringed by Apple.  The jurors awarded Apple $1.05 billion, or just less than half of what it asked for.

The amazing, but not unexpected, thing about the jury’s verdict is not the overwhelming victory for Apple, but how the available post-verdict jury interviews completely validate the points made in last week’s article.  As expected, the verdict was only superficially based on the law and evidence, but more so on the fact that Apple’s counsel had the better story and better intellectual property graphics (and the juiciest tidbit of evidence around which the story could be woven and graphics designed).

patent litigation ebook

Jurors Want a Story, Not a Legal Case

When asked to point to the evidence that compelled their verdict, one juror – Manuel Ilagan – explained, “on the last day, [Apple] showed the pictures [below] of the phones that Samsung made before the iPhone came out and ones that they made after the iPhone came out,” and this visual evidence at the closing was enough!

apple patent litigation graphics

Juror Ilagen went on, “we were debating about the prior art.  Hogan was jury foreman.  He had experience.  He owned patents himself . . . so he took us through his experience.  After that it was easier.  After we debated that first patent – what was prior art – because we had a hard time believing there was no prior art.  In fact we skipped that one, so we could go on faster.  It was bogging us down.” 

So, the jury skipped talking about the difficult evidence, instead relying on how they felt about the case and on the story weaved by plaintiff’s counsel.  And, as discussed below, relying heavily on the background and experience of the jurors.

Speaking of the jury foreman – Velvin Hogan – he also reported in a post-verdict interview that he had a revelation after first night of deliberations while watching television (he called it his “a ha moment”), explaining, “I was thinking about the patents, and thought, 'If this were my patent, could I defend it?'  Once I answered that question as 'yes,' it changed how I looked at things.”  So, once more, a juror (the foreman no less) reported basically disregarding the complex specifics of the law and evidence, here going with his instincts in deciding the validity of Apple’s patents and then deciding whether they were infringed.

interested folks resized 600Another juror – Aarti Mathur – expressed to reporters that, “it was a very exciting experience and a unique and novel case.”  As a litigator, can you imagine one of your jurors saying this about your next trial – what would you do to provide this kind of exciting experience for them?  This was a patent case and yet it instilled this feeling of excitement in the jurors.  Research establishes that the best way to do this is by immersing the jurors in argument and litigation graphics throughout the trial.  You want to get them interested and keep them interested.

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Seasoned patent litigator, Sal Tamburo, a partner with Dickstein Shaprio LLP noted, “patent litigators, and really litigators of any complex subject matter, face a difficult task when heading to trial.  The law is complicated as is the technology and it is our job to convince jurors, who are usually unfamiliar with the nuances of either the law or the technology, that we’re right and should win.  In essence, we need to prepare two cases, one for the jurors that is interesting, compelling, and persuasive, and one for the district and appellate courts that is solidly based in the necessary legal proof.”  Sal's right.

It was apparent that the complex law of patent infringement and the overwhelming jury instructions made it all but impossible for the Apple v. Samsung jury to really decide the case on its merits.  Not only were the jurors confused by the verdict form, but they actually came back with inconsistent verdicts and damages awards, e.g., awarding damages of $2 million on a patent they found not-infringed, and had to be sent back by the judge to resolve the inconsistencies.  This little “speed bump,” however, did not slow them down much.

As I reported in the article last week, this was a case so complicated that the judge begged the parties to settle before it went to a verdict (calling it a “coin toss”) and was also a case in which the jury instructions took two hours to explain and included a 109 page document.  With all this complexity and nuance of law, these jurors were nonetheless able to return a verdict in just under 22 hours.  This turn-around time would be extraordinary for even a simple case and is beyond imaginable for this patent case.

Jurors Want Great & Useful Graphics

In addition to juror Ilagan’s expressed reliance on Apple’s patent infringement graphics, according to its foreman the jury cut through unnecessary work by hand-drawing a matrix on a notepad to illustrate which patents Apple said were infringed by each of 26 Samsung smartphones and tablet computers.  This jury-created graphic is exactly the type of trial graphic counsel should have shown the jury during its closing arguments and then requested be entered into the record as a summary of evidence so the jury could take it with them to the jury room.

apple attorney patent litigation graphics consultantsJuror Ilagan said, “my impression was that [Apple's attorneys] Bill Lee and McElhinny were pretty good in their presentation and questioning of the witnesses.”  Mr. Ilagan was also complementary of Samsung’s counsel’s presentation (recall, this was a “coin toss”).

As I mentioned in last week’s article, with effective patent litigation graphics attorneys can teach and argue from their comfort-zone – by lecturing, but the carefully crafted graphics will provide the jurors what they need to really feel they understand what’s being argued and give them a chance to agree.  Most people, including judges and jurors, are visual learners and in court litigators must play on this battlefield and with the appropriate weapons.

Jurors Will “Hang Their Hat” on Bits of Evidence

samsung apple email evidence smoking gunJury foreman Hogan explained that the jury’s decision was based on documents illustrating Samsung’s intent to closely mimic the look of the iPhone and that “certain actors at the highest level at Samsung Electronics Co. gave orders to the sub-entities to actually copy, so the whole thing hinges on whether you think Samsung was actually copying.  The thing that did it for us was when we saw the memo from Google telling Samsung to back away from the Apple design.  The entity that had to do that actually didn’t back away.”  The litigation graphic to the left illustrates this important evidence.

And, so, on the back of one email chain, the hammer fell on Samsung to the tune of a billion dollars.

mock trial patent litigation graphicsThis point is very instructive.  It shows us that testing litigation facts, themes, and stories before trial with mock jurors is an important tool in crafting a persuasive and winning case.  Before you get to the courtroom, you want to know what facts resonate with mock jurors of the same demographics as your jury pool so you’ll use the right ammunition when it counts.


You Must Use Jury Consultants

Another interesting take-away from this jury’s verdict is that it relied heavily on the backgrounds and experiences of the jurors, even to the disregard of the law and evidence presented at the trial and instructed by the Court.  This is instructive and shows how important jury consulting can be for litigators.

juror graphics patent apple samsungFor example, the jury’s foreman (Mr. Hogan) was an engineer and holds a patent (relating to video compression software, at right).  The jury relied heavily on him to deal with the patent law issues in the jury room and he even told the Court that the jurors had reached a decision without needing the instructions

Experts agree this isn’t uncommon at all.  According to Stanford Law School Professor Mark Lemley, “if there is one juror who seems more clearly knowledgeable than the others, the jury will often look to that person to help them work through the issues, and perhaps elect him foreman.”

Hogan, told the court he had served on three juries in civil cases, spent seven years working with lawyers to obtain his own patent covering “video compression software,” and worked in the computer hard-drive industry for 35 years.  Based on this he was elected jury foreman and, I suppose this background also relieved the other jurors of having to worry too much about the gritty nuances of the law of patent infringement and validity because Mr. Hogan could sort out those details for them.

It’s been reported that Mr. Hogan said that the jurors were able to complete their deliberations in just three days and much faster than almost anyone predicted because a few jurors had engineering and legal experience, which helped with the complex issues at play.  According to Mr. Hogan, once they determined Apple's patents were valid, jurors evaluated every single device separately.

These leaps in deliberations are remarkable, but, as discussed in last week’s article, predictable.

One More Thing

Foreman Hogan explained in a televised interview his thought process regarding the law of patent validity and how he helped the rest of the jury come to terms with the law – it’s clear that (although he’s obviously very intelligent) he does not really understand it and he and the rest of the jury went on their gut instincts in most instances.  To a patent litigator, like myself, his interview is frightening on one level because it shows how hard it is to get through to lay jurors and even technically experienced jurors on the nuances of patent law and how it should apply to the facts. 

But, it’s also very instructive.  All litigators should watch and note his explanation of the jury’s process.  I think Mr. Hogan is fairly representative of what the top of the juror food chain is like and he’s a good place to start when developing your trial strategy.  Cater to their needs in proving your case – use graphics extensively, use jury consultants, and test your case.

Oh, there is one more thing.  Just for the sake of stirring the pot, here’s an ironic and amusing video of Steve Jobs discussing what great artists (and presumably great innovators and great companies, including Apple Inc.) do to succeed (can you guess what it is?):


I wish good luck to both the parties and their counsel in the appeal process, which I and other patent experts will be attentively watching.  (write this down: it’s my bet that this case ultimately settles before any opinion from the Federal Circuit).  Stay tuned.


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Ryan Flax
is the Managing Director of Litigation Consulting at A2L Consulting. He joined A2L after practicing as a patent litigator who contributed to more than $1 billion in successful outcomes. 

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Tags: Trial Graphics, Trial Consultants, Litigation Graphics, Trial Presentation, Jury Consulting, Courtroom Presentations, Mock Trial, Juries, Patent Litigation, Storytelling, Apple v. Samsung

Demonstrative Evidence & Storytelling: Lessons from Apple v. Samsung

Posted by Ryan Flax on Thu, Aug 23, 2012 @ 10:29 AM

demonstrative evidence storytellingBy Ryan H. Flax
(Former) Managing Director, Litigation Consulting
A2L Consulting 

Edit: see post-verdict follow-up article here.

In the Apple v. Samsung trial, the outcome will be the result of good storytelling and demonstrative evidence, not necessarily the best legal case.

Over the last few weeks, Apple Inc. and Samsung Electronics Co. Ltd. have viciously fought over patent infringement and other claims (see Apple's complaint and Samsung's answer [pdfs]), both in the courtroom and in the forum of public opinion. The case is steeped in patent law and relates to the alleged infringement and invalidity of utility and design patents. But, it won’t likely be the legal details or attorneys’ satisfaction of the various prongs of proving direct infringement or obviousness invalidity that will change the future of smartphone and tablet computer technology purchasing options for the foreseeable future.

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Yesterday, after closing arguments, the jurors were given their instructions by U.S. District Court Judge Lucy Koh on the legal nuances of patent infringement and validity, trade dress, contracts, and antitrust law – this took over two hours and covered 109 (yes, that’s one hundred nine) pages of text jury instructions – and then sent them away to the jury room to decide the fate of Apple, Samsung, and the American technology consumer. I’m sure that the jurors listened attentively to those instructions, but it took me most of a semester of law school to fully understand just some of those legal issues, and I respectfully doubt that those jurors are competently ready to decide the case based on the law.

demonstrative evidence lady justice scale swordWhat they will do is base their ultimate decision on their sense of justice and upon their emotions. Those jurors brought their sense of justice with them to the court on the first day of jury selection, and their emotions have been played by plaintiff and defense counsel over the course of the trial. Remember, Lady Justice wields a sword for a reason – if you’ve done something wrong, you should pay and that’s what either Apple or Samsung will be held to do based on which side’s story was more moving and convincing during the trial.

Experts agree.  According to Alexander Poltorak (CEO of the patent licensing and enforcement firm General Patent Corp.), “Juries tend to simplify the case. That's a natural tendency,” and “They want to figure out who is the bad guy here and let's punish them.” See also our article on demonstrative evidence and the opening statement.

intellectual property graphics demonstrative evidence


Complicated Cases Call for Great Demonstrative Evidence

Bill Panagos (of Butzel Long) called this case “extremely difficult” and a “complicated picture of intellectual property.”  He went on to explain that, “juries tend to do what they think is fair or right” and “it depends now on the story that they heard from each of the attorneys -- which one of those attorneys was able to tell the story in a way that the jury understands or believes them more than they understand and believe the other side.”

Even Judge Koh expressly and publicly identified this case as a “coin toss” and urged the parties to settle the case before a verdict.  The Judge went further, “I am worried we might have a seriously confused jury here,” and “I have trouble understanding this, and I have spent a little more time with this than they have,” and finally, “It's so complex, and there are so many pieces here.”

This underscores the importance of telling a convincing and persuasive story in court. Jurors want to reach the right result, so how do you help them do it?

Litigators must be as effective at storytelling as possible at trial and to do so, jurors must be reached on an emotional level. To do this, litigators should test their story and theme with mock jurors in preparation for trial and take time to develop effective trial graphics. With effectivedemonstrative evidence immersive graphics demonstrative evidence, also known as litigation graphics, attorneys can teach and argue from their comfort-zone – by lecturing, but the carefully crafted graphics will provide the jurors what they need to really understand what’s being argued and give them a chance to agree. Most people (remember, jurors are people) are visual learners and do most of their “learning”  by watching television or surfing the internet. In court, litigators must play on this battlefield and with the appropriate weapons.



Using the Right Demonstrative Evidence the Right Way

In a study, attorneys dramatically improved their persuasiveness when “jurors” were immersed in graphics, meaning the attorneys always gave them something to see while presenting an argument.  Immersed jurors were better prepared on the subject matter, felt it was more important, paid more attention, comprehended better, and retained more information. This is your goal as a litigator – to capture the jurors’ attention and coax them onto your side.

Here’s a sample graphic used at trial by Apple:
demonstrative exhibits apple samsung trial presentation consultants 
The obvious goal of this graphic was to tell a visual story showing how Apple’s iPhone design was the pivot point for Samsung’s own mobile phone design in a simple “before and after” format.

I’d say this is a fairly effective graphic. It simplifies a complex issue and makes a dramatic point.


Samsung countered with its own trial graphic, as follows:
demonstratives samsung courtroom presentation consultants 
The purpose of this graphic was to showcase Samsung’s own innovative, but still iPhone-like designs over the years, both preceding Apple’s product release and following it.

This graphic certainly has a lot of information, but it’s not quite as clear and understandable as Apple’s demonstrative evidence above. The jurors’ understanding of this graphic will have depended more on the attorney’s accompanying argument, which is not really the goal of trial graphics.

Here are some more interesting graphics used by Apple’s counsel. This first trial graphic accompanied Apple’s argument as to how Samsung’s user interface infringed Apple’s design patent on icons.
intellectual property graphics consultants apple samsung iconsIt is another effective graphic. It’s clear and fairly convincing on its own, without any explanation.

Apple also used this demonstrative evidence trial graphic below to explain that, while Samsung designed an infringing user interface, there are a variety of other ways of making an icon-based mobile device interface. Apple showed examples of “non-infringing” alternatives that Samsung did not use.
icons apple samsung intellectual property graphics consultantsI’m not so sure about this one.  Sure, there may be differences between these designs and those used in the iPhone or Galaxy devices, but I’m not sure this makes a very convincing argument that Apple’s design is so special.

If the parties hold out for a jury verdict, it will be interesting to see which side told a better story here. If the jury believes influence over an industry is illegal infringement, Apple will win. If the jury believes Apple’s designs are just the basic building blocks or “grammar and language” (so to speak) of mobile device design, Samsung will win.

Ryan Flax is the Managing Director of Litigation Consulting at A2L Consulting. He joined A2L after practicing as a patent litigator who contributed to more than $1 billion in successful outcomes. 

Edit: see post-verdict follow-up article here.

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Ken Lopez founded A2L Consulting in 1995. The firm has since worked with litigators from all major law firms on more than 10,000 cases with over $2 trillion cumulatively at stake.  The A2L team is comprised of psychologists, jury consultants, trial consultants, litigation consultants, attorneys and information designers who provide jury consulting, litigation graphics and trial technology.  Ken Lopez can be reached at lopez@A2LC.com.


Tony Klapper joined A2L Consulting after accumulating 20 years of litigation experience while a partner at both Reed Smith and Kirkland & Ellis. Today, he is the Managing Director of Litigation Consulting and General Counsel for A2L Consulting. Tony has significant litigation experience in products liability, toxic tort, employment, financial services, government contract, insurance, and other commercial disputes.  In those matters, he has almost always been the point person for demonstrative evidence and narrative development on his trial teams. Tony can be reached at klapper@a2lc.com.

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Laurie R. Kuslansky, Ph.D., Managing Director, Trial & Jury Consulting, has conducted over 400 mock trials in more than 1,000 litigation engagements over the past 20 years. Dr. Kuslansky's goal is to provide the highest level of personalized client service possible whether one's need involves a mock trial, witness preparation, jury selection or a mock exercise not involving a jury. Dr. Kuslansky can be reached at kuslansky@A2LC.com.

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