By Graham K. Rogers

Opening Gambit:

Patent Wars

In what follows I make brief comments as always, but many of the articles are really quite lengthy and deserve that you click on the links and read them end to end.

With last week's Apple star cast giving evidence at the trial as well as Samsung's attempts load the dice in its favour several times, before and during the trial, the comments of Chris Rawson, who summarises the week, are worth quoting first:

Under normal circumstances, the proceedings of a patent trial would be about as exciting as watching grass grow on TV, picture-in-picture, while paint dries on the main channel. However, Apple versus Samsung has been surprisingly fascinating so far, but less so for the legal wranglings than for the information surfacing during the trial.

His sections about the trial are a useful and quick way in, but of course if you want greater depth, try Foss Patents. One of the themes that keeps appearing is the way Samsung keeps breaking (breaching is the polite term) the rules and we have read about delays in presenting evidence as well as doctored evidence among other things, as well as releasing information to the press that the judge deemed inadmissible.

To keep to the flavour of this, the Samsung defence team took a group of witnesses round the courtroom last week in contravention of the rules and lied to a court assistant about what was being done. The assistant reported it to the judge, Florian Mueller reports, who adds, "But after the first trial week one can't help but wonder why Samsung breaks all sorts of rules that Apple manages to comply with."

With the leak of evidence to the press, Apple leaped and like any good trial lawyers, moved for a dismissal. There was a slim hope that the judge's anger over the leak would swing the balance, but she is clearly in control of what goes in her court room while the trial is running. Kelly Hodgkins reports on how the motion to dismiss was denied, but there may be other sanctions to come. More information on this decision was in an article by Bryan Chaffin on the MacObserver.

Samsung did issue a rebuttal to the Apple request for sanctions Mikey Campbell reports in an updated item, adding at the end that the online materials were removed.

Note that the documents were excluded as Samsung, despite being given plenty of warning, did not produce them for Apple in good time and thus the door was closed.

However that is not all and Daniel Eran Dilger. brings up the series of objections that Apple's lawyers have raised concerning the way the lawyers for the other party have conducted themselves and the trial, including "repeatedly creating evidence that is distorted, obscured or otherwise misleading while also raising false objections to Apple's own evidence." With the article are a number of images which show what Samsung produced as evidence and what they perhaps should have produced:

Samsung had altered the "accused devices" to "remove the screen, which may distract the jury from the asserted design," added graphics "that obscure portions of the accused devices, distracting from the overall impression of the accused designs," used images that "are not to scale or are misleadingly scaled," and "only show partial views of the asserted designs and trade dress."

We presume that the jury will be made aware of this. And more.

But then it hardly matters in some ways as we are aware that the Samsung team are sizing up an appeal already. And that will take another year or so. Apple needs to apply sanctions now and stop using Samsung as a supplier in any way: hit them where it hurts.

One of the stars from Apple to appear was Scott Forestall -- a mini Steve Jobs he has been described as with all the pent-up dynamo anger that is implied in the sobriquet. Daniel Eran Dilger reports on the evidence that Forestall gave which is interesting in terms of insight to the company and the development of the iPhone from the 2004 comments that may have begun development in earnest. In addition to the above, Electronista reports that Forestall was confident there was no reason for Apple to copy Samsung: the team wanted to build something great ... there was no reason to look at anything [Samsung] had done.

In that useful and lengthy Electronista article which is well worth going through, there is an interesting comment attributed to Steve Jobs which puts that last Forestall quote in some context. When examining the the round number pad design he wrote in email, "they really screwed this up." . . .

Before Forestall, however (and after), was Phil Schiller who expressed himself shocked at the copying that had gone on. Electronista reports that Phil trod a careful line between confirming certain facts about the development but declined to release certain information that may well have helped the competition.

What was most interesting was the internal metric that was used for iPhone sales: "each new model should sell as many units as all previous generations combined"; and this is what happened. Schiller also noted the industry doubts and specifically mentioned Ballmer of Microsoft who must cringe every time his dismissal is aired. He also said that while the iPhone was a gamble that worked, the iPad was also a risk as no one else then (or since we believe) has managed to make a success of the form factor. Except Apple of course.

One of the things that Apple did want to keep secret was a customer survey. Apple does surveys? Well, I have answered a number of questionnaires online, so yes they do. But the judge was not swayed by a "trade secret" claim from the lawyers, but did allow time for an appeal, Ina Fried writes. My source for this was MacDaily News.

Apple had a lot of documents from Samsung, although not all they would have liked, and one was a comparison of an iPhone and Galaxy S, Mikey Campbell reports. Apparently changes were made to the Samsung device as a result of the comparison, although Samsung are denying this utterly.

With a lot of useful testimony from some of the Apple personnel appearing, some of whom will appear again, there was a switch just before the weekend started as Apple's last witness took the stand. This was Justin Denison: Chief Strategy Office for Samsung. Apple's lawyers talked him through several documents -- Phillip Elmer-DeWitt reports on Fortune -- when Denison denied Samsung had tried to copy Apple.

The document titles are interesting, especially those that detail what changes need to be made to interfacing. This is something I have noticed even quite recently on a bus, thinking someone was using an iPhone for example, but when I get a little closer (anyone who uses a Bangkok bus would understand that) seeing it was a Samsung.

On this theme, one document that Elmer-DeWitt highlights (on reasons for customer returns of Samsung devices) includes, "The most common pattern is that a customer returns the product which was purchased because the customer thought it was an iPad2 (sic)."

On a similar note, and one that was commented on above, Matthew Panzarino has an item on the trial and this includes the best array of before and after shots of Samsung phone I have seen so far. It includes phones from other handset makers that are not the same, yet function perfectly well. Also featured in the item are icon designs and the way these figure in the trial.

As a sort of commentary to the trial, Rene Ritchie has a long article on the very idea of copying and what it means to a company that spends billions on being unique. What few mention is that the education systems in Asia, with their emphasis on rote learning depend on copying for much student work and as such it is so ingrained into the students' minds that it is amazingly difficult to deal with it.

I have students prepare simple drafts for writing proposals every year and one of the rules is "no outside information" but Thai students think that if they read something -- in Thai or English -- and go away then come back and write it down, that they genuinely "know" that information. My teacher-policeman approach is to ask if they knew before they read the book/article/web-page and tell them that if the answer is, No, then all they have to do is cite the source. Simple really, but so hard to get over.

So if you borrow someone's idea for technology, all you have to do is ask for a licence.

Please see also: Cassandra - Monday Review: It will soon be Friday

Graham K. Rogers teaches at the Faculty of Engineering, Mahidol University in Thailand. He wrote in the Bangkok Post, Database supplement on IT subjects. For the last seven years of Database he wrote a column on Apple and Macs.