Judge rebukes Apple for invoking nationalist bias but denies Samsung a retrial
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IDG News Service – A U.S. judge has denied Samsung’s request for a retrial in a patent dispute with Apple, but she also chastised Apple’s lawyers
for making the Korean firm’s “foreignness” an issue in closing remarks to the jury.
The order from Judge Lucy Koh late Friday means a damages award against Samsung of $ 290 million still stands. But she clearly took issue with the way Apple summed
up its case to the jury, saying it suggested an “American-versus-non-American theme.”
The case at the District Court in San Jose, California, is the one in which Apple was initially awarded just over a billion
dollars in damages in August 2012. Koh struck down $ 410 million of the award, partly because the jury hadn’t calculated it
properly, and ordered a new trial to determine the correct damages.
The new trial ended in November with the $ 290 million award to Apple, but Samsung asked for another retrial, in part, it argued,
because Apple’s lawyers had appealed to “racial, ethnic, and national origin prejudice.”
It highlighted portions of Apple’s closing argument in particular.
“When I was young, I used to watch television on televisions that were manufactured in the United States,” an Apple attorney
told the jury. “Magnavox, Motorola, RCA. … They were inventors. They were like the Apple and Google today.
“But they didnt protect their intellectual property,” the Apple attorney said. “They couldnt protect their ideas. And you
all know the result. There are no American television manufacturers today.”
In her order Friday, Koh wrote several times that she found the remarks “troubling.”
“Counsels argument clearly suggested an us-versus-them, American-versus-non-American theme to the jury, which could have evoked
national origin prejudice,” she wrote.
The impact of the remarks is minimized by the “cold transcript,” she wrote,” which “elides counsels strategic and effective
pauses, timed in a way that created silence for listeners to connect the dots and make troubling inferences.”
She also noted the “context of the courtroom,” in which the seats behind the attorneys were “filled with client representatives
with obvious differences in terms of racial and ethnic backgrounds.”
Moreover, Koh wrote, the impact of the remarks must be considered in the wider context of whether juries in the U.S. can “fairly
adjudicate patent disputes between American companies and foreign companies.”
She cited a study which found that in jury trials, the win rates of foreign firms against domestic infringers (38 percent),
are significantly lower than wins by domestic firms against foreign infringers (82%). In contrast, in cases decided by judges
rather than juries, “the patentee win rate is almost identical.”
Despite that, Koh concluded the remarks by Apple’s attorneys did not warrant another trial. The misconduct did not “permeate
the proceedings,” she wrote, but was “confined to a few seconds of the closing argument.” She also found there was no evidence
that the jury had been influenced by the “problematic comments.”
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