The seven-year-long patent infringement battle Apple v. Samsung kicked off its third trial Tuesday morning in San Jose, with opening statements from lawyers on both sides of the seemingly never-ending dispute.

This iteration of the legal fight is limited to determining damages only and is scheduled to end Friday.

After U.S. District Judge Lucy H. Koh of the Northern District of California provided instructions to the jury—jury selection went until 5 p.m. Monday—Wilmer Cutler Pickering Hale & Dorr partner William Lee, who represents Apple Inc., kicked off arguments.

Lee, who has figured prominently in Apple's motions and appeals, is picking up the role of lead trial counsel. Morrison & Foerster partner Harold McElhinny, who once played the leading role for Apple, has retired and partner Rachel Krevans, who also represented the Cupertino, California-based company died last year.

Lee showed the jury a series of Samsung phones released before, shortly after and years after the iPhone's debut in 2007.

“Today, when we think of smartphones, we think of devices that look like the iPhone,” Lee said. “But that's why it's critically important for us to step back in time. Do you remember what cellphones looked like in 2006?”


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Samsung's pre-iPhone devices had keypads and smaller screens, while later models are screen-focused with app icons and no keypad. Lee argued that the iPhone's design is a major part of what made it a top seller, and that Samsung deliberately copied the black screen, rounded corners, bezels and application layout to boost sales.

“It took Apple several years and over $1 billion to develop the iPhone,” Lee told the jury. “Samsung recognized they had a crisis of design and in four months—four months—came up with the infringing phones.”

Apple's team is asking for more than $1 billion for Samsung's infringement on three design patents, the full profit Samsung earned from the sale of infringing phones, and another $5 million for the South Korea-based company's infringement of two utility patents.

While the design patents are the main event, the jury will also award damages for Samsung's infringement of two utility patents related to manipulating documents on a touch screen. The first jury had awarded damages based on those patents and on trade dress for 13 Samsung models, necessitating a recalculation of damages for the utility patent infringement only.

John Quinn, a founding partner of Quinn Emanuel Urquhart & Sullivan who is representing Samsung alongside firm partners William Price and Victoria Maroulis, countered Lee's argument in his opening statements, arguing that Apple should receive the total phone profits.

He said that Samsung should only be required to pay for profits earned due to the part of the phone that infringed Apple patents. Expert Michael Wagner is expected to offer evidence of how much Apple spends on items such as screen glass to help calculate damages.

“Apple's patents aren't applied to the things on the inside of the phone and even some of the [things on the] outside,” Quinn said. He also argued that the phone industry as a whole was moving toward screen-focused phones in 2007, and that the iPhone was not the first or only phone with a prominent screen design.

If Samsung's profit from the infringing phones is calculated by component rather than the product as a whole, Quinn said the company would pay the much lower price of $28,085,061.

On Monday, Apple's team was chastised by Koh for asking potential jury members whether they thought a number near that one was too low, a concern she brought up again on Tuesday morning.

During Quinn's opening statements, Koh asked the jury to leave the room twice. The first request followed an objection from Apple to Quinn's reference to slides showing pre-2010 phones. Shortly after, Koh asked the jury to leave again. She was concerned with Quinn's references to prior verdicts in the case, as she believed she'd prohibited either side from discussing previous rulings.

The original jury in 2012 awarded $1.049 billion for infringement of Apple design and utility patents and for trade dress dilution. The design patents cover a black rectangular front face with rounded corners and a graphical user interface (GUI) featuring a grid of 16 colorful icons. Following a 2013 retrial on damages, the number was revised down to $930 million.

The Federal Circuit threw out $382 million of the verdict that was related to trade dress and Koh entered judgment for $548 million.

But the U.S. Supreme Court upset all that in 2016 by ruling that Apple might not be entitled to all of the profits earned on Samsung's infringing smartphones. The Patent Act awards all profits from sales of any “article of manufacture” that infringes a patented design. The justices ruled that in the case of a multi-component product like a smartphone, the infringing “article of manufacture” could be the entire phone—as Koh and the Federal Circuit had assumed—but it also might be just one or more of its components.

The Supreme Court left it to the Federal Circuit to determine exactly what the infringing “article of manufacture” is on 18 models of Samsung smartphones. The Federal Circuit in turn kicked the question down to Koh, who is putting it to a jury.

Koh will ask jurors to consider four factors in reaching their decision: the scope of the design claimed in Apple's patents; the relative prominence of the design within the product; whether the design is conceptually distinct from the product; and the physical relationship between the patented design and the rest of the product, including whether the designed portion can be physically separated from the product.

The test was originally developed by the Justice Department in its Supreme Court briefing.

Samsung is expected to argue that the article of manufacture is limited to the glass screen that houses each iPhone. The glass is easily separated from the phone and doesn't cost much, Samsung has argued. Apple isn't entitled to any profit from, say, the internet browser, GPS, camera and phone functionality, according to Samsung expert witness Sam Lucente, a former vice president of design at Hewlett-Packard.

As for the GUI, “a single screen depicting 'a grid of 16 colorful icons on a black screen,' as the Supreme Court put it, is not an entire smartphone or even a substantial part of one,” Lucente states in written testimony. “It is one, very specific ornamental design.”

Samsung also wanted to argue that no damages should be awarded for about 1 million of the phones in question because they're cased in white plastic, rather than black. Koh has forbidden that argument on the ground that Samsung didn't raise it in the previous trial or on appeal. “Moreover, in the seven years of this litigation, Samsung has never produced sales data showing the number of white phones that Samsung sold,” Koh ruled last month.

Apple, meanwhile, will argue that the iPhone is “indivisible” from its revolutionary design. Susan Kare, a GUI designer who was part of Apple's Macintosh design team and has since worked for Microsoft and IBM, will testify that the iPhone GUI cannot be separated conceptually from the phone. “Without the graphical user interface one could not operate the product or access any of its other features,” she states in written testimony. It “does not exist apart from, and cannot be separated from, the infringing Samsung phones.”

Koh will let Kare and other Apple experts cite evidence from the first trial of Samsung's deliberate copying of the iPhone design. But she's blocked Apple's argument that the phones should be viewed from the perspective of a “designer of ordinary skill in the art,” saying there's no basis for importing the “person of ordinary skill in the art” to the design context.