The case is set to go to the jury after a last-minute effort by executives to settle their differences failed to bear fruit. Apple is asking for $2.5 billion in damages for design infringement, while Samsung is asking for $422 million in technology patent infringement.
But it’s not easy. The jury has been given 109 pages that outline the 84 jury instructions in the case. San Jose Mercury News writer Howard Mintz reported that the jury was also given a crash course in patent and trademark law ahead of an expected four hours of closing arguments that could last until 8 p.m. Eastern time.
Here’s a rundown of five instructions for the jury wading through all the information regarding Apple and Samsung:
No upgrading: Jurors will be given devices as evidence in the case, but will have to decline prompts to update the software, PC World reported. According to the report, Judge Lucy Koh told the jury that they may “use them in your deliberations, and may connect to the Internet through the Web browser application, but must not alter or modify the devices in any way.” The report said jurors are also barred from inserting SIM cards into the devices, but may access the Internet through the court’s WiFi network.
Jurors who see the update prompts have to elect to install the software “later” and exit the notification screen. The jury is supposed to evaluate the devices as they were at the time Apple and Samsung allege infringement occurred; updates could cloud that picture.
Determine whether iPads were “distinctive”: Apple has said that Samsung’s tablets “diluted” its trade dress — in other words, that the tablets were so similar that they confused users looking for iPads. As Fortune’s Philip Elmer-DeWitt noted in his post on the complicated instructions, the jury will have to determine first whether Apple had established a distinctive brand with the iPhone and iPad, and then decide whether that happened before or after Samsung started selling its tablets. Finally, the jury has to decide if consumers could be confused about “the sources of Samsung’s goods,” more or less asking whether the look and feel of Samsung goods could lead someone to mistake them for Apple products.
Decide whether Apple was an innovator: Apple’s been accusing Samsung of being a copycat, but Samsung is essentially asking the jury to consider that Apple also has a history of copying. Samsung has argued that Apple’s products weren’t really all that innovative, but simply the next step in the evolution of consumer electronics products. The Korean company has gone to great lengths to tap experts with information on previous touchscreen devices that could be considered ancestors of Apple’s tablets and smartphones.
Weighing experts carefully: Both companies spent a lot of money calling expert witnesses to the stand to help make their case to the jury. Now jurors must decide whether they want to believe any of it. Judge Lucy Koh was clear to point out that they don’t have to if they don’t want to.
As Mintz reported, Koh told the jurors that when it comes to the testimony of those highly paid experts, they can “accept it or reject it.”
Were violations “willful”?: If jurors decide that there were patent infringements, they will also have to decide if they were willful.
In this case, Samsung has dodged a bullet of sorts thanks to a last-minute change to the jury instructions decided this morning. Originally, a magistrate judge ruled that Samsung — but not Apple — had failed to preserve e-mails relating to the case, which could have tipped the scales in Apple’s favor. On Monday, Koh overruled that order and said that both companies were at fault for not preserving evidence.
As a result, All Things Digital’s John Paczkowski wrote, both companies asked Koh to throw the instructions out Tuesday morning, as they more or less canceled each other out.
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