Jury will hear Samsung wrongly trashed emails in patent trial
US judge says auto-delete should have been turned off
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A US court magistrate has ordered that the jury in Apple's patent case against Samsung be told that the Korean firm went on deleting emails after it was clear the lawsuit was going to happen, potentially destroying evidence.
In US law, firms are required to hold onto documents that might be relevant to litigation from the first warning shot - in this case, when Apple sent a letter to Samsung telling the firm it was infringing on fruity patents back in August 2010 - not when the lawsuit actually kicks off - in this case, in April 2011.
Samsung's email system, mySingle, automatically deletes employee missives after two weeks unless they are saved by a staff member. Although the firm advised its workers in 2010 that patent litigation was likely and they should start saving emails, it didn't follow up with staff or give any training until 2011 when the case started.
"In light of its bi-weekly automatic destruction policy, Samsung had a duty to verify whether its employees were actually complying with the detailed instructions Samsung claims it communicated to them," Judge Paul Grewal said in a court filing. "As far as the court can see, Samsung did nothing in this regard."
Even after Samsung started checking up on employees and giving them more detailed instructions, it didn't simply turn off the auto-delete on the mySingle system. The jig was up when employees using the mySingle system, called as key fact witnesses in the case, only provided a few emails or even none, while workers who used Microsoft Outlook instead produced thousands.
"Samsung kept the shredder on long after it should have known about this litigation, and simply trusted its custodial employees to save relevant evidence from it," Grewal said. "The stark difference in production from mySingle and Microsoft Outlook custodians makes clear that this plan fell woefully short of the mark."
The judge said that statistically, there was almost certainly relevant evidence in the emails deleted, so when trial starts at the end of this month, the jury will be advised that Samsung destroyed evidence that is more likely than not favourable to Apple.
Samsung said in an emailed statement to The Register that the same argument had already been rejected by the International Trade Commission, which found that the firm had taken "reasonable and appropriate steps to preserve evidence".
"We intend to appeal Judge Grewal's decision to the trial judge, and if necessary, to the Court of Appeals," the firm said. "Samsung remains committed to complying with all information requests from the court."
With the trial edging closer, Apple and Samsung both filed extensive trial briefs laying out all their arguments against each other.
Cupertino once more insisted that Samsung's royalty demands were far higher than Apple pays to others and more than the South Korean company has ever made anyone else pay.
"Samsung’s royalty demand is inconsistent with its own and other UMTS declared essential patent holders’ licensing practices," Apple said in its brief. "It has never sought or received a 2.4 per cent FRAND royalty from any licensee, and indeed cannot even explain where that number came from.
"Samsung’s 2.4 per cent royalty demand on the entire selling price of Apple’s products is exorbitant and non-FRAND on its face. Based on the average selling price of the iPhone, the royalty that Samsung demands would equal $14.40 per unit… if all holders of declared-essential patents were to take the abusive position Samsung asserts, total royalties on the iPhone would be hundreds of dollars."
But Samsung's brief rejected Apple's arguments, saying that Apple didn't even enter into negotiations for its patents.
"Apple argues that Samsung‘s proposed royalty is not fair and reasonable, but Samsung‘s opening offer to Apple is consistent with the royalty rates other companies charge for use of their standards-essential patents. Moreover, Apple never even made a counteroffer," the firm said.
"Instead, it simply rejected Samsung‘s opening offer, refused to negotiate further and to this day has not paid Samsung a dime for Apple‘s use of Samsung‘s standards-essential technology."
The two firms also made their usual arguments about whether or not Samsung's mobes and fondleslabs are copies of iDevices.
The trial is set to start on 30 July. ®
COMMENTS
There are some interesting details in Samsung's Trial Brief.
On page 4&5, it says
"In order to distract from the weakness of its infringement claims, Apple offers misguided allegations of copying that are refuted by evidence of Samsung‘s independent creation. Prior to the iPhone‘s announcement in January 2007, Samsung was already developing numerous products and models with the same design features that Apple now claims were copied from the iPhone. In the summer of 2006, Samsung began designing its next generation of mobile phones, based on the market trend of ever-increasing screen size. At that time, Samsung‘s designers envisioned a basic design: a simple, rounded rectangular body dominated by a display screen with a single physical button on the face. For example, internal Samsung design presentations from the summer of 2006 showed the following designs Samsung was considering:
Id. One of these designs became the Samsung F700 phone, which was the subject of a Korean design registration application in December 2006, a month before Apple unveiled the iPhone. Tellingly, Apple at first included Samsung‘s F700 in its indiscriminant ―copying allegations, but later withdrew its infringement charges once Samsung‘s prior independent creation left Apple no choice but to concede that its copying accusations against that device were false....
Also during this time period during the Summer and Fall of 2006, Samsung designers envisioned a simple icon interface, with rounded rectangular icons arranged in a grid format, appropriately spaced for the size of the screen and the human hand. As one example, an internal Samsung design presentation dated September 14, 2006 showed the following GUI layouts and adjustable orientations:...
As these documents confirm, Samsung independently developed the allegedly copied design features months before Apple had even announced the iPhone. It did not switch its design direction because of the iPhone. Contrary to Apple‘s cherry-picked ―pre and ―post iPhone choices of Samsung‘s phones, Samsung designed and developed large screen smartphones before the iPhone—as well as bar type phones, sliders, and folder phones. Samsung continued to do so after the iPhone as well"
On page 16, it says
"Unlike Apple, which was not a participant in the mobile communications industry until it released the first iPhone in mid-2007, Samsung began developing mobile communications technology in 1991. Samsung has since invested billions of dollars in developing the backbone of the industry and the wireless standards necessary for smartphones. Between 2005 and 2010 alone, Samsung invested $35 billion in research and development relating to telecommunications technology, with over 20,000 engineers worldwide dedicated to telecommunications research and development.
Apple relied heavily on Samsung‘s technology to enter the telecommunications space, and it continues to use Samsung‘s technology to this day in its iPhone and iPad products. For example, Samsung supplies the flash memory, main memory, and application processor for the iPhone. Samsung also manufactures Apple‘s A5X processor and is the sole supplier of the Retina display used in the new iPad. But Apple also uses patented Samsung technology that it has not paid for. This includes standards-essential technology required for Apple‘s products to interact with products from other manufacturers, and several device features that Samsung developed for use in its products."
We all hear what Apple is saying all over the medias, but not Samsung. Now, take a look at the Samsung's Trial Brief, there are quite interesting details.
No matter whos in the wrong here....
"Samsung’s 2.4 per cent royalty demand on the entire selling price of Apple’s products is exorbitant and non-FRAND on its face. Based on the average selling price of the iPhone, the royalty that Samsung demands would equal $14.40 per unit… if all holders of declared-essential patents were to take the abusive position Samsung asserts, total royalties on the iPhone would be hundreds of dollars."
So Apple think its exorbitant to ask for $14.40 for a licence without which you device will not work but its ine to ask for $24 for design patents on a rectangle with rounded corners.
WTF ?????
Then they want to add $3.10 for its scrolling API function, and $2.02 apiece for using tap to zoom and navigate, and "overscroll bounce" feature......
This is the most rediculous stance ever from either party.
If Apples $31.14 is fair then Samsung are not asking enough not too much......
El Reg missing some stunning headlines here...
With all these stories about the apple/samsung case, the reg seems to have missed out on a nugget of gold somehow.
Apple is demanding $2.5billion from samsung (with the possibility of tripling parts of that if the jury found samsung wilfully infringed), but they also told the court what they thought samsung's patents are worth: $0.005 per device. How is that not worth publishing?
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