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Apple Wants Samsung to Forfeit Patent Trial as Sanction
Samsung has already been sanctioned four times before in this case

If Apple gets its way it'll win its high-profile patent infringement case against Samsung in San Francisco without there being much of a trial. They'll go directly to the damages.

It wants Samsung punished for attempting to influence a seated jury with a ruling from the bench that "Apple's asserted phone-design patent claims are valid and infringed by Samsung."

"At a minimum," it says "the Court should (i) instruct the jury that Samsung engaged in serious misconduct and that, as a result, the Court has made a finding that Samsung copied the asserted designs and features from Apple products; and (ii) preclude Samsung from further mentioning or proffering any evidence regarding the ‘Sony design exercise' for any purpose.

See, after being told by District Court Judge Lucy Koh on at least three separate occasions including Tuesday that it couldn't argue that Apple pinched elements of its iPhone design from Sony, Samsung that same day e-mailed a link to the blocked exhibits and a snippet from a deposition taken from former Apple designer Shin Nishibori to reporters.

The Nishibori deposition recounted Apple's industrial design chief Jonathan Ive saying to him, "If Sony were to make an iPhone what would it be like?"

Samsung's e-mail said: "The Judge's exclusion of evidence on independent creation meant that even though Apple was allowed to inaccurately argue to the jury that the F700 was an iPhone copy, Samsung was not allowed to tell the jury the full story and show the pre-iPhone design for that and other phones that were in development at Samsung in 2006, before the iPhone. The excluded evidence would have established beyond doubt that Samsung did not copy the iPhone design. Fundamental fairness requires that the jury decide the case based on all the evidence."

Apple, which had submitted into evidence a very iPhone-looking August 2005 iPhone prototype code-named Purple that predated Nishibori's March 2006 design, went ballistic and a reportedly irate Koh ordered Samsung lawyer John Quinn, managing partner of Quinn Emanuel Urquhart & Sullivan LLP, to explain.

He came back Wednesday morning with a five-page declaration saying he authorized the e-mail but the move was "legal" and "ethical," entirely consistent with the Court's statements" that the "workings of litigation must be open to public view" and besides the evidence was already in the public record.

Apple demanded sanctions. In a letter to the judge Apple lawyer William Lee of WilmerHale wrote that "Samsung's multiple references to the jury in its statement make plain its intent that the jurors in our case learn of arguments the court has excluded through the press. This deliberate attempt to influence the trial with inadmissible evidence is both improper and unethical."

In its August 1 rebuttal to Quinn's declaration Apple said that it won't ask for a mistrial because that would only play to Samsung's strategy of delay but Samsung's "escalating misconduct" constituted an open invitation for someone to share the excluded information with the jury - especially since Samsung claimed the jury wasn't seeing all the evidence.

Apple acknowledges the judgment would be a "serious sanction" but Samsung has already been sanctioned four times before in this case and that didn't stop it from its latest extrajudicial mischief.

So far Samsung has been sanctioned for not complying with two discovery orders on its analysis of Apple products, for not producing financial information relevant to Apple's damages claim, for not producing the source code of accused Samsung products and for destroying evidence favorable to Apple.

Nishibori, by the way, is in Hawaii recuperating from some malady and has refused to testify in court despite a subpoena.

The trial, which started Monday with jury selection, is supposed to pick up again Friday.

About Maureen O'Gara
Maureen O'Gara the most read technology reporter for the past 20 years, is the Cloud Computing and Virtualization News Desk editor of SYS-CON Media. She is the publisher of famous "Billygrams" and the editor-in-chief of "Client/Server News" for more than a decade. One of the most respected technology reporters in the business, Maureen can be reached by email at maureen(at)sys-con.com or paperboy(at)g2news.com, and by phone at 516 759-7025. Twitter: @MaureenOGara

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