Samsung Urges Mistrial Citing Racism in Lawyer’s Remark

Samsung Electronics Co. (005930) accused Apple Inc.’s lawyer of making a prejudiced remark during closing arguments in a retrial over how much the South Korean company owes the iPhone maker for patent infringement and asked the judge to halt the proceedings.

Harold McElhinny, Apple’s attorney, spoke yesterday of his memory as a child of watching television on American-made sets, and how because the manufacturers didn’t protect their intellectual property their products no longer exist. “We all know what happened,” he said at the conclusion of a damages retrial in San Jose, California, that started last week.

Bill Price, Samsung’s lawyer, then asked U.S. District Judge Lucy Koh to invalidate the trial just after she had sent the jury to a separate room to begin deliberations in the case. Price said McElhinny presented “absolutely no evidence” for his claim that U.S. companies were driven out of business. Koh rejected Samsung’s request for a mistrial, and Price told her he would file another request under a different rule.

McElhinny was “appealing to race,” Price told the judge. “I thought we were past that.”

The Apple lawyer told Koh that he used the same argument in her courtroom previously when he argued for a court order to block the sale of Samsung products.

Photographer: Krisztian Bocsi/Bloomberg

A higher-stakes trial between the world’s two top smartphone makers is scheduled for March. That case covers technology in newer smartphones, including Apple Inc.’s iPhone 5 and Samsung Electronics Co.’s Galaxy S III. Close

A higher-stakes trial between the world’s two top smartphone makers is scheduled for... Read More

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Photographer: Krisztian Bocsi/Bloomberg

A higher-stakes trial between the world’s two top smartphone makers is scheduled for March. That case covers technology in newer smartphones, including Apple Inc.’s iPhone 5 and Samsung Electronics Co.’s Galaxy S III.

‘Did Not’

“I did not say a word about race, and I did not say Asian,” McElhinny told Koh yesterday.

Apple, based in Cupertino, California, won a $1.05 billion verdict against Samsung last year in the same court. Koh cut $410.5 million, or 39 percent, of the award in March, citing a miscalculation by the jury. The jury in the current case is deciding how much of the trimmed amount should be reinstated.

Related: Apple Asks Jury to Use Common Sense

A decision on damages will conclude the first U.S. case between the two companies over claims they are copying each other’s features in their global battle for dominance of the smartphone market.

A higher-stakes trial between the world’s two top smartphone makers is scheduled to go before Koh in March. That case covers technology in newer smartphones, including Apple’s iPhone 5 and Samsung’s Galaxy S III.

During the discussion over Samsung’s request for a mistrial, Price referred back to McElhinny’s remark.

‘Same Thing’

“We all know what happened,” Price said, adding, “We all thought the same thing.”

Bill Lee, another lawyer for Apple, defended McElhinny.

“Actually, I’m Asian and I didn’t think the same thing,” Lee told Koh, adding that he understood McElhinny to be illustrating the importance of protecting intellectual property.

Koh concluded the dispute by bringing the jury back so she should could re-read an instruction advising that the panel “must not be influenced by any personal likes or dislikes, opinions, prejudices, or sympathy.”

Earlier yesterday, Lee presented his closing arguments for Apple, telling jurors “common sense” would lead them to conclude Samsung should pay $380 million for infringement of some of the iPhone-maker’s patents.

‘Collective Judgment’

Jurors should apply their “collective judgment” to the companies’ actions to “focus on what they actually did in the real world” and not “what they could’ve done,” Lee said.

While Samsung is “telling you these patents are narrow and insignificant,” historical documents tell the truth, said Lee, who was on Apple’s legal team last year. “Documents don’t lie.”

Price argued that jurors should award Cupertino, California-based Apple $52 million, which he had previously argued was “not a trivial sum.”

“Apple has tried to mischaracterize these patents so they are the iPhone,” Price told the jury yesterday. “These patents are very narrow.”

He said Apple can’t claim infringement simply because a rival’s smartphone is attractive. A company can be allowed to compete “and create something that’s beautiful and sexy,” he argued.

Import Ban

An appeals court in Washington ruled Nov. 18 that Apple can seek a ban on sales of some Samsung products found to infringe patents covering smartphone features, such as multitouch technology, that were at issue in the 2012 trial. The company can’t block Samsung products for infringing patented designs, the U.S. Court of Appeals for the Federal Circuit said in an opinion posted yesterday.

Koh in March found that the original verdict was flawed because jurors miscalculated the period that the infringement occurred for 13 Samsung devices. Last week, Apple’s damages expert argued to the jury of six women and two men that $379.8 million of the award should be reinstated.

In a replay of tactics that won Apple its 2012 verdict, the year’s second-largest in the U.S., Lee again invoked an internal e-mail by J.K. Shin, the head of Samsung’s mobile division, saying that the company was experiencing a “crisis of design” due to competition from the iPhone and the difference between the companies’ phones is like “heaven and earth.”

‘Dozing Off’

The e-mail showed that Samsung lacked confidence in its user interface, which was at issue in its infringement of Apple’s utility patents, Lee said. Samsung engineers were “being told that Samsung was dozing off,” he said, and that “the time has come to change our methods.”

“Let’s make something like the iPhone,” Lee said, citing the e-mail.

The case is Apple Inc. (AAPL) v. Samsung Electronics Co. Ltd., 11-cv-01846, U.S. District Court, Northern District of California (San Jose).

To contact the reporter on this story: Joel Rosenblatt in federal court in San Jose, California, at jrosenblatt@bloomberg.net

To contact the editor responsible for this story: Michael Hytha at mhytha@bloomberg.net

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