Patent attorney Linda Kennedy has seen her fair share of patent trials, though never one at the magnitude of Apple vs. Samsung. To be fair, no one has.
Kennedy, a shareholder at the Detroit-based Butzel Long P.C. law firm, has represented clients dealing in intellectual property cases, copyright law and trade secret litigation for products ranging from industrial polymers to cosmetics.
In a case with billions of dollars at stake, verdict-deciding evidence exclusions, and a jury tasked with filtering complex issues and 109 pages of instructions, we had a few questions for the counselor.
Kennedy was kind enough to breakdown the biggest patent trial in history, telling us why a jury's the best mechanism to decide a fair verdict, who's going to win and why no one stays on top forever.
TechRadar: Is there anything particularly unique about this patent case that makes it stand out?
Linda Kennedy: It's unusual for patent cases to get this much press. That has to do with the fact that it hits where people live - most people have one or the other of the phones [iPhone, Galaxy S, etc.] at issue.
The other thing that's interesting is the evidentiary rulings. Samsung's lawyers would certainly say the exclusion of certain evidence will have an impact on the outcome.
TR: What evidence are you referring to?
LK: There was a suppression of alleged prior art [an iPhone prototype inspired by Sony designs] that was not allowed. Usually excluded evidence is one of pages and pages, so it doesn't seem like the end of the world when it's taken out. But in this case it may be key to the ruling.
TR: This case is full of complex issues and the stakes are high. Plus, the jury's got hundreds of questions to answer and instructions to follow. I wouldn't even know where to start.
LK: Not only would most people not know where to start, they wouldn't even be interested.
All patent cases can be heard by a jury. The issues seem esoteric but they involve people. Juries are very good at assessing who's telling the truth, who's leveling with them and at accessing the credibility of witnesses.
Juries use their common sense, too. The question becomes, 'Does the story that party A is telling me make sense or does party B make sense?'
It really is a jury of peers, even if it seems as if those peers should be PhDs, but a jury of peers is the best way to reach the right result.
TR: How long do you expect it will take to reach a verdict?
LK: That's hard to say. The real trick for the jury will be to sort through the evidence and to figure out factually what happened and to follow the rules that've been laid out for them.
They have to come out with a result and put their emotions to the side. Depending on the group dynamic, they'll probably reach a verdict in the next several days.
TR: Could we expect a verdict sometime next week?
LK: It's interesting because we're coming up on a Friday. Are nine human beings going to sign up for that much time with each other?
It depends on the level of consensus in the group and if there's a certain amount of confusion. If it goes on for several days, then we know there's a level of meaningful descent going on.
The good news for the jurors is that their obligation is almost up. It must be fun in a way. They have to sense they're on to something big and important and are going to want to do what's right.
TR: Who do you think is going to win?
LK: It's hard to say exactly without having seen all the evidence myself, but both parties could win since they're asserting different rights against each other. It's hard to access what exactly will come from this, but we know it will be significant.
TR: What affect will the outcome, no matter what, have on the tech industry?
LK: This case has become so aggressive, the next round of innovators may seek to do a deeper study of what patents are out there before they producing to avoid future lawsuits.
TR: Apple has several lawsuits facing it right now. If they win this case, will there be an attitude of, 'don't mess with Apple?'
LK: Possibly, but nobody stays on top forever. Resources do go a long way, but the one thing about the tech industry is change happens fast and quickly.
We always see this with patents: There's always the best next something on the horizon.
TR: Samsung rested most of its defense on the existence of prior art, saying Apple's designs were the product of the industry's evolution of the devices.
Some evidence, as you said, was excluded that Samsung said would've proved its innocence. Is prior art a common defense in patent cases?
LK: The theme is always there. I've never been in a patent case where invalidity based on prior art wasn't there.
It comes down to how good it is. The argument is always there but what varies is the quality of the evidence.
What I'd be interested in is comparing the quality of what was excluded with the quality of the prior art that Samsung was left with.
TR: Apple's seeking upwards of $2.5B (£1.59B). Is that figure totally bloated or is it in line with other patent case damages?
LK: Patent damages going back about 10 years have been on a fairly consistent climb. They've been running deeper, longer and climbing.
District courts have cut back on more prolific damages and, in this case, it depends on what gets sustained in the court of appeals.
The judge in this case is the gatekeeper and allowed those damage figures in, so they passed [U.S. District judge Lucy Koh's] test.
TR: You said 'appeals court.' Will there be an appeal in this case?
LK: I think there will be because if the parties are willing to wait for a jury verdict, they'll be willing to go to appeals. A verdict in this case also has the potential to balance a settlement onto one party's side, so they are probably willing to spend the money to forward with an appeal and save part of the day.
TR: What's that process going to look like?
LK: I imagine there will be another negotiation. If that fails, the case will move to the federal level, going to the court of appeals for the federal circuit. That case would be in Washington, D.C.
The loser of that appeal may want to seek cert [a judicial review] from the U.S. Supreme Court. Only in recent years are we seeing more patent cases going to the Supreme Court. It's up to the justices then and they only accept cases in very rare circumstances.
TR: Do you see this case having an impact on patent law in general?
LK: What's happening in patent litigation are people buying patents - called patent trolls - who don't make products but assert their patents against companies.
This case where two companies are going after each other is almost old fashioned. It's unfolding in a more traditional form.
However, [President Barack] Obama signed a law in September 2011 that's been rolling out. The [Patent Reform Act] has a number of changes to it, so we're sort of learning as we go.
This is the most significant change to patent law since 1952, so it'll be interesting to see how the landscape changes when it goes into full affect.
TR: As a patent attorney, has the Apple vs. Samsung trial been fun to watch?
LK: Patents to most people are fairly dry and boring, but this case tends to be fairly colorful and fairly interesting. It's been fun to follow with the high quality of lawyering on both sides and a colorful judge who asks a lawyer if he's smoking crack.
What's catching patent attorneys off guard is that this went to trial in the first place.
The business decision makers on both sides decided at some point it didn't behoove them to do business with each other.
Patent litigation is a very expensive way to exercise patent rights. What's got the patent law community aflutter? What the business decision was to go to court?