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Apple v. Samsung: How it was explained to the jury

US Judge Lucy Koh provided jurors with details about the case and its implications

The 10 California jurors who will decide the rights and wrongs in the battle between Apple and Samsung were sworn in late Monday and alongside instructions on how to proceed during the case, the U.S. judge presiding over the case explained to them the basics of the high-profile battle.

So much has been written in the media -- both factual and opinionated -- about the case that it might seem familiar to many, but the jurors have been told they aren't allowed to read press reports, research it or do their own investigations. The jury members had earlier said they hadn't been following the case, so Judge Lucy Koh brought them up to speed.

Here's how the battle between the two companies was explained to the jurors by Koh, of the U.S. District Court for the Northern District of California. (Clicking through the links will take you to the respective sections of the jury instructions document, so you can see the original for yourself.)

Koh began by summarizing the basics of how the case would be run and explaining what is and what isn't evidence, how they should measure the credibility of witnesses, the need to take notes, how the jurors should conduct themselves, and other items that are common to many cases.

She got down to the nitty gritty of the case and provided an overview of the different types of patents at dispute in the case.

"There are two basic types of patents in the United States: utility patents and design patents. In general terms, a "utility patent" protects the way an article is used and works. It also protects a method or process of making or doing something. On the other hand, a "design patent" protects the way an article looks. A design patent protects the ornamental design of an article of manufacture. 'Ornamental design' means the shape of the design and/or the surface decoration on the design."

Though it started differently, the case involves nine utility patents (three Apple and four Samsung) and four design patents (all Apple).

And then it was time to explain the essential elements of the case. So much has been added, excluded, removed and changed in the case through weeks of pretrial arguments that anyone following the case would benefit from reading what Judge Koh wrote to the jurors:

"Apple filed this lawsuit against Samsung, seeking money damages from Samsung for allegedly infringing the '381, '915, '163, D'889, D'087, D'677, and D'305 patents by making, importing, using, selling and/or offering for sale the tablet and smartphone products that Apple argues are covered by claim 19 of the '381 patent, claim 8 of the '915 patent, claim 50 of the '163 patent, and the D'889, D'087, D'677, and D'305 patents. Apple also argues that Samsung's Korean parent, Samsung Electronics Company, actively induced the U.S. Samsung entities, Samsung Electronics America Inc., and Samsung Telecommunications America LLC, to infringe. Apple contends that Samsung's infringement has been willful.

"Samsung denies that it has infringed the claims and patents and argues that, in addition, the claims are invalid. Invalidity is a defense to infringement.

"Samsung has also brought claims against Apple for patent infringement. Samsung seeks money damages from Apple for allegedly infringing the '941, '516, '711, '460, and '893 patents by making, importing, using, selling and/or offering for sale Apple's iPhone, iPad and iPod products that Samsung argues are covered by claims 10 and 15 of the '941 patent, claims 15 and 16 of the '516 patent, claim 9 of the '711 patent, claim 1 of the '460 patent, and claim 10 of the '893 patent.

"Samsung also contends that Apple's infringement has been willful.

"Apple denies that it has infringed the claims asserted by Samsung and argues that the claims asserted by Samsung are invalid, and for the '516 and '941 patents, also unenforceable. Invalidity and unenforceability are defenses to infringement.

"For each party's patent infringement claims against the other, the first issue you will be asked to decide is whether the alleged infringer has infringed the claims of the patent holder's patents and whether those patents are valid. If you decide that any claim of either party's patents has been infringed and is not invalid, you will then need to decide any money damages to be awarded to the patent holder to compensate it for the infringement. You will also need to make a finding as to whether the infringement was willful. If you decide that any infringement was willful, that decision should not affect any damage award you give. I will take willfulness into account later.

"Before you decide whether either party has infringed the other's patents, or whether those patents are invalid, you will need to understand the patent claims. As I mentioned, the patent claims for utility patents are numbered sentences at the end of the patent that describe the boundaries of the patent's protection. The patent claims for design patents are the drawings and descriptions of the drawings. It is my job as judge to explain to you the meaning of any language in the claims that needs interpretation.

"I have already determined the meaning of certain terms of the claims of some of the patents at issue. You will be asked to apply my definitions of these terms in this case. However, my interpretation of the language of the claims should not be taken as an indication that I have a view regarding issues such as infringement and invalidity. Those issues are yours to decide. I will provide you with more detailed instructions on the meaning of the claims before you retire to deliberate your verdict."

Koh's explanation continued to the trade dress part of the case:

"This case also involves disputes relating to trade dress. Apple seeks damages from Samsung for trade dress infringement and trade dress dilution. Samsung denies that its products infringe or dilute Apple's trade dress and contends the trade dress is invalid. To help you understand the evidence that will be presented in this case, I will explain what a trade dress is, and I will give you a summary of the positions of the parties.

"Trade dress is the non-functional physical detail and design of a product, which identifies the product's source and distinguishes it from the products of others. Trade dress is the product's total image and overall appearance, and may include features such as size, shape, color, color combinations, texture, or graphics. In other words, trade dress is the form in which a person presents a product or service to the market, its manner of display.

"A trade dress is non-functional if, taken as a whole, the collection of trade dress elements is not essential to the product's use or purpose or does not affect the total cost or quality of the product even though certain particular elements of the trade dress may be functional. Trade dress concerns the overall visual impression created in the consumer's mind when viewing the non-functional aspects of the product and not from the utilitarian or useful aspects of the product. In considering the impact of these non-functional aspects, which are often a complex combination of many features, you must consider the appearance of features together, rather than separately.

"A person acquires the right to exclude others from using a trade dress by being the first to use it in the marketplace, or by using it before the alleged infringer. The owner of a valid trade dress has the right to prevent others from 'diluting' or 'infringing' it. 'Dilution' refers to reducing the capacity of a famous trade dress to identify and distinguish products or services. 'Infringement' refers to another company's use similar to the owner's trade dress that is likely to cause confusion in the marketplace. Rights in a trade dress are obtained only through commercial use of the trade dress.

"Apple accuses Samsung of diluting Apple's Registered Trade Dress No. 3,470,983. This trade dress relates to the iPhone. Apple also accuses Samsung of diluting two unregistered trade dresses relating to the iPhone. Finally, Apple claims that Samsung has diluted and infringed its unregistered trade dress relating to the iPad.

"For each of Apple's trade dress dilution and infringement claims, the first issue you will have to decide is whether the Apple trade dress is protectable. An asserted trade dress is only protectable if the trade dress as a whole is both distinctive and non-functional.

"For Apple's dilution claims, the next issues you will decide are whether Apple's trade dress was famous before Samsung started selling its accused products, and whether Samsung's accused products are likely to cause dilution of the asserted Apple trade dresses.

"Apple's trade dress infringement claim will require you to resolve different issues. You will need to determine whether Apple's trade dress had acquired distinctiveness before Samsung started selling its accused products, and whether Samsung's accused products are likely to cause confusion about the source of Apple's or Samsung's goods.

"If you decide that any protectable Apple trade dress has been infringed or willfully diluted by Samsung, you will then need to decide the money damages to be awarded to Apple. Samsung denies that it has infringed or diluted any Apple trade dress and argues that each asserted trade dress is not protectable. If a trade dress is not protectable, that is a defense to infringement and dilution.

"I will give you more detailed instructions on all of these issues at the conclusion of the case."

The trial begins on Tuesday and is scheduled to run through most of August. The case number is 11-01846, Apple vs. Samsung, in the U.S. District Court for the Northern District of California.

Martyn Williams covers mobile telecoms, Silicon Valley and general technology breaking news for The IDG News Service. Follow Martyn on Twitter at @martyn_williams. Martyn's e-mail address is

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Mr Anthony Cotton


I have tried in vain to Google, who is paying the jury,and the judge,and who ever else is involved. Not counting of course samsung,and apple.
Is it the taxpayer. Can you tell me this information.

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