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Judge rebukes Apple for invoking nationalist bias but denies Samsung a retrial

Apple's remarks in a patent trial suggested an 'American-versus-non-American theme' to the jury, Judge Koh said

By James Niccolai
February 7, 2014 11:08 PM ET

IDG News Service - A federal judge has denied Samsung's request for a retrial in a patent dispute with Apple, but she also chastised Apple's lawyers for making the Korean company's "foreignness" an issue in closing remarks to the jury.

The order from Judge Lucy Koh late Friday means a damages award against Samsung of $290 million still stands. But she clearly took issue with the way Apple summed up its case to the jury, saying it suggested an "American-versus-non-American theme."

The case at the District Court in San Jose is the one in which Apple was initially awarded just over $1 billion in damages in August 2012. Koh struck down $410 million of the award, partly because the jury hadn't calculated it properly, and ordered a new trial to determine the correct damages.

The new trial ended in November with the $290 million award to Apple, but Samsung asked for another retrial, in part, it argued, because Apple's lawyers had appealed to "racial, ethnic, and national origin prejudice."

It highlighted portions of Apple's closing argument in particular.

"When I was young, I used to watch television on televisions that were manufactured in the United States," an Apple attorney told the jury. "Magnavox, Motorola, RCA. ... They were inventors. They were like the Apple and Google today.

"But they didnt protect their intellectual property," the Apple attorney said. "They couldnt protect their ideas. And you all know the result. There are no American television manufacturers today."

In her order Friday, Koh wrote several times that she found the remarks "troubling."

"Counsels argument clearly suggested an us-versus-them, American-versus-non-American theme to the jury, which could have evoked national origin prejudice," she wrote.

The impact of the remarks is minimized by the "cold transcript," she wrote," which "elides counsels strategic and effective pauses, timed in a way that created silence for listeners to connect the dots and make troubling inferences."

She also noted the "context of the courtroom," in which the seats behind the attorneys were "filled with client representatives with obvious differences in terms of racial and ethnic backgrounds."

Moreover, Koh wrote, the impact of the remarks must be considered in the wider context of whether juries in the U.S. can "fairly adjudicate patent disputes between American companies and foreign companies."

She cited a study which found that in jury trials, the win rates of foreign companies  against domestic infringers (38 percent) are significantly lower than wins by domestic companies  against foreign infringers (82%). In contrast, in cases decided by judges rather than juries, "the patentee win rate is almost identical."

Despite that, Koh concluded the remarks by Apple's attorneys did not warrant another trial. The misconduct did not "permeate the proceedings," she wrote, but was "confined to a few seconds of the closing argument." She also found there was no evidence that the jury had been influenced by the "problematic comments."

Reprinted with permission from IDG.net. Story copyright 2014 International Data Group. All rights reserved.
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