Apple v Samsung: Five experts, five questions

We asked experts on the legal system, patent litigation and the smartphone market what they made of the case

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Roy Futterman: I would tell this jury to start broad before deciding on the details. In our experience watching scores of mock juries deliberate, we typically see jurors work out a lot of the broader underlying issues before they move on to working out the detailed verdict questions. I would advise the jury to have a long discussion about the case as a whole before moving to the individual verdict questions. Mostly though, I would advise the jurors to settle in and take their time. They have a strikingly complex verdict form with 33 questions on which to come to unanimous agreement.

Q3. Are they companies playing with fire by letting such a complex issue get into the hands of a jury? Was it smart to let it go this far?

Bill Panagos: The jury is the most perfect of the many imperfect ways so far devised to ascertain the facts in a matter and render a decision that generally is right, fair and equitable. That being said, once the jury is involved, the decision-making ability of the business people in either party begins to diminish as they progressively lose control over the outcome of the case. Oftentimes, cases are settled during jury deliberations. In a very important matter such as this, complex commercial and business issues intermingle with the patent issue to complicate the matters to be decided by the jury. In high-stakes litigation such as this, the winner will dominate a growing multibillion-dollar market. The loser may find itself with little or nothing to show for its efforts in the case. While there will undoubtedly be appeals from any jury verdict, each party will honestly assess the relative strengths and weaknesses in their respective positions, and may reach a commercial resolution.

Roy Futterman: In our experience with complex patent litigation, we see that when a case like this gets all the way to trial, it is very close and could go either way. If it has come this far, it means that the parties have decided that it could not be settled.

Mark McKenna: I think most people thought it would settle, but Apple has been pretty fiery on record about wanting to destroy its competitors, so I'm not totally surprised that they couldn't reach agreement. I think Samsung's claims would have settled if they were standing alone, because that's just about the amount of money Apple needs to pay. But if they can't settle Apple's claims, then it doesn't make sense for Samsung not to keep its own claims alive. Is it risky to go to a jury? Sure, but sometimes you don't have a choice if you're fundamentally disagreeing.

Q4. This is one of a growing number of patent infringement suits between major tech companies. Does this parade of litigation say more about the U.S. patent process or the high level of competition in the gadget market?

Charles Golvin: I believe it says more about the market itself. We are undergoing a radical shift in computing and these devices frame the future landscape of competition -- not just for devices but for applications, content, services and commerce. There are monumental stakes involved, well beyond the billions in revenue from the sale of the gadgets themselves.A

Mark McKenna: The smartphone wars are an indictment of the patent system generally. There are too many patents, and those patents often have fuzzy and overlapping boundaries. The big companies eventually will find a way to settle most of these claims, likely by engaging in lots of cross-licensing. But the situation is much harder for newer and/or smaller firms who want to get into this space. To do so, you need to have or buy a ton of patents (or at least some really important ones), and you need to be prepared to spend hundreds of millions of dollars on litigation. That's not good for the industry or for consumers. It's really only good for lawyers.

Bill Panagos: Both. The U.S. patent process is set up to reward innovation and risk-taking to encourage "the progress of the useful arts and sciences." As all economies converge into the global economy, the patent process will increasingly become the defining factor in domination of world markets, as well as in leadership in technological endeavors.

Q5. On Tuesday, Apple portrayed this decision as something that could affect innovation in the U.S. while Samsung said it was a use of the law to stifle competition. Is any of that true?

Mark McKenna: You always have to take closing arguments with a grain of salt -- it's performance theater, and the lawyers know that making their client look good, and the other party look bad, is the name of the game. My own view is that it's pretty unlikely that a verdict against Apple negatively impacts innovation. What they're claiming isn't especially innovative, and most of Apple's value is its brand, which isn't affected by this. How much it affects competition if Apple wins is a function of how easily other companies can design around Apple's design without losing function or appeal to consumers. Given how basic the design is to which patent claims rights, I'm inclined to think a judgment in its favor is a much bigger deal and would have a bigger effect on competition.

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 martyn_williams@idg.com

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