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back to article Jury will hear Samsung wrongly trashed emails in patent trial

A US court magistrate has ordered that the jury in Apple's patent case against Samsung be told that the Korean firm went on deleting emails after it was clear the lawsuit was going to happen, potentially destroying evidence. In US law, firms are required to hold onto documents that might be relevant to litigation from the first …

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Anonymous Coward

El Reg missing some stunning headlines here...

With all these stories about the apple/samsung case, the reg seems to have missed out on a nugget of gold somehow.

Apple is demanding $2.5billion from samsung (with the possibility of tripling parts of that if the jury found samsung wilfully infringed), but they also told the court what they thought samsung's patents are worth: $0.005 per device. How is that not worth publishing?

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Anonymous Coward

What about

Apple’s more compelling points excerpted from its brief:

* In February 2010, Google told Samsung that Samsung’s “P1” and “P3” tablets (Galaxy Tab and Galaxy Tab 10.1) were “too similar” to the iPad and demanded “distinguishable design vis-à-vis the iPad for the P3.”

* In 2011, Samsung’s own Product Design Group noted that it is “regrettable” that the Galaxy S “looks similar” to older iPhone models.

* As part of a formal, Samsung-sponsored evaluation, famous designers warned Samsung that the Galaxy S “looked like it copied the iPhone too much,” and that “innovation is needed.” The designers explained that the appearance of the Galaxy S “[c]losely resembles the iPhone shape so as to have no distinguishable elements,” and “[a]ll you have to do is cover up the Samsung logo and it’s difficult to find anything different from the iPhone.”

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DJO
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Judge Dread

"The judge said that statistically, there was almost certainly relevant evidence in the emails deleted, so when trial starts at the end of this month, the jury will be advised that Samsung destroyed evidence that is more likely than not favourable to Apple."

Presumption of innocence? This "judge" seems to have prejudged the result of this litigation and I would have thought that statistical probability is not proof beyond reasonable doubt. Samsung should press for a new unbiased judge.

By all means prosecute Samsung for destroying (potential) evidence but they cannot be convicted on the basis of what that evidence might have contained.

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Anonymous Coward

Convicted?

You're being too quick to draw the outcome.

The jury is simply being informed that there may have been more evidence that was deleted. That's quite fair since Samsung should not have deleted it in the first place.

Samsung's lawyers will have their opportunity to explain their reasons.

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Re: Convicted?

Does sound like it was worded to cause prejudice against Samsung unless the judge explained that there were potentially mitigating factors down the line. Actually reads more like an accusation that a statement of fact in the article, at least.

I spose Samsung can argue that later if they want, too.

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Boffin

Re: Judge Dread

Presumption of innocence?

Presumption of innocence is generally applied (in the States, anyway) in criminaltrials, not in civil trials.

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Re: Judge Dread

It would be interesting to know this judges "statistics" background, and have him show his math to illustrate his certainty. In my experience comments like this are usually produced "out the ass" as they say.

Also as Homer S once said "Oh, people can come up with statistics to prove anything, Kent. 14% of people know that."

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Re: Judge Dread

This is the pre-trial Judge, his job is to get everything in order for the trial, from the meaning of certain terms and phrases to what evidence will be presented to working out the trial date. He wont be the trial Judge.

Samsung had every chance to explain why they kept deleting e-mails for over a year but only in Korea while retaining them with their international operations. They couldn't blame the software as they developed it. They couldn't say they didn't understand that they had to retain the e-mails as they got into trouble in the US for doing the exact same thing in another case several years ago. They simply couldn't give a plausible reason for the continued destruction of evidence.

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hjb

There are some interesting details in Samsung's Trial Brief.

On page 4&5, it says

"In order to distract from the weakness of its infringement claims, Apple offers misguided allegations of copying that are refuted by evidence of Samsung‘s independent creation. Prior to the iPhone‘s announcement in January 2007, Samsung was already developing numerous products and models with the same design features that Apple now claims were copied from the iPhone. In the summer of 2006, Samsung began designing its next generation of mobile phones, based on the market trend of ever-increasing screen size. At that time, Samsung‘s designers envisioned a basic design: a simple, rounded rectangular body dominated by a display screen with a single physical button on the face. For example, internal Samsung design presentations from the summer of 2006 showed the following designs Samsung was considering:

Id. One of these designs became the Samsung F700 phone, which was the subject of a Korean design registration application in December 2006, a month before Apple unveiled the iPhone. Tellingly, Apple at first included Samsung‘s F700 in its indiscriminant ―copying allegations, but later withdrew its infringement charges once Samsung‘s prior independent creation left Apple no choice but to concede that its copying accusations against that device were false....

Also during this time period during the Summer and Fall of 2006, Samsung designers envisioned a simple icon interface, with rounded rectangular icons arranged in a grid format, appropriately spaced for the size of the screen and the human hand. As one example, an internal Samsung design presentation dated September 14, 2006 showed the following GUI layouts and adjustable orientations:...

As these documents confirm, Samsung independently developed the allegedly copied design features months before Apple had even announced the iPhone. It did not switch its design direction because of the iPhone. Contrary to Apple‘s cherry-picked ―pre and ―post iPhone choices of Samsung‘s phones, Samsung designed and developed large screen smartphones before the iPhone—as well as bar type phones, sliders, and folder phones. Samsung continued to do so after the iPhone as well"

On page 16, it says

"Unlike Apple, which was not a participant in the mobile communications industry until it released the first iPhone in mid-2007, Samsung began developing mobile communications technology in 1991. Samsung has since invested billions of dollars in developing the backbone of the industry and the wireless standards necessary for smartphones. Between 2005 and 2010 alone, Samsung invested $35 billion in research and development relating to telecommunications technology, with over 20,000 engineers worldwide dedicated to telecommunications research and development.

Apple relied heavily on Samsung‘s technology to enter the telecommunications space, and it continues to use Samsung‘s technology to this day in its iPhone and iPad products. For example, Samsung supplies the flash memory, main memory, and application processor for the iPhone. Samsung also manufactures Apple‘s A5X processor and is the sole supplier of the Retina display used in the new iPad. But Apple also uses patented Samsung technology that it has not paid for. This includes standards-essential technology required for Apple‘s products to interact with products from other manufacturers, and several device features that Samsung developed for use in its products."

We all hear what Apple is saying all over the medias, but not Samsung. Now, take a look at the Samsung's Trial Brief, there are quite interesting details.

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FAIL

The Samsung F700 had a landscape sliding keyboard! It has nothing to do with the iPhone or it's design.

http://reviews.cnet.co.uk/mobile-phones/samsung-f700-review-49294830/

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Go

Read what you linked to.....they say it looks like an iphone and thats what this case is about, the design look of the device not what it can do and if it has a nice hidden keyboard, its the rectagle with round corners...

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Thumb Down

Not this old hat again

Even the Android Community website debunked the idea that the F700 somehow came first:

Here you go: http://androidcommunity.com/who-was-really-first-apple-vs-samsung-story-truly-debunked-20110420/

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Sorry because samsung was the supplier of the materials for apples phones, they new what apple was up too, they were baltently copying as even their own people have said!

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FAIL

Oh how I wish I had your obvious inside knowledge of what Samsung were up to.

It must be nice to be trusted so much that they have given you all the information you need to make such an informed decision.....

By the way, just how many ways can you design a phone or tablet that is not a rectangle to match the shape of the lcd panel, have rounded corners just like all laptop screens as they are better than sharp ones and as few buttons as possible ?

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Anonymous Coward

Two week auto email deletion is a great idea for companies who want to hide such acts.

It's a good job MPs and newspapers don't do this.

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Anonymous Coward

Having worked somewhere that required every email be archived for 5 years, I'd have loved to have a system like that in place instead. As you can imagine, users weren't too happy when they realised their gossip had been recorded and would be (theoretically) available to higher levels for the next half-a-decade. Of course, the fact that work email was supposed to be for work was a point they didn't exactly absorb.

Some businesses do have a quick turn-around on email though. Cynically, yes, it's great if you want to hide certain behaviour, but it's a bit of a blunt tool unless that behaviour is endemic within the company. More likely, like most businesses using such methods, the storage overheads of dealing with users who won't clear their inbox unless they've a gun to their head were considered too high and the clearance automated (though they should have turned it off as soon as they became aware of the litigation).

I've also had the pleasure of working in a location that required all emails remain in your Inbox (or a sub-folder) for 18 months, but enforced a 50MB mailbox limit. That wasn't fun either, you either had to risk not being able to produce further down the line, or put up with mail bouncing because you'd hit your quota. I opted for the latter, having cleared just sufficient space to send an email asking for a bigger quota (with explanation of why) whilst knowing their reply would generate a bounce messsage.

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WTF?

No matter whos in the wrong here....

"Samsung’s 2.4 per cent royalty demand on the entire selling price of Apple’s products is exorbitant and non-FRAND on its face. Based on the average selling price of the iPhone, the royalty that Samsung demands would equal $14.40 per unit… if all holders of declared-essential patents were to take the abusive position Samsung asserts, total royalties on the iPhone would be hundreds of dollars."

So Apple think its exorbitant to ask for $14.40 for a licence without which you device will not work but its ine to ask for $24 for design patents on a rectangle with rounded corners.

WTF ?????

Then they want to add $3.10 for its scrolling API function, and $2.02 apiece for using tap to zoom and navigate, and "overscroll bounce" feature......

This is the most rediculous stance ever from either party.

If Apples $31.14 is fair then Samsung are not asking enough not too much......

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Boffin

Re: No matter whos in the wrong here....

I'm not going to defend the absolute numbers but...

If Apple have an exclusive right to a design or patent they can refuse to license it or charge what they want for it or Samsung can change the product so as not to infringe.

If Samsung has managed to get a patented technology into a global standard they must license it at FRAND rates. Apple cannot work around it while still operating with other equipment based on same standard (although it is quite possible that the standard could have worked around the patent by using an alternative equally good technology). Many big companies like getting their patents into standards because it is a reliable way to get paid even though the per-unit rates are low the numbers can be huge.

If there is a group of competitors in a room setting the terms of business for future products either it is an illegal cartel OR it is a standards setting group. To fall on the legal side of the line they must set the terms of business so as not to be unfair to people and organisations not in the room which is why RAND or FRAND licensing of patents is required of all participants.

The inclusion in a standard changes the patent from 'can charge what you want for but can be worked round' to 'can't be worked around but must be licensed at a reasonable price'.

I don't really see that reasonable price could be a percentage of the total product as there may be thousands of patents that need to be licensed for a modern smartphone (2G, 3G, Wifi, Bluetooth, AAC, H.264 to name just a few essential standards for a modern smartphone). If each patent is even 1% of the total price the product becomes impossible. Also the more valuable the phone and the more it does the less significant each technology or patent is in the overall product but the more you have to pay for it.

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Re: No matter whos in the wrong here....

@Joseph

I agree with what you've said, but the idealist in me see's that it should work a little differently (you've described quite well how it does work though). To me, it's all a matter of impact. Apple's bounce (assuming it's valid) is of little impact even if I license it, so it should be cheap as hell. Samsung's SEP are of high impact, and so I'd expect them to cost more (though I won't settle on a number).

It makes little difference to me as a manufacturer whether I include Apple's bounce or not. I wouldn't expect to pay too much for it, whereas if I want to create a phone, Samsung's are pretty important so I'd expect to pay a little more.

Not that I think either should be asking as much, even in the world we actually operate in. But, it does seem like Apple were given a price and rather than haggling stuck two fingers up and continued without licensing. That's not right, I can't walk into a shop (Bad analogy alert) ask how much a TV is, decide it's too much and walk out with it anyway (and no, patent infringement isn't really theft).

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Re: No matter whos in the wrong here....

And how is being rectangular with rounded corners not an essential part of a phone? I mean yes, you could work around it with oddities like sharp corners or triangular phones, but that's worse than missing out some of the standards that you list (evidently Apple fans have no problem with a phone lacking 3G, after all...)

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Re: No matter whos in the wrong here....

If it makes so little impact and someone is asking for too much money just don't use the feature (past damages will need to be decided by a judge and be fair in some measure - I doubt Apple's full claim will stand). Given there are so many patents and so many are invalid past damages should be limited to a judge assessed amount.

Going forward assuming the patent is valid if Apple charges too much Samsung should just say no thank-you. I don't see the case for someone outside making a relative value assessment for the ongoing business.

Samsung's patents may or may not be pretty important (I haven't looked at them). They are essential to comply with the particular standards that have been chosen by a standardisation body including Samsung. Other options may have been available, possibly even better or without any patent constraints. If another option had been taken in the standardisation the patent may now be completely irrelevant. If Samsung wanted to charge any price it liked for these patents it could have declared that to the standards group and I have no doubt at all that they would have found alternative technologies.

It may be that there are 1,000 patentable technologies within the standard, some will have been patented, some may have expired and others may have been published before being patented. Some may only be relevant in particular modes which may not be widely used but are still required for compliant devices. The value of the standard is not the sum of the patents it is the fact it is a standard (which works with other devices and basestations) and achieves some purpose. Only part of the value of the standard should go the the patent holders, some is needed for the implementer and the actual costs of making the product and with this sort of action Samsung is not just trying to claim all the value of the standard for the patent holders as a whole but for itself. If everyone did this the standard would fail completely as the licenses would cost more than the feature was worth.

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You have to apply Apple's valuation method

Y'see, when it's something that Apple (ahem) "invents" , it's worth more. When someone that isn't Apple invents a thing, it's worth less. It's Applenomics.

Every tablet ever made has had rounded corners, varying degrees of roundness but rounded nonetheless. And scroll bounce? Seriously? How many bounces? How does shit like that get a patent. I 'll tell you how. The US patent office has the US economy at heart and in mind at all times, that's how. They probably look on Google and Android as anti-American.

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Meh

So if Apple paid nothing

Then presumably it's a trial about how much they owe in essence?

Perhaps apple thinks it should pay nothing because it's errr... apple. Am I right remembering that if a FRAND owner makes an offer then the recipient can choose to negotiate normally on the offer or not accept it, and, if not accepted then the license in question moves out of FRAND and into normal licensing negotiation?

Just seem to remember reading that in the past. If true then I should think Samsung can charge WTF they want by now, backdated. Not that any protectionist US court would ever do that, if even applicable.

Did the judge point out that deleted emails may well also be in the interest of Samsung's case, too, like 'RE: FRAND licensing offer... Fuck yourself, we are Apple. Love Steve' as well as 'RE: Tablets... yeah we copied you, so watcha gonna do now?'

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Anonymous Coward

Re: So if Apple paid nothing

If that was true, then I simply acquire a cheap FRAND patent (most of them earn very little, so this shouldn't cost too much). Then I contact apple, and tell them I want $1m per iPhone. There's no way they'll accept that, so they'll refuse.

And now you think it'll become a non-FRAND licensing agreement. In which case, I don't have to license it at all, and I can tell them to remove 3G from all iphones and ipads. Or I can charge whatever I like for a license, and charge them that $1m per phone I originally offered. And the courts will agree with me, because that's actually how regular patents get handled.

Somehow, I think you might be slightly wrong :D

The FRAND rate for a patent is based on the value it had BEFORE it was made part of the standard. That value is normally very low, because there's usually a bunch of alternative methods. Once it's in the standard, you have no choice but to use this exact method, so the patent is suddenly hugely important - which is why the value is locked down.

If Samsung have offered a license at non-FRAND rates (which apple estimates at $0.005 per device) then they've breached the terms of their FRAND agreement, and are possibly trying to commit market abuse (which they're being investigated for already).

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Re: So if Apple paid nothing

If that was true, then I simply acquire a cheap FRAND patent (most of them earn very little, so this shouldn't cost too much). Then I contact apple, and tell them I want $1m per iPhone. There's no way they'll accept that, so they'll refuse.

You're missing an important piece here. If a patent is applicable to a device, the device manufacturer should never refuse to pay a license. They should negotiate the license terms. The correct response to your extortionate plan should be "$1m per device is way too high. Let's negotiate a fair and reasonable license."

At that point, you are obligated to negotiate FRAND terms because Apple agreed that licensing your patent was necessary, and agreed to negotiate terms.

If Samsung is correct, however, Apple essentially said "we don't need your stinking license", which might, if their devices are shown to be infringing, allow Samsung to charge whatever they like.

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Re: So if Apple paid nothing

Apple are required to licence the patent from Samsung, however Samsung are required to make the FRAND patent available at appropriate terms. Negotiation shouldn't be necessary, and they fact that Samsung are playing this card seems to indicate that they are trying to use a FRAND patent to get as much money as possible from a competitor. This isn't the intention of FRAND.

What is telling is that Samsung hasn't brought forward any other examples of phone manufacturers paying 2.4% of device retail price.

Bear in mind that Apple does hold a number of patents that are are used in h.264 and other standards so are familiar in how this cross-licencing of standards patents works.

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Facepalm

Re: So if Apple paid nothing

Samsung are required to offer a FRAND license, Apple don't need to negotiate because the license is the same for everyone the ND part stands for "non discriminatory". That means Samsung can't charge different prices to different parties, hence their is no negotiation.

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"Destroying Evidence"?

Anyone would think this was an inquiry into a criminal investigation, not squabbling claims over the invention of the rectangle.

Maybe Samsung decided to focus on innovation, rather than wasting time training thousands of employees to save endless emails in case of bogus claims[*]. It's sad if the number one smartphone company is going to get dragged down, because employees are forced to change their practices, getting swamped in unnecessary old emails, just because other companies use their money for lawsuits.

Regarding the timescales - so if an individual sends an email to Apple claiming that said person invented the rectangle or whatever, this means Apple has to retain emails from that date, no matter how bogus the claim?

And hang on - if Samsung is disputing patents with Apple, why aren't all relevant Apple devices being banned in the US?

[*] Declared a fact to be bogus, in the UK.

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Anonymous Coward

"if all holders of declared-essential patents were to take the abusive position Samsung asserts, total royalties on the iPhone would be hundreds of dollars"

Surely that's about right for a company which came so late to the smartphone market - Mr Jobs was a happy owner of an IBM Simon [the first touch screen smartphone] in 1994 for instance. Its not a matter of a few months here and there, but decades of pre-existing IP and research.

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