FORTUNE — A certain amount of dissembling is part of the art of lawyering. But even FOSS Patents Florian Mueller, in his new role as Apple (AAPL) scold, agrees that Samsung went too far in its opening arguments.
The issue in the first week of the new Apple v. Samsung trial is what Apple meant by the “undisputed fact” in the attached quote, taken from a joint pre-trial statement.
Apple was willing to admit that it didn’t “practice” — or “use” — three claims in three of the five patents it alleges Samsung infringed. It did this, according to a Samsung brief, to avoid opening the door to a challenge of the validity of those patents.
In its openings remarks, Samsung took that admission and ran with it. It told the jury eight times, in eight different ways, that Apple placed so little value of patents ‘959, ‘414 and ‘172 that it didn’t even use them:
“Apple admits that three of the five patent claims that it is suing on were not in that iPhone and have never been in any iPhone since.”
““The way you know that Apple thinks that’s a nuisance, because in the iPhone, they don’t use that [’172] patent, never have. Have never used it. The iPhone does it differently.“
“So in other words, the survey participants are told, ‘you either use Apple’s [’414] patent’ which, again, this is another one, Apple doesn’t use this, it’s not in any iPhone, never has been.”
“But, again, this search capability that, you know, they claim to have a [’959] patent on, it’s not something that they have ever used. It’s never been done on the iPhone.”
“iPhone doesn’t even use four out of these five features.”
“Even though most of these patent claims are not valuable enough for Apple to use itself, it claims that Android uses them and that this causes customers to buy Samsung phones. And if Samsung didn’t have these features, they’d sell more Apple phones even though a customer looking for four of five of these features couldn’t find them in an Apple phone, they don’t use them.“
“So what are the damages that Apple seeks for use of its own particular form of word correction, which it doesn’t even use …?”
“Apple itself doesn’t even use four of the five. They agree as to three. We have to prove to you the fourth, the slide to unlock. You can’t get those features by buying an Apple product. They’re not in a product. They don’t use them.” [Emphasis added.]
The jury may be forgiven, after all that, if it concludes Apple never used any part of the three patents at issue. What Samsung didn’t tell the jury is each of those patents contains not one or two but dozens of claims.
In other words, Apple admitted that it didn’t use one part of each patent. The rest — as far as we know — ARE being used.
Apple wanted permission from Judge Lucy Koh to correct the record. According to several reports, that request has been denied.
LINK: Motion for Permission to Present Evidence That Apple Practices Patent Claims
Below the fold: The three claims that Apple admitted that it does not practice, in context.
U.S. Patent 6,847,959 — Universal interface for retrieval of information in a computer system, a patent that Apple claims is central to universal search.
Claim 25 (out of 49)
25. The computer readable medium of claim 24, wherein the information identifier is applied separately to each heuristic.
[24. A computer readable medium for locating information from a plurality of locations containing program instructions to: receive an information identifier; provide said information identifier to a plurality of heuristics to locate information in the plurality of locations which include the Internet and local storage media; determine at least one candidate item of information based upon the plurality of heuristics; and display a representation of said candidate item of information.]
U.S. Patent 7,761,414 — Synchronous data synchronization amongt devices, or what Apple calls its “background sync” patent.
Claim 20 (out of 32):
20. The storage medium as in claim 11 wherein the synchronization software component is configured to synchronize structured data of a first data class and other synchronization software components are configured to synchronize structured data of other corresponding data classes.
[11. A computer readable storage medium containing executable program instructions which when executed cause a data processing system to perform a method comprising: executing at least one user-level non-synchronization processing thread, wherein the at least one user-level non-synchronization processing thread is provided by a user application which provides a user interface to allow a user to access and edit structured data in a first store associated with a first database; and executing at least one synchronization processing thread concurrently with the executing of the at least one user-level non-synchronization processing thread, wherein the at least one synchronization processing thread is provided by a synchronization software component which is configured to synchronize the structured data from the first database with the structured data from a second database.]
U.S. Patent 8,074,172 -– Method, system and graphical user interface for providing word recommendations, or the “word suggestions” patent.
Claim 18 (out of 38):
18. A graphical user interface on a portable electronic device with a keyboard and a touch screen display, comprising: a first area of the touch screen display that displays a current character string being input by a user with the keyboard; and a second area of the touch screen display separate from the first area that displays the current character string or a portion thereof and a suggested replacement character string for the current character string; wherein; the current character string in the first area is replaced with the suggested replacement character string if the user activates a key on the keyboard associated with a delimiter; the current character string in the first area is replaced with the suggested replacement character string if the user performs a gesture on the suggested replacement character string in the second area; and the current character string in the first area is kept if the user performs a gesture in the second area on the current character string or the portion thereof displayed in the second area.
