I Think Apple found the Smoking Bazooka

Oh snap..!   Google did in fact agree to indemnify Samsung in the original trial against Apple.

A-lonely-gavel

On any given [Sun]day, this might not be a big deal.   However, there are two big problems with this development that had me nearly reeling this morning as I read first the headline and then the article on Apple Insider. Samsung is in a boat load of trouble; and it may be taking Google down with it. BOTH companies may burn on this one.   This is a huge deal for two specific reasons
1.    Samsung KNEW it was Infringing on Apple Patents – Despite anything that it has said over the course of the past few years while the Apple v. Samsung patent trials were under way, based on Samsung’s request for Google to indemnify them (read – foot the bill for the legal fees and direct the path of their legal defense) Samsung ACTIVELY knew that it had been steeling Apple’s intellectual property. If it hadn’t, then it wouldn’t have asked Google to indemnify them.
2.    Samsung Lied…BIG Time – In short (because Apple’s attorney Harold McElhinny really hit this one out of the park, presenting four (4) different exhibits outlining Samsung’s activities to actively hide its request …REQUEST… to Google to indemnify them) – during active testimony in open court, Samsung denied seeking indemnification from any third party (including Google). Here’s where McElhinny hit the grand slam – he presented four examples that clearly shows that Samsung did in fact ACTIVELY pursue indemnification from Google.
That’s not a smoking gun, kids…that’s a smoking bazooka.   There’s not much left of Samsung’s foot.

The final exhibit that McElhinny presented in his examination was,

“…a letter ‘from Allen Lo of Google, Deputy General Counsel Patents and Patent Litigation,’ to Samsung’s JaeHyoung Kim, dated May 21, 2012. The email, titled, ‘Apple litigation alleged patent infringement,’ was described by James Maccoun, [Google’s counsel], as ‘Google’s essentially offering to defend Samsung to the MADA (Mobile Applications Development Agreement) and does offer to defend some — some claims.’ ”

While this may seem a bit “open and shut,” it actually isn’t. There’s a great deal of, “he said, she said” going on with all of this. After the last trial, which Apple won and was ultimately (after reductions and retrials) awarded a judgment of about $890M USD (and not the original $1B+ USD), Samsung outlined what was described as “minor damages” related to two patents it purchased in 2011, after initially being sued by Apple; and doesn’t appear to amount to much.

For example, one patent related to a FaceTime-like video system which could send video over a low bandwidth line, has expired. Apple Insider calls this “start contrast to Apple’s patent offense, which focuses on four feature patents that Samsung meticulously detailed as features it needed in its own products in order to compete against Apple, including Slide to Unlock and Apple Data Detectors.” At this time, Samsung refuses to license the patents on Apple’s terms, hence the latest law suit from Apple seeking $2.0B in damages, royalties and lost profits.   However, that doesn’t clear Apple of anything.   How – and even IF – it’s relevant to these proceedings remains to be seen.

However, being able to produce these four exhibits that clearly contradict Samsung’s earlier testimony, is – in a word – damning. The fact that Samsung knew it had IP issues and then actively sought protection against them from Google in Samsung’s first patent trial against Apple is telling. They knew they were (at least potentially) in trouble.

One big question from all of this is, “how does this effect Google, if at all?”   Will they be drawn into this because of their own desire to indemnify Samsung; or because of the conspiracy to hide the truth from both the Court and from Apple during the last trial? Will they be fined, or be held partially responsible for the damages and judgment that Apple won?   At any rate, that, and if and how this development effects the current trial, remains to be seen.

The biggest question I have after all this is – how will Judge Koh take all of this?   Since Samsung has been caught in a blatant lie, will Judge Koh penalize Samsung in any way?   Will she hold them in Contempt of Court?   She’s shown herself to be intolerant of the shenanigans going on between the two companies in and out of the courtroom. Given that this is pretty “in your face,” I wonder if she will retaliate.   I know many that would want to, at least initially.

At the end of the day, it’s clear that the legal issues between Apple and Samsung – and potentially Google now – are far from over.   If there’s one thing that this particular revelation has shown me, it’s that the trial still has a lot of legs and still has a great many more skeletons buried deep within both company’s respective closets that may yet be revealed.

What do you make of all of this? Did this surprise you as much as it did me? If so, were you more surprised by the actual facts of the situation or by the fact that Samsung got caught in a lie? How do you think it will affect the current trial, if at all?   Will Judge Lucy Koh act on this particular issue, holding Samsung and/ or Google in contempt of court, will she let it slide; or will she penalize one or both of them in a different way?

I’d really like to hear from everyone.   This could create a really cool conversation, with a great deal of speculation and interesting content.   Why don’t you log in and give me your thoughts in the comments section and tell me what you think?   I’d really like hearing your thoughts on all of this.

The roller coaster ride isn’t over yet, but you’re going to have to watch out for pot holes and other bazooka-like remnants as you make your way through it all. This one has the potential to get a bit messier still…

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