Gadgetory

hey welcome to a very special edition of the virtual one with endless beats that just keep jamming and jamming we're just gonna dance the whole time this is really mean it doesn't always do that I don't believe you Crichton hey everyone has good so this is a very special edition of The Verge cast there's a big trial going on in the world apple vs samsung it is a major i would say it's probably the biggest technology related trial in the past five years maybe for the next ten years and there's a lot to talk about with it there's a lot going on and the past to verge Cass we've had we've talked about it at length but I don't think everybody wants to keep hearing about it every single week for half an hour on the regular verge cast so it turns out you know we have a big staff of people and we have I am joined today by brian bishop who is been reporting with for us live from the courthouse every day the trials going on and we have Matt meharry who is a rock star and he is actually a patent attorney and he's been doing it the coverage for us and with us on the patent stuff for since we've started basically right Matt since the verge first day at lunch yeah I can't hear Matt actually can't hear myself either so you perfectly honest with you now can I hear Matt testy yep there we go so Matt you mean you were like I think one of our very first hires actually yeah it came on the first day of November first yeah yeah so anyway so I figured since we have Brian there we've got Matt and I just like to spew my own opinion without any recourse to fact or reason we should talk about the trial we're going to be doing this every week trials manage another month I want to say hi Brian yeah right now is scheduled through the fourth of September yeah so about another month the trial head of us there's a lot going on each week and I I know there's a big appetite for in-depth analysis of the trial but again I think it's best of both worlds for us for the three of us to be able to break it down in depth every week and then we can kind of do highlights in a regular verge cast and that way we want to annoy the people who do not care about patent lawsuits so let's go right into it this I think was the past two days have been pretty dramatic in the trial Brian you want to kind of take us through what's happened so far and what happened in past couple days yeah definitely I mean last time we spoke I believe was uh was on Thursday Friday we had a bunch of witnesses from apple and we're still in the Apple phase where Apple is calling up all their witnesses so friday we saw scott forstall we saw phil schiller we saw a couple expert witnesses yesterday we saw Susan care who was a an icon designer that worked on the original like mac OS and had done work for facebook and microsoft and they're also a bunch of you no more crazy objections and accusations from Samsung and you know judge lucy koh getting really really angry yet again which seems to be part of the circus of the whole thing um so I you know friday was really cool because we with Schiller and forestall we got some looks you know and how the iphone was created we saw some of that with christopher stringer earlier in the week but there was some more specific stuff with those two guys Schiller was talking more about the marketing aspect of it you know just how we knock from was introduced how they didn't do a lot of marketing they slowly ramped it up with that Academy Awards I don't know if you remember they had you know if everybody experience the famous people making calls yeah exactly and it's talking about you know like what the reaction had been and he real Apple does do his team does do some customer surveys in terms of you know talking to people that have bought up with products you know Steve Jobs has said famously we don't go in till you know ask customers what they want turns out they do ask Apple customers what they think about the products employment but I thinks that for their soul I mean the distinction there is yeah i think that they don't say what should we make next they say well we sold you this what what about it is good what about it is bad which i think every kia exactly i mean that's actually i think one of the main things that we're learning about in this trial is how all these companies run and they mean they all pay attention to each other they they in the way they generally market themselves and the way they generally talk to the press about it you know they pretend that you know Samsung pretends apple doesn't exist Apple pretend Samson doesn't exist pretty much everybody pretends HTC doesn't exist which is sick burn but the reality is al pay a lot of attention to the other products in the market to the other companies what they're doing the directions of the market and there's a lot of that coming out and I think one of the really interesting things is just how deeply apple pays attention to its competitors because they run around insisting that they just make the products for themselves you know they don't care what everybody else is doing they want to solve problems that you know they themselves you know the Apple employees and executives once solved and it turns out that you know who is it was Eddy Cue was using a galaxy tab and he's like there's a market for seven inch device to keep telling Steve Jobs we have to make one because i'm using a galaxy tab they have a there's a conference room at apple with the android war room is that what they called it brian and where they just pay attention to how android phone makers market their products and that you know they're responsive to it and i think we're seeing a lot of that come out but it's balanced i think and this is what happened yesterday and what apple's really been pushing samsung on with how deeply samsung paid attention to the specific iphone and how they should change their products or tweak their products to be more or less like the iphone yeah and this has been kind of crazy because there were a number of documents that came out you know internal samson documents talking about you know what the company's take on the iphone was they called you know Samsung's own products when compared to the iphone they said there was a crisis in design one quote was a you know it's the difference between heaven and earth when you compare the usability of the iphone vs samsung products at the time and was interesting one of the witnesses that Apple called was a a marketing officer for samsung telecommunications of america and he basically said you know that was just hyperbole don't pay attention that that's just us like you know working the ranks up and get everybody really excited as they can go and work harder but it's hard to really believe it cuz you know the stockmen that came out yesterday in its entirety we'd seen clips of it before where's basically Samsung comparing at the time the galaxy s before had been released side by side with the iphone there's like a hundred and thirty-two pages talking about you know getting everything yeah icon design like the way like the keyboard overlaps you're looking at mail like incredible my new shake every feet and you know in the obeah yeah it's in it's pretty insane as it goes far beyond just saying I'm going to see how they're doing stuff they were looking directly at how the iphone did stuff better than their phones and stuff they could do to make it better and a lot of times what they suggested to improve upon were things that you know we're adopting iphone functionality so yep Matt imac look I think you I'm gonna ask you what you're about to say uh so you were you sent an email today to me and Brian saying this goes way more this isn't really related to the patent stuff but this goes way more to the trade dress stuff can you kind of explain what you mean by that yeah and after that I'd like to see what I'd like to learn a little bit how like how that came into evidence because it's crazy broad covers things that have nothing to do with the case really a lot of the features and none were covered in the patents I don't think I don't even think it talks about does it talk about the scroll back every no fit now has I things Barisan in there I mean it's really like I mean I wasn't even able to read all of it it's it's so nice kimpton yeah it's insane just the level of detail that they that they went into to compare each feature and and normally when you have a case like this you'll you'll go into it and this kind of evidence doesn't come in in this big bulk you'll have a couple features where you try to show copying and 44 if it was just the utility patents that were play in this case you'd have you know three features and those features if they're not covered in those documents don't come in but because they have the trade dress claim as part of this case which is going to more the look and feel in the overall you know thing that makes iOS iOS they tend to they have this broad they have much the green light is just insane down the amount of information are allowed to get in because of just the nature of their claims and I think this a pizza and it's great because it paints the picture that they want it's great for them I'm not saying it's great it's great for Apple because this is information they need to get in for their narrative on copying and to prove up their their their trade Forex dress claims in general because copying such a huge part of it so let's I actually want to talk about crate redress just a little bit before we get into sort of the nitty-gritty of what actually has been happening the trial and I think this is one of the biggest points that is being misunderstood about this trial versus apple vs motorola or apple vs HTC or the inevitable Apple versus Google which I still believe is coming all the other cases in the world has been patent cases and pretty much utility patent cases right Matt there they're about software patents they're about the scroll back feature on the iphone they're about you know scaling and rotation like isn't there there's one that's scrolling where if you you lock in a XY axis it doesn't panted left and right very nitty-gritty software features yeah design patents are tough I mean they're Darrell to be easy to get but they're they're narrow so I'm you have to almost be a direct copy in order to assert it and that's why they've been able to do that especially with like the first line of galaxy s phones in a galaxy tab but what I'm saying is I think the figure claim Apple's bigger claim in this lawsuit has always been trade dress it's always been you made a bunch of phones and you copied the are look and feel and you sold them to people knowing with a deliberate intent to mislead them in the marketplace in that I think that's fundamentally more important than the patent stuff I think if Apple was forced to choose I think they would stick with the trade dress claims and throw out the patent claims obviously they have the whole set of stuff so they don't have to choose but i think the trade dress stuff is broader and it is actually more meaningful to Apple in the marketplace I think that's why the hurry and the joy right man that's why they had Phil Schiller talking about how they marketed the iphone how they invested in the brand because that's basically the argument is it's a it's a consumer confusion argument it's we invested money in letting people know what the iphone was letting people know that the ipad was letting people know I OS was and now Samsung is coming along and deliberately trying to free ride on our investment into what these things look like how they're marketed what they appear like in stores I don't know mean Brian it seems like Schiller he made that argument pretty well man on cross-examination Samsung kind of attacked him a little bit i mean how'd that go I mean he was good overall he was human very close to the party line like you know that we've seen all the Apple witnesses kind of say like the Apple employee rather witnesses you know about creating beautiful objects it was interesting they asked me to what his reaction was when he saw the galaxy tab and he could just basically said you know I thought they were going to copy our entire product line you know and they've tried to go in like hammer everybody about you know this notion of confusion and dilution and is it really reasonable to think that you know rigger consumers would go and be confused between the two devices when you you know when you see like a startup screen for example you know on a tab when you start it up that's been like one thing that Sam's like attorneys have done like I think three times now you know basically kind of like a great way of theatrics they put me of an iphone or you know a samsung phone or a tab underneath you know the overhead projector and basically you know turn it up and say like hey do you think he would really be confused if they saw this and really think this was an iPad or an iPhone but Schiller held up pretty good all apples witnesses have held up pretty good actually except for an expert witness they had named Peter bressler's who got hammered and started to falter a bit on Monday wait wait he got hammered by the attorney or he got like wasted on the stand that'd be amazing what it is like it what I can't do very amazing yeah we like water picture of scotch yeah yeah wait so what happened if I actually I think that one's really really interesting because that seems to be Samsung's strategy that is from my perspective that is working very well is when they dragged the experts down into the muck and they say here the millimeter difference is I mean hows that's going what's our strategy there um you know basically you had like these broad you know emotional arguments about copying and the big picture stuff that Apple's making and they are just diving down to these really granular granular levels you know you know basically saying like is this you know there's like the radial measurement of the iphone is you know is 13 millimeters here and in this other phone it's like 10 millimeters and that's not exactly the same is it and kind of drilling down these really really my new differences we sought with Susan kare yester day about the about the differences in the the icons like really really my new differences when in her example she was talking about the overall visual and impression and it's hard to see how it's playing with the jury but the longer they do that and the longer they drag it out you know that just sticks in the forefront of your mind and like it's hard to go and say yes this overall impression is X and that's terrible when Samsung can point to like you know ten differences basically you know amongst the set of icons or amongst the design or things like that one thing with breasts so that was really really funny he was showing the patent for the ipad which you know according to the the design language of the illustrations basically shows that the back of the ipad has a reflective surface that's like the 0 35 actually not the only 35 patent the patent was derived from the 0 35 prototype and basically they brought out the galaxy tab 10.1 and they said well look at the back of this device you know it has a matte finish and they brought it up to bressler and they were saying you know can you see yourself you know in the back he's like oh it's it's reflected you can reflect light off of it like can you see your reflection sir like really hammering ho it's it's not a reflective service you know which is kind of like part of what stringer to point it out and you know when it's in the illustration for the patent and we'll eventually I respect to those eyes well guide that like you said it goes back to Neela original pointed if they if they were more involved in the trade dress claims they this new honest the getting down in the weeds by Samsung is a lot less important it's it's crucial for the for the design patents that Samsung do that because that's really how they distinguish themselves over what are narrow patents and I think it's still a mistake I think two mistakes that Apple's made in this case is they didn't they didn't narrow it down enough they should have got rid of they have a design pad in the case on the icons which is so narrow and that's what Samsung was focusing on was although we don't have this Nikon all right kind of different color you know has a different shape on this part of it those are all important things in it gets lost but your back and slides Apple really put the me a zoo m9 the m8 that is amazing I didn't see that so if you don't know where we've on the screen we've got the trial evidence or August seventh on an apple what the its alternative designs for home screen we've got the blackberry torch to nokia n9 which is me go and then meizu m8 and what's hilarious to me about that is the amazing m8 is one of the most outrageous iphone curves i think ever mega maze you've started their company building hilarious curse of the iphone hilarious clones of the iphone so it's pretty I mean having apple throw up what is it like almost admittedly an iphone clone to show that samsung could have done something else it's pretty ballsy it's that's remarkable to me sorry I interrupted you my god no no it's so I guess my point is that the if you look at some of the claims that still exist Apple's allowed samsung to take on this tactic of getting into the weeds and discrediting some of the experts but I think they could have done a better job of preparing their case because they had enough there you don't have to go in with everything you have you go in with your best and do a trial like this knowing that you have limited time and you have a jury that's going to want to kill themselves after about four weeks of this so you really I think in some ways they narrowed it down some pretty key elements and it needed to keep some design patents in and maybe a utility patent or two but you're right they really should have focused more on the trade breast and I think they're trying to but getting lost with their design patents in there they have designed pad on the icon which is ridiculous and I think in the end they they're really either gonna have to kind of change focus and maybe now it's just the big picture stuff so we're not really getting a feel for the entirety of their case but I'd like to hear from Brian just how that's working because I heard a lot of things about the testimony it's related to the icons and I'm confused by how how it's being dealt with by by Apple and Samsung and how something like that document that came in yesterday how that even got in and what the fight was or how the fight will has turned out there was fought over in general to get it in its yeah it's interesting we've only seen a couple slides of that in court some came in last week basically comparing the kahn design and then a you know a couple more came in yesterday I came in with the Susan kare testimony but that and thing and in its entirety hasn't been discussed it's looking a lot of this you know evidence that we're actually seeing nila you mentioned like the comparison with the mizu phone the only compares me actually brought into court as far as alternative design was the blackberry torch so some of the stuff is probably you know going with the jurors when they get you know when they're deliberating but it hasn't been introduced you know hasn't been shown and slides in court yet um but that whole document like that's part of the the 132 page dr. Singh that we've seen from the very beginning it may have even been in like the opening presentation I can't recall but we've seen bits and pieces of that from the very beginning of the the thing but we didn't have an idea that was like that massive and it constituted that many comparisons so they do seem to be picking and choosing their battles and Neil which one of those they're going to represent to make a most effective argument but in terms of traitorous overall it's my impression that the tray dress argument is getting diluted in the courtroom because they can be really specific with some of these are the design patents trade degress seems a bit nebulous also you know they had an expert you know yesterday Tuesday talking about the notion of dilution and even that was kind of you know nebulous don't feel like I'm making a really strong argument that connects there and you know these are hard things to convey to a jury like Apple has been really good at making an overall emotional argument and there's a lot of evidence that supports that but getting down to the nitty-gritty it's it's hard to sell people I mean it truly is and you're seeing it watching a day to day how these people react is just a lot of you know my new show that it's it's hard for people to latch on to and its really easy for samsung to go and like you know pull up a couple of things you know and make its you know feel like the overall pictures and you can be dismissed so actually let's talk about the people a little bit Brian and how what's the jury like you know it's a you know there was interesting you know selection process we talked about it last week you know people from all walks of life people that work in different industries there are people that you know and the jury pool that were and you're like engineers that had patents yeah you know from the most part they are very very engaged and they seem to be very very with it and interested we did all the Google Oracle stuff people start checking out because the patent stuff you know an API stuff was so granular and so this hard to follow here you know Apple is doing a good job of keeping it you know big picture enough so I think people are really really engaging people for their taking notes they're really really they seem to be present in the courtroom and you can kind of see that shift in body language when people start checking out and for the most part they are still into it thus far on their den 29 jurors now because one had to go and leave because of hardship issues yeah didn't she like from most crying right because her job and let her leave or something yeah exactly um but everybody they're still there nobody else is left yet so that's good I'm like a lot of Nexus 7 I gotta go um exactly what's the judge saying to them about looking at the news I mean this is big news right it's it's all it's on the front page of CNN um yeah every every time we break every time they you know the end the day she always says to them you know don't discuss it amongst each other don't watch the news cuz there was that whole thing you know last week with Quinn where he leaked the stuff to you know to the press and he or she questioned each jury one by one to make sure they hadn't seen any news articles about it so she's very very aware that that's you know happening that that coverage is out there that is getting so much attention and like I said like you know three or four times a day whenever there's any sort of break she has this whole little routine that she tells the jury do you know to not read stuff don't discuss keep an open mind um yeah so she's been on top of it and run to that and then so i guess the flip side of that is what are the lawyers like because it seems like the lawyers are both very smooth and not able to get away with a lot of theatrics because of the judge right and that's just a sense of getting what's going on for me no no it's it's totally true like I mean we haven't seen a lot of John Quinn Samsung I want to Samsung's attorneys since all that stuff went down last week we've seen a lot of Charles their joven you know talking to witnesses Michael Jacobs who also tried in the other case for Oracle has been questioning a couple people this week you know and they're all fairly together there's a certain amount of frustration on the part of Samsung just because there are just lots of things they're asking for that they're not getting and the reasonable they're not getting for a lot of them these are like discovery issues things that weren't just closed earlier you know things of that nature so it's not like she's going out of her way to hammer them or there's just lots of things that are asking for every day that they get hammered for when we saw it just you know earlier this week were they basically accused Apple of tampering with the evidence of one of the phones make it look more like the icons on the iphone you know it was a joint exhibit for the it was the epic touch 4g i believe and it may seem like you know it's so good but basically said like you know we think they tamper with it here we've taken our own picture that shows how it really is out of the box yeah I'm making this big deal because they said they took a picture on Monday night shooting on sunday night the picture was dated Monday had the clock and date on there they said oh it has the google search box on it out of the box the picture didn't have it and co's just getting pissed like she just doesn't want to go and deal with any kind of crap and so anything like that that looks bad that looks like they're trying to pull a fast one she's just shutting it down and it's happening on both sides it's not just on samsung but does feel like there's more frustration on Sam set for more so therefore they are getting less just buying of the law of averages well Matt so let me ask you there's a lot of there's a drumbeat of judge Koh you know our readers say it all the time that she doesn't like Samsung is this Samsung I mean to me it seems like there's a few things going on one it seems like Samsung decided to change its narrative and its defense sort of at the last minute and they change tactics and how they were going to defend the try on how they're going to prosecute their case and so there it's thick they're having a difficult time trying to execute that change because I have to ask her a lot of stuff that she's not giving them then there's the Samsung keeps on doing crazy stuff that the judge doesn't like like sending out a press release of evidence that was excluded all that sort of thing and then there's just that you get the sense that she doesn't want to deal with anything period when Samsung knows it and they're building a case for an appeal so Matt what's your take on like how those three things are kind of playing out i mean it's samsung just going for an appeal are they or they just trying to change tactics and kind of failing now i think it change tactics that you know the big issue for samsung and the reason i think they keep kind of pounding on these issues am really going back to the judge over and over again to try to get some of these issues resolved it's because they're not going into this trial I mean technically they're a better counter plaintiff but they're on the defensive end they don't have the kind of smoking gun stuff against Apple that Apple has against Samsung you know when you look at things like that evidence we saw yesterday that's whether they talk about in trial or not if the jury sees it and the during deliberation it's going to have an impact and there's things like that and that one may not have been fought over but I think just from the beginning they've been more on the defensive but I do agree that part of us because throughout discovering and right up until the beginning a trial they really just didn't have cohesive plan together and when you change it up at last minute like that you know good judge isn't gonna allow it to happen for many reasons I don't think she's it all been I think theatrics like this occur in every trial even small trials tit for tat you know you accused us of destroying documents so we're gonna accuse you that's nothing new I just think the magnitude of the case in the drama that surrounds it has just amplified everything to the point where co is just she's done with it yeah she's uh she's she's a she she wants to get through the trial and I think she there's probably sort of enjoyment in that for her but all this this sideshow stuff is his outer last nerve so I I don't really I don't what I'd look at what she's doing I don't see anything abnormal from what you normally see from a judge it's just there's so much of it because so much is happening every day that that it gets amplified so let's talk a little bit about what's gonna what might happen there's one more day of the trial right Wednesday rep right not wednesday friday right price writing this weekend what's happening on friday but what's what's going to happen then there's a couple more expert witnesses for apple coming in there's nobody you know nobody big-name you're going to be like oh that person you know like we've seen the last few days but it feels like there's gonna be no methodically going through their case with their expert witnesses and there's not a whole lot of people left you know on there rolling witness list and we put they only haven't won to say about five or six people left and you know and there's not a lot of time that they can go and really use now they know they have everybody's limited to 25 hours I don't have the counts right in front of me but you know but apples you know been using a bit of it there's a there's about four or five people left on their witness list so they're going to be wrapping up you know probably like it you know you know next week is going to be a five-day week where it's all been three day weeks up till now so they're in a rep of their case probably by mid you know mid next week that's just crazy I mean if you think about it and we wrote it up and we did our first kind of preliminary or a preview pieces on this the case itself is Apple's case alone is unimaginable it with regard to the the amount of proof I mean that the narratives are great and it's what makes it interesting to us and it's what kind of keeps a jury involved but if you don't prove up your case with respect to every piece of IP every pad and every trade dress in the case with respect to every Q's product you're really kind of leaving the door wide open for for a big loss you know at the end of that deliberate got a many phones that's the thing did this case should not samsung you mean Samsung and do it out there doing great job of putting these phones out there but for Apple for them to be having any conversation at all in this case about the galaxy ace which has been put out or the droid charge or whatever like those are the wrong phones to put in front of the jury you need like Babel wants to make this argument that Samsung copied their they're protected rectangle they needed to focus on I would say the galaxy s variants I don't think any of it is Samsung's other phones and what they did with TouchWiz a samsung received in us enough punishment in the world for putting out the Droid Charge like it that is my fundamental belief right it was a bad phone people it it's not they accomplished anything with it what they what they really accomplished something within the galaxy ace and all these 25 phones right Matt there it was it's around there right yeah it's some ridiculous number of phones but the phone that's important is the galaxy s and the galaxy s2 because those are the phones that sell the most that make Samsung the most money and quite frankly represent the biggest threat to the iphone and so Apple like made this huge mistake this absolutely huge mistake by adding in all of these other crappy Samsung phones and you know some of them might are different the Droid Charge looks appreciably different than the iphone TouchWiz doesn't but what battle are you winning by putting that in front of the jury saying compare the icons and I you know I I think that speaks to apples hubris and arrogance a little bit where they're saying we really do we really do believe that this stuff this look and feel of the iphone is ours and maybe that's not so true when you look at just the software on a piece of hardware that looks different and I think that for the jury pulling all that apart and deciding it on this phone the galaxy can we pull up a picture of the galaxy ace galaxy ace really looks like no I mean it's such a I mean it's a low-end samsung phone it looks like a low-end samsung phone nobody no human being looks at a galaxy ace and says oh that's an iphone i think a lot of people out of looked at a galaxy s or and I I tell the story a lot I think a lot of people looked at the the fascinate on verizon in particular and said that's as close to an iphone or verizon said do a lot of customers you don't want a particularly to women customers they said you don't want to draw it because we market this is a robot that will murder you we don't have the iphone but we have we have we have the fascinate and they saw the fascinate i mean if you look at the galaxy ace i mean this is just like it's just a phone like it has kind of nothing to do with any phone design ever made like it just looks like a thing and to me it's talking about this phone that meant nothing to anyone ever where they should be talking about the phone that you know apples narrative gets stronger if they say samson put out this flagship phone i took this huge amount of market share from acid diluted are you know our branding and it's just it's a cultural phenomenon unto itself and they did it by stealing from us that's great saying they made their crappy phones look like ours is samsung should spend all day talking about that because who cares i think that that to me is the story of this trial it's you get you know i think there's a certain amount of let me put this a different way you know pawn came out with the pre you know there was a lot of elements of the pre that people thought apples gonna sue them over it and they never nothing ever happened why didn't anything ever happen because pre was never a competitive threat to the iphone samsung some of their products are so may that conversation should happen but a lot of their products aren't you know apple doesn't compete in a lot of these spaces I think the epic 4g isn't added issue that has a slider keyboard yes um apples naughty those are all in the case because of the OS utility pads I mean that's the dilemma Apple has is they're trying to they don't want to have the suit focus only on the look and feel they want they want to have these nuanced utility patents in there that they you know I I don't know if that's a that's a balance between the attorneys that represent apple and Apple's own level of confidence in the you know some of these iOS features or if it's just that somebody's done a bad job of kind of knowing this case down but I don't think they've ever been willing to just go after just a design in the look ya know if I wanted to keep those utilities and if there are people on the chat telling you to the galaxy s was popular in Europe I'm not disputing that that's great i'm glad cheap phones are popular on the world samsung is an excellent job of filling that market this is not about that this is about the this trial and trying to prove to nine people on a jury that some phones copy some out some very specific elements from another phone and you can't do that when you when you literally broaden the conversation to 25 devices and i think ultimately the jury is going to get I mean Brian have they gotten through this are they are they doing representative groups of the phones or they do they just get all the individual phones if they're doing all the individual phones but I mean speaking your plan before that that strategy that Apple's taking is already you're seeing you're seeing both Herthum and you're seeing like why I device specific strategy but you know works better we talked about them you know showing a samsung attorney showing the startup sequence for different devices hey the phone they used was the droid charge because it comes up and it says droid and like it immediately you go there's no way he could go and compare that that's that hurts Apple right yeah but Apple with you know with a doctor care they were very very careful to go and compare the iphone icons and that those you know Dawkins we saw yesterday about icon design with the fascinate because that is a really compelling case because you see like what the preliminary icons for the S word then you see the fascinate variant and how that's so similar so like you kind of like in you know in two different examples it's really really clear how much a one to one device comparison helps them and that's the problem with apples case it mean that's that's where it hurts them the most because if they were focusing on trade dress it maybe even design patents not the other things they could focus more attention on defending against that because really actual confusion actually comparing the boot up sequence and things like that for the two phones is only one factor in determining whether or not there's trade dress infringement or delusion so but but they kind of have to skim over those things they don't have the time or the resources within that limited trial period to actually focus on what matters and so they get kind of I don't know you can tell us Brian whether or not they did a decent job of rebutting that but my guess is they really couldn't it's hard because you know you have somebody say you know our consumers actually gonna be confused and to be fair you know most people when they're like learning about a device you know they go to bestbuy you're not you know desolee gonna be turning it on right you're not gonna start going to see that startup sequence that's not guaranteed by any means but it's a compelling argument to a jury you know an apple you know they brought up an expert talking about you know how you know how many people associate apple with you know the look of the ipad of the iphone and their their arguments in terms of dilution and even you know you know trade dress awareness they're all very broad and vague they are glossing over all this stuff and it's not as specific as pictures you know those things work really really well but these other things there's still nebulous concepts and it doesn't feel like up to the point they've done a good job explaining that to the jury right and to be clear the reason I'm focused on how many phones are and the reason that these broad arguments are hard is because at the end of the trial the jurors are going to get a sheet that says galaxy ace does it is Apple's trade dress valid does a galaxy ace infringement yes or no does it the alsace and fringe this patent yes or no and they're gonna have to do that for every single phone and that to me is just bonkers like to put a jury in that position it like maybe increases your chances because you have more literally more boxes marked yes that they can fill out so there's more of a chance to win on one claim against one phone that's a good strategy but the the core of their case is definitely Samsung copied us in like that they can tell that narrative with one device they can focus on one yeah that narrative is huge copy is for dilution and trade dress infringement is huge it's another factor in addition to actual confusion so all the same a total evidence the best buy or whether or not somebody would distinguish between the two startup screens could be offset by apple with all this evidence of copying but instead of just being thrown in there is general information to kind of color samsung as a bad actor but in the end the jury SP will connect that argument was something on their jury instruction sheet and it's tough to do what do you don't even remember them talking about that phone hey look at this phone on the jury sheet you have no it won't get to go back and look through documents it's just the narrative only carries him so far during deliberation yeah I mean now we'll see I mean I have do you think they're gonna the jurors are going to sit there rifling through that 132 page document and say this is pretty obvious what they did I mean it's some point you think Apple has to bring it up you like look at this huh yeah somebody assess look through five pages in skim the rest and pretty much get the message I mean Matt let me bluntly would you characterize that as like a smoking gun or is that just another piece well it's not smoking gonna direct evidence of you know a point of proof for infringement necessarily but it's a huge smoking gun I think as far as kind of your gut feel whatever you're gonna as a juror I think it's uh it's one of the things you'll have in the back your mind every time you think about what they're doing you think about the kind of the credibility of Samsung's defenses it's certainly important I don't I don't smoking I would call it that yeah yeah so you've come around you started with I won't call that and now it's so let's look this over Matt Ryan next week Apple is going to wrap up and then Samsung goes on the offensive now and they've got a whole case about utility patents to prove up what do you think their tactic with that is going to be how do you think that's going to shape up I mean I think they have a our job in front of them and you know with that case because this stuff is just inherently granular it's inherently in the weeds it's going to be hard to go and get people really really involved and Apple is going to be able to say you know these or you know reasonable patents I mean it's gonna be you know there's the whole issue of you know of the you know the the chipmaker that apple buys the chips from you're already having a license this is gonna be hard for me to go and sell it I think just out of sheer like you know jury apathy and that's not to say the jury's not great and isn't like involving isn't excited doesn't wanna do a great job it's just hard to make things that interesting on that level of granularity for regular human beings it's just a challenge we saw with your the other trial yeah I mean I was I mean that was Oracle's problem it would the copyright is that trial and I don't know if people out there listening and they didn't follow the Google Oracle trial what we learned from there was the copyright days was super interesting it was super great it was big personalities and they copied us in lines of code and we can line it all up and say what works and how it does it and it was great to track that and then the patent phase of that trial started and it was literally like a downhill slide of how interesting it was it was big claim charts of like here are patents and here are technologies online up to it and you know Apple has that problem they've got to do it right they've got a show that the claims of the scroll back patent are infringed and I undoubtedly have to do a claim chart at some point but then they've got this other they've got this alternate narrative of they copied our look and feel people are getting confused Samsung has only utility patents to prove up and they're in they're going to jump right into the look at this specific functionality in one of our software patents the iphone infringes it because of this claim chart that says it does that mean and worse yet they have to deal with the friend issues which again puts images she's my colors them in this light that they don't want to be in yeah how is that gonna matthew you have any ideas on how that's gonna play out when samsung goes on the relative ah their case is gonna be incredibly dry and I uh mine but but you know they don't care if they lose they if they win against their defenses against Apple they don't care if they lose their own offensive case yeah matter I mean what if they if they if they win against Apple they win regardless of their own right claims does it matter if they win on some of the phones and not on some of the other phones so how do you see that playing I mean I mean I'm so focused on some of the phones but and the fact that Apple's so many phones in the case but what is that let's say they went on the galaxy s and not in the droid charge and they went on you know they do then they pay money okay I don't see any effect market wise of this case because none of the current phones were even in the case so you're not going to get so what good is an injunction do against the galaxy s right I mean they'll just pay up some money um that's an S inherent problem with these cases they move so slow that by time you get to trial you know your your five iterations past the phone is in trial so um that's why plumber injunctions are so important to the plaintiffs in these cases so I I don't know I mean I I think there's a chance you'll see some of these phones especially design patents galaxy s um pretty good chance they might be found to infringe if the pads aren't invalidated but I just don't I you know I guess if they can avoid injunction and they're not going to get a junction on every phone that I mean it just doesn't work that way you don't get any junctions on these future phones that don't exist or the phones that aren't in the case so um it could just be a big money pay out but it's not all that big really I mean yep it's huge well new piece of their sales right and that's yeah but woke me nuts it was apples asking for like two point two five billion dollars i mean it's not a small amount of but for samsung yeah that's it exam so your cells off a division they're like well we've been making jeep engines for five years we'll just sell that division like that's not actually what happened by the way that is not that is not a formal legal analysis by me something so a jeep factory to pay that's not going to happen well we've gotta wrap up we're going to do this every week so next week there's five days of trial next week so we'll have to squeeze it in somehow but every week the trial goes on there's a lot to unpack up just an enormous amount of information it's coming out of this trial both in-house samsung and apple developer products how they think about each other as competitors and frankly I I think we're learning a lot about how Samsung is going to develop products in the future and I think the s3 the galaxy s3 is a really good example of Samsung kind of learning that it has to be different you know it's a great phone I don't if you guys have used it apart from I don't like pentile screens I can I can like perceive that there's some great at whatever I'm just I'm in the weeds um but it's a great phone and it's very very different than the iphone it did feel everything about it is different and I think Samsung is learning and I keep saying this about Samsung in general is one samsung learns that it is an enormous enormous company that owns every piece of the technology industry and has a major presence and they're confident enough to do things on their own without thinking about the rest of the market in a very significant way like I think that will change things a lot uh you know I was talking to chris sigler who is one of our senior editors and he was like you know if people don't think Samsung is innovative and they're not literally at the top of their game right now they're crazy Samsung is doing some of the best work you know in the consumer technology industry they just have to get away from thinking that they should that they need to be reflective of something else that because the iphone is popular they need to run out make an iphone they need to figure out how to go make something better and different and I think there I think that is happening with them oh yeah we got to keep mind a lot of what's what we're seeing in the evidence was when they were initially working on there yeah 2000 centers more I don't oh yeah and Eve's ome the fact that they're doing it differently now is is anything pretty evident yeah and you know what I want really bad is a galaxy note 10.1 I'm not gonna lie to you I don't think anybody what can I mean that it's like my dream look I'm again way in the weeds um so that's it for the verge a special edition any final thoughts gentlemen you know I just gonna say like you know the point you just made matter what happens with the trial no matter what you think on either sides of it i think it's i think your act is that accurate what you're saying Eli and I it's actually it's great that you know that it's leading to innovation you no matter what you want to what stance you want to take good bad pro apple pro samson whatever you think happened I think it's undeniable that it has gone an increased innovation on their side and that is increasing choice in the market and that is good for consumers because now we can get a phone that's you know that are different and are more very and that's what you're safe that's a nice proposal yeah see Matt Matt's ready he's ready to jump in with ants are a good thing we got it gotta move beyond him I you know I don't the trade dress stuff I get it I get exactly why that some of these software patents are stupid you know Samsung has a patent on one of the patents at issue in the case playing at mp3 while you navigate menus and other application that is the dumbest patent in the world I mean in terms of what you should be allowed to issue software patent on that is it Matt I know you and I argue about what is a software patent and it really incorporates hardware all the time but that functionality saying that is covered by a patent is is stupid just flat out stupid and you know I think a lot of apples scrolling patents are pretty dumb right i mean you have a small device you're using your finger to scroll there's only so many ways to solve the problem how to make a good experience of doing it so that stuff to me is way down the weeds being stupid I think apples I mean again I think that the trade dress stuff and that we built a brand and your free riding on it I think that's really interesting to me I think that's what we're going to see out of this case and you know one thing I was talking to Phillip burn on Twitter who used to info saying he used to be at SlashGear and now he actually works for samsung as a product tester and I was like you know what I miss is there was an entire period of wild Samsung hardware form factor innovation just bonkers like will make it flip open it'll be a triangle little slide the screen will be in two different pieces and that is all gone because people are like we have to build an iphone and I would love to go back to that I would love to see these companies to wild form factor innovation and really make great products that are tangibly different they don't have anything to do with looking like an iPhone and if we get there I'll be very happy I'm going to right now you put they do it of eight they just like you said to do a war on corners or you know some little tweak to think just to get him around yeah the iphone i er but i don't think in the end it's it's really all that innovative so he just got to be room for that i would think what's up Sam okay let's wrap up this this week sometime next week Brian there's a trial and when there's trolley and Wednesday yeah it's all weekend so ends it at seven-thirty 7 30 is when I could officially ends eastern time eastern time so maybe we'll do one late on Wednesday next week we'll figure it out but we'll be doing this every week the trials on for the month let us know if there's something you want to talk about if there's a specific question you have you can leave it in the comments will definitely try to answer I mean I really want to give people I know there's a lot of questions out there and I want to answer them for everybody so let us know there something you want to talk about or an issue you want us to get into and we'll do it gentlemen thank you very much this has been a virg cast special edition do it