 Hey! Welcome to a very special edition of the Vergecast. This is a very special edition of the Vergecast. 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 two Vergecasts 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 Vergecast. So it turns out, you know, we have a big staff of people. And we have, I am joined today by Brian Bishop, who has been reporting with For Us live from the courthouse every day the trial is going on. And we have Matt McCary, who is a rock star, and he is actually a patent attorney, and he's been doing the coverage for us and with us on the patent stuff since we started, basically, right Matt? Since the Verge and that. Yeah, the first day of launch. I can't hear Matt. I actually can't hear myself either, to be perfectly honest with you. Now can I hear Matt? Testing. Yep, there we go. So Matt, you were like, I think, one of our very first hires, actually. Yeah, it came on the first day of November 1st. 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. The trial is going on for another month, I want to say, right Brian? Yeah, right now it's scheduled through the 4th of September. Yeah, so about another month of the trial ahead of us. There's a lot going on each week. And I know there's a big appetite for in-depth analysis of the trial, but again, I think it's the 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 on a regular Vergecast. And that way we won't annoy the people who do not care about patent lawsuits. So let's get 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 the past couple days? Yeah, definitely. I mean, last time we spoke, I believe it 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 of expert witnesses. Yesterday we saw Susan Kerr, who was an icon designer that worked on the original Mac OS and had done work for Facebook and Microsoft. And there were also a bunch of more crazy objections and accusations from Samsung and Judge Lucy Ko getting really, really angry yet again, which seems to be part of the circus of the whole thing. So Friday was really cool because with Schiller and Forstall, we got some looks at 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, just how when the iPhone was introduced, how they didn't do a lot of marketing. They slowly ramped it up with that Academy Awards ad. I don't know if you remember. With everybody answering their phone. Yeah, exactly. And he's talking about what the reaction had been. Apple does do, his team does do some customer surveys in terms of talking to people that have bought Apple products. Steve Jobs has said famously, we don't go and ask customers what they want. Turns out they do ask Apple customers what they think about the products from time to time. I think it's after they're sold. I mean, the distinction there is I think they don't say, what should we make next? They say, well, we sold you this, what about it is good and what about it is bad? Which I think every company does. Yeah, 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 all pay attention to each other. The way they generally market themselves and the way they generally talk to the press about it, they pretend, Samsung pretends Apple doesn't exist, Apple pretends Samsung doesn't exist. Pretty much everybody pretends HTC doesn't exist, which is a sick burn. But the reality is they all 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. They don't care what everybody else is doing. They want to solve problems that they themselves, the Apple employees and executives want solved. And it turns out that, who was it? It was Eddie Q was using a Galaxy Tab and he was like, there's a market for a seven-inch device. They keep telling Steve Jobs we have to make one because I'm using a Galaxy Tab. There's a conference room at Apple, the Android War Room, is that what they called it, Brian? Where they just pay attention to how Android phone makers market their products and 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, internal Samsung documents talking about what the companies take on the iPhone was. They called Samsung's own products when compared to the iPhone. They said there was a crisis in design. One quote was, you know, it's the difference between heaven and earth when you compare the usability of the iPhone versus Samsung's products at the time. And it was interesting. One of the witnesses that Apple called was a marketing officer for Samsung Telecommunications of America. And he basically said, you know, that was just hyperbole. Don't pay attention to that. That's just us like, you know, working the ranks up and getting everybody really excited so they can go and work harder. But it's hard to really believe it because, you know, this document that came out yesterday in its entirety, we'd seen clips of it before, where it's basically Samsung comparing at the time the Galaxy S before it had been released side by side with the iPhone. There's like 132 pages talking about, you know, tweaks to everything. Yeah, icon design, like the way like the keyboard overlaps when you're looking at mail, like incredible minutia. Like every feature. And you know, and they all, yeah, it's pretty insane. It goes far beyond just saying, oh, 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, were adopting iPhone functionality. So Matt, I think I'm going to ask you what you're about to say. So 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 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 of them are covered in the patents. I don't think, I don't even think it talks about, does it talk about the scroll back? I don't even know if it has a comparison in there. I mean, it's really like, I mean, I wasn't even able to read all of it. It's so long. Yeah, I skimmed it. Yeah. It's insane just the level of detail that they went into to compare each feature. And normally when you have a case like this, you'll go into it and this kind of evidence doesn't come in in this big bulk. You'll have a couple of features where you try to show copying. And if it was just the utility patents that were at play in this case, you'd have 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 and the overall thing that makes iOS iOS, they tend to, they have this broad, they have much, the green light is just insane. Yeah. The amount of information they're allowed to get in because of just the nature of their claims. And I think this- 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 trade dress claims in general because copying is such a huge part of it. So I actually want to talk about trade dress just a little bit before we get into sort of the nitty gritty of what actually has been happening in the trial. And I think this is one of the biggest points that is being misunderstood about this trial versus Apple versus Motorola or Apple versus HTC or the inevitable Apple versus Google, which I still believe is coming. All the other cases in the world have been patent cases and pretty much utility patent cases, right Matt? They're, they're about software patents. They're about the scroll back feature on the iPhone. They're about scaling and rotation. Isn't there one that's scrolling where if you lock in a X, Y axis, it doesn't pan to the left and right. Very nitty gritty software features. Yeah, design patents are tough. I mean, they're relatively easy to get, but they're narrow. So 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 a Galaxy S phones and the Galaxy Tab. But what I'm saying is I think the, the, the, the bigger 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 R look and feel and you sold them to people knowing with a deliberate intent to mislead them in the marketplace. And 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 they had the jury and the jury. Right. And 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 what the iPad was, letting people know iOS 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. I mean, Brian, it seems like Schiller, he made that argument pretty well. And then on cross examination, Samsung kind of attacked him a little bit. I mean, how'd that go? I mean, he was good. Like 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 him, you know, what his reaction was when he saw the Galaxy tab and he 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, regular 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 Samsung attorneys have done like I think three times now, you know, basically kind of like a great bit of theatrics. They put the, you know, an iPhone or a, 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 people 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 of Apple's witnesses have held up pretty good actually, except for an expert witness they had got a name, Peter Bressler, who got hammered and started to falter a bit on Monday. Wait, wait, wait. He got hammered by the attorney or he got like wasted on the stand. That'd be amazing. He was like, I can't deal with this. Yeah. Like a big like water pitcher of scotch. Yeah. Wait, so what happened with Bressler? 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 drag the experts down into the muck and they say, here are the millimeter differences. I mean, how's that going? What's their strategy there? Well, basically you have like these broad emotional arguments about copying and the big picture stuff that Apple's making and they are just diving down to these really granular levels basically saying like, is this, there's like the radial measurement of the iPhone 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 minute differences. We saw it with Susan Kerr yesterday about the differences in the icons, like really, really minute 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, 10 differences basically, you know, amongst the set of icons or amongst the design or things like that. One thing with Bressler that was really, really funny, he was showing the patent for the iPad, which, you know, according to the design language of the illustrations basically shows that the back of the iPad has a reflective surface. That's like the O35, actually not the O35 patent. The patent was derived from the O35 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 reflective. You can reflect light off of it. Like, can you see a reflection, sir? Like really hammering home, it's not a reflective surface. You know, which is kind of like part of what Stringer had pointed out, you know, and it's in the illustration for the patent. And eventually- Well, it goes back to Neely's- Go ahead, Matt. So that goes back to Neely's original point that if they were more involved in the trade dress claims, this nuance, the getting down in the weeds by Samsung is a lot less important. It's crucial 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 narrow it down enough. They should have got rid of, they have a design patent in the case on the icons, which is so narrow. And that's what Samsung was focusing on was all the, we don't have this icon, our icon is a different color, you know, has a different shape on this part of it. Those are all important things. And it gets lost. But can we go back a slide, did Apple really put the Meizu M9, the M8? That is amazing. I didn't see that. I can't see the slide. So if you don't know, on the screen we've got the trial evidence from August 7th. And Apple, it's alternative designs for a home screen. They've got the Blackberry torch, the Nokia N9, which is MeeGo, and the Meizu M8. And what's hilarious to me about that is the Meizu M8 is one of the most outrageous iPhone curfs I think ever. Meizu started their company building hilarious curfs of the iPhone, hilarious clones of the iPhone. So it's pretty, I mean, having Apple throw up what is almost admittedly an iPhone clone to show that Samsung could have done something else is pretty ballsy. That's remarkable to me. Sorry, I interrupted you, Matt. Go ahead. No, no. I guess my point is that 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 when 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 to 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 address and I think they're trying to but it's getting lost with their design patents and they have design patents on the icon which is ridiculous. I think in the end they're going to have to 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 hear a lot of things about the testimonies related to the icons and I'm confused by how it's being dealt with 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 it turned out and how it was fought over in general to get it in. Yeah, it's interesting. We've only seen a couple slides of that in court. Some came in last week basically comparing the icon design and then a couple more came in yesterday, came in with the Susan Care testimony but that thing in its entirety hasn't been discussed. It's like a lot of this evidence that we're actually seeing, Neelay you mentioned the comparison with the Meizu phone, the only comparison they actually brought into court as far as alternative design was the BlackBerry torch. So some of this stuff is probably going to be going with the jurors when they're deliberating but it hasn't been introduced, hasn't been shown in slides in court yet. But that whole document, that's part of the 132 page document that we've seen from the very beginning. It may have even been in the opening presentation, I can't recall, but we've seen bits and pieces of that from the very beginning of the thing but we didn't have an idea that it was that massive and it constituted that many comparisons. So they do seem to be picking and choosing their battles and which one of those they're going to represent to make a most effective argument. But in terms of trade dress overall, it's my impression that the trade dress argument is getting diluted in the courtroom because they can be really specific with some of these other design patents. Trade dress seems a bit nebulous. Also they had an expert yesterday talking about the notion of dilution and even that was kind of nebulous. I don't feel like they're making a really strong argument that connects there. And these are hard things to convey to a jury. Apple's been really good at making overall emotional argument and there's a lot of evidence that supports that. But getting down to the nitty gritty, it's hard to sell people. It truly is and you're seeing it watching it day to day, how these people react. There's just a lot of minutia that it's hard for people to latch onto and it's really easy for Samsung to go and pull up a couple of things and make it feel like the overall pictures can be dismissed. So actually let's talk about the people a little bit, Brian. What's the jury like? There was an interesting selection process. We talked about it last week. People from all walks of life, people that have worked in different industries. There are people in the jury pool that were engineers that had patents. For 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 started checking out because the patent stuff and the API stuff was so granular and so hard to follow. Here Apple is doing a good job of keeping it big picture enough. So I think people are really, really engaged and people are leaning forward. They're 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. They're down to nine jurors now because one had to go and leave because of hardship issues. Yeah. She's crying, right? Because her job and let her leave or something. Yeah, exactly. But everybody there is still there. Nobody else is left yet, so that's good. I bought an Exes 7. I got to go. Exactly. What's the judge saying to them about looking at the news? This is big news, right? It's on the front page of CNN. Every time we break, every time they end the day, she always says to them, don't discuss it amongst each other. Don't watch the news. Because there was that whole thing last week with Quinn where he leaked the stuff to the press and 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 happening, that that coverage is out there, that it's getting so much attention. And like I said, three or four times a day whenever there's any sort of break, she has this whole little routine that she tells the jury to not read stuff, don't discuss, keep an open mind. Yeah, so she's been on top of it in regard 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? That's just the sense I'm getting. What's going on for real? No, no, no. It's totally true. I mean, we haven't seen a lot of John Quinn, Samsung, I'm one of Samsung's attorneys since all that stuff went down last week. We've seen a lot of Charles Verhoeven talking to witnesses. Michael Jacobs, who also tried the case for Oracle, has been questioning a couple people this week. 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 reason why they're not getting for a lot of them. These are like discovery issues, things that weren't disclosed earlier, things of that nature. So it's not like she's going out of her way to hammer them. But there's just lots of things they're asking for every day that they get hammered for. And we saw it just earlier this week where they basically accused Apple of tampering with the evidence of one of the phones to make it look more like the icons on the iPhone. It was a joint exhibit for the, it was the Epic Touch 4G, I believe. And basically was saying, it's so good. But basically said, we think they tamper with it. Here we've taken our own picture that shows how it really is out of the box. And it became this big deal because they said they took a picture on Monday night, excuse me, on Sunday night. The picture was dated Monday, have 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 Coe's just getting pissed. 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 you'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 it does feel like there's more frustration on Samsung asking for more. So therefore they're getting less just by the law of averages. Well, Matt, so let me ask you, there's a lot of, there's a drumbeat of Judge Coe, and 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. It seems like Samsung decided to change its narrative and its defense sort of at the last minute. And they changed tactics in how they were going to defend the trial and how they're going to prosecute their case. And so they're having a difficult time trying to execute that change because they have to ask for 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 with evidence that was excluded, all that sort of thing. And then there's just the, you get the sense that she doesn't want to deal with anything, period. And 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, is Samsung just going for an appeal or are they just trying to change tactics and kind of failing? No, I think it changed tactics. You know, the big issue for Samsung and the reason I think they keep kind of pounding on these issues and really going back to the judge over and over again to try to get some of these issues resolved is because they're not going into this trial. I mean, technically they're a counter plaintiff, but they're on the defensive and 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 during deliberation, it's going to have an impact. I mean, 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. And I do agree that part of it is because throughout discovery and then right up until the beginning of trial, they really just didn't have a cohesive plan together. And when you change it up at the last minute like that, you know, a good judge isn't going to allow it to happen for many reasons. I don't think she's at 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 that we're going to accuse you. That's nothing new. I just think the magnitude of the case and the drama that surrounds it has just amplified everything to the point where Ko is just, she's done with it. She wants to get through the trial and I think there's probably a certain amount of enjoyment in that for her. But all this, this sideshow stuff is on her last nerve. So I don't really, I don't, when I 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 it gets amplified. So let's talk a little bit about what's going to, what might happen. There's one more day of trial, right? Wednesday, right Brian? Or not Wednesday, Friday, right Brian? Friday. This weekend. What's happening on Friday? 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 where 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 going to be no methodically going through their case with their expert witnesses and they're, I mean, there's not a whole lot of people left, you know, on their rolling witness list. Let me put, they only have, I want 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. You know, they have, everybody's limited to 25 hours. I don't have the counts right in front of me, but you know, but Apple's, you know, been using a bit of it. There's a, yeah, there's about four or five people left on their witness list. So they're going to be wrapping up, you know, probably like, 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 going to wrap up 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 preview pieces on this, the case itself is, Apple's case alone is unimaginable. And with regard to the amount of proof, I mean, the narratives are great and it's what makes it interesting to us and it's what kind of keeps the jury involved. But if you don't prove up your case with respect to every piece of IP, every patent, every trade dress in the case with respect to every accused product, you're really kind of leaving the door wide open for a, for a big loss, you know, at the end of that deliberation. And they've got so many phones. That's the thing. This case should not, Samsung, I mean, Samsung can do whatever they're doing a 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 to like, if Apple wants to make this argument that Samsung copied their, their protected rectangle, they needed to focus on, I would say the Galaxy S variants. I don't think any of Samsung's other phones and what they did with TouchWiz, a, Samsung received enough punishment in the world for putting out the droid charge. Like that is my fundamental belief, right? It was a bad phone. People, it's not like they accomplished anything with it. What they, what they really accomplished something in the Galaxy Ace and all these 25 phones, right Matt, that are, 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. You know, 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 and saying, compare the icons? And I, you know, I think that speaks to Apple's 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 that on this phone, the Galaxy, can we pull up a picture of the Galaxy Ace? Galaxy Ace really looks like not, 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 might've looked at a Galaxy S or, and I tell the story a lot. I think a lot of people looked at the fascinate on Verizon in particular and said, that's as close to an iPhone or Verizon said to a lot of customers, you don't want to, particularly to women customers, they said, you don't want to droid because we market this as a robot that will murder you. We don't have the iPhone, but we have, we have, we have the fascinate and they sold 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, Apple's narrative gets stronger. If they say Samsung put out this flagship phone, it took this huge amount of market share from us and diluted our, you know, our branding. And it's this, 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, Palm came out with the pre and there was a lot of elements of the pre that people thought Apple's going to sue them over it. And they never, nothing ever happened. Why didn't anything ever happen? Because the pre was never a competitive threat to the iPhone. Samsung, some of their products are, so maybe 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 at an issue that has a slider keyboard. Yes. Apple's not even, those are all in the case because of the OS utility patents. 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, and I don't know if that's a, if 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 has done a bad job of, of kind of narrowing this case down. But I don't think they've ever been willing to just go after just a design and the look. Yeah. They wanted to keep those utilities in. There are people in the chat telling me that the Galaxy S was popular in Europe. I'm not disputing that. That's great. I'm glad cheap phones are popular around the world. Samsung does an excellent job of filling that market. This is not about that. This is about this trial and trying to prove to nine people on a jury that some phones copy some, 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's going to get, I mean, Brian, have they gotten through this? Are they, are they doing representative groups of the phones or are they, are they just all the individual phones? They're doing all the individual phones. But I mean, speaking to your point before that, that strategy that Apple's taking is already you're seeing, you're seeing it both hurt them and you're seeing like why a device specific strategy would, you know, works better. We talked about them, you know, showing a Samsung attorney showing the startup sequence for different devices. 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 you could go and compare that. That's that hurts Apple, right? But Apple with, you know, with the, with Dr. Care, they were very, very careful to go and compare the iPhone icons and that those documents 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 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 Apple's case. I mean, that's, that's where it hurts them the most because if they were focusing on trade dress and 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 dilution. So 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, are consumers actually going to be confused? And to be fair, you know, most people when they're like learning about a device, you know, if you go to Best Buy, you're not necessarily going to be turning it on, right? You're not going to see that startup sequence. That's not guaranteed by any means. But it's a compelling argument to a jury. You know, and 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 arguments in terms of dilution and even, 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, they're still nebulous concepts. And it doesn't feel like up to this point, they've done a good job explaining that to the jury. And to be clear, the reason I'm focused on how many phones there 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 the Galaxy Ace infringe it? Yes or no? Does the Galaxy Ace infringe this patent? Yes or no? And they're going to 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 core of their case is definitely Samsung copied us. And like that, they can tell that narrative with one device. They can focus on one device. Yeah, that narrative is huge copying is for dilution and trade dress infringement is huge. It's another factor in addition to actual confusion. So all this anecdotal evidence that 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 it's just being thrown in there as general information to kind of color Samsung as a bad actor. But in the end, the jury has to be able to connect that argument with something on their jury instruction sheet. And it's tough to do when you don't even remember them talking about that phone. You're looking at this phone on the jury sheet. You have no, I don't even have to go back and look through documents. It's just the narrative only carries them so far during deliberation. Yeah. I mean, we'll see. I mean, I have, do you think they're going to, the jurors are going to sit there rifling through that 132 page document and say, this is pretty obvious what they did. I mean, at some point you think Apple has to bring it up. You're like, look at this, huh? Yeah. Somebody has to look through five pages and 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 a smoking gun and the 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 going to, as a juror, I think it's one of those things you have in the back of 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, smoking, I would call it that. Yeah. Yeah. So you've come around. You started with, I won't call it that. And now it's, so let's flip this over. Matt, Brian, next week, Apple's going to wrap up and then Samsung goes on the offensive. 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 hard 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's going to be able to say, these are reasonable patents. I mean, it's going to be, there's the whole issue of the chip maker that Apple buys the chips from already having a license. It's just going to be hard for them to go and sell that, I think, just out of sheer jury apathy. And that's not to say the jury's not great and isn't involved and isn't excited and doesn't want to 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 the other trial. Yeah. I mean, that was Oracle's problem. The copyright phase of that trial, and I don't know if people out there are listening and they didn't follow the Google Oracle trial. What we learned from there was the copyright phase 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 doesn't. 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 that line up to it. And Apple has that problem. They've got to do it. They've got to show that the claims of the scrollback patent are infringed. And they'll undoubtedly have to do a claim chart at some point. But then 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 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. And worse yet, they have to deal with the friend issues, which again, puts them in this colors them in this light that they don't want to be in. How is that going to? Matthew, do you have any ideas on how that's going to play out when Samsung goes on the offensive? No. Their case is going to be incredibly dry. But they don't care. I mean, in the end, if they lose, if they win their defenses against Apple, they don't care if they lose their own offensive case. It doesn't matter. If they win against Apple, they win regardless of their own claims. Does it matter if they win on some of the phones and not on some of the other phones? How do you see that playing? I mean, I'm still focused on some of the phones and the fact that Apple has so many phones in the case, but what is the let's say they win on the Galaxy S and not on the Droid charge and they win on, you know, the pay money. I don't see any effect market wise of this case because none of the current phones are even in the case. So you're not going to get so what good does an injunction do against the Galaxy S? Right. I mean, they'll just pay up some money. That's a that's inherent problem with these cases. They move so slow that by the time you get to trial, you know, you're you're five iterations past the phone is in trial. So that's why polymer injunctions are so important to the plaintiffs in these cases. So I don't know. I mean, I think there's a chance you'll see some of these phones, especially on design patents, Galaxy S. Pretty good chance they might be found to infringe if the patents aren't invalidated. But I just don't, you know, I guess if they can avoid injunction and they're not going to get injunction on every phone that I mean, it just doesn't work that way. You don't get injunctions on these future phones that don't exist or the phones that aren't in the case. So it could just be a big money payout, but it's not all that big, really. I mean, it's huge. Well, it'd be a piece of their sales. Right. And that's. Yeah. But I mean, that's Apple's asking for like two point two five billion dollars. I mean, it's not a small amount for Samsung. Yeah. But Samsung sells off a division. They're like, well, we've been making Jeep engines for five years. We'll just sell that division. And like, that's not actually what happened, by the way. That is not a formal legal analysis by me. Samsung will sell a Jeep factory to pay. That's not going to happen. Well, we've got to 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. Just an enormous amount of information is coming out of this trial, both in how Samsung and Apple develop their products, how they think about each other as competitors. And frankly, 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 know if you guys have used it. Apart from I don't like pen tile screens. I can I can like perceive that there's some greatness. Whatever. I'm just I'm in the weeds. But it's a great phone. And it's very, very different than the iPhone. You feel everything about it is different. And I think Samsung is learning and I keep saying this about Samsung in general is once 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. And, you know, I was talking to Chris Ziegler, who is one of our senior editors, and he was like, you know, 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 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 and make an iPhone. They need to figure out how to go make something better and different. And I think they're I think that is happening with them. Well, yeah, we got to keep in mind a lot of what's what we're seeing in the evidence was when they were initially working on their. Yeah, in 2007. Smart phone. Yeah. And I mean, the fact that they're doing it differently now is, I think, 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 will. I mean, it's like my dream. Look, I'm again, way in the weeds. So that's it for the Vergecast special edition. Any final thoughts, gentlemen? You know, I just want to say, like, you know, the point you just made, no matter what happens with the trial, no matter what you think on either sides of it, I think it's I think you're right, it's that accurate what you're saying, Neal. And it's actually it's great that, you know, that is it's leading to innovation, you know, no matter what you want to stance you want to take good, bad, pro Apple, pro Samsung, whatever you think happened. I think it's undeniable that it has gone and 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 varied. And that's what you're saying. That's a nice consequence. Yeah, see, Matt, Matt's ready. He's ready to jump in with patents are a good thing. You got to you got to move beyond them. You know, I don't the trade dress stuff. I get it. I get exactly why that some of these software patents are are stupid. You know, Samsung has a patent on one of the patents that issue in the case, playing an 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 a software patent on that is, 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 Apple's 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 of how to make a good experience of doing it. So that stuff to me is way down the weeds of being stupid. I think Apple's I mean, again, I think that the trade dress stuff and that we built a brand and you're free writing 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 Philip Byrne on Twitter who used to be at Infosync, 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 we'll make it flip open, it'll be a triangle, it'll 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 do wild form factor innovation and really make great products that are tangibly different, that 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 stop. I think right now when they do innovate, they just like you said, they do a war on corners or, you know, some little tweak, they think just to get them around the iPhone ire. But I don't think in the end, it's really all that innovative. So there's got to be room for that, I would think. Let's hope so. Let's wrap up this week. Sometime next week, Brian, there's a trial on Wednesday. There's trial day on Wednesday. Yeah, it's all weekend. It ends at 730. 730 is when it can 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 trial is 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. We'll 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 if there's something you want us 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 Vergecast special edition. Do it.ほнийнэс т