 Hey, welcome to the Vergecast Special Edition, Apple vs. Samsung. I'm right at the top of this. I would like to apologize for having dead hair. I think I look... I think I look... I have terrible hair. That's not a problem. You know why? Because we're talking about lawyer stuff and I should look responsible. So, this is the Vergecast Special Edition. We're here to talk about Apple vs. Samsung. The ongoing trial that is now actually wrapped up. The jury is deliberating. We don't know what's going to happen. I'm joined by two people from our team who are experts in everything Apple vs. Samsung. Matt McCary and on the phone, still at the court, has not gone home, Brian Bishop. Hey guys, what's going on? Hey, Matt. How's it going, man? That's good. So, you're like... It's just like Brian, Judge Coe and one other reporter? Yeah. Have you been hanging out? I like to call her Lucy. Is that allowed? Does anybody call her Lucy? I feel like McElhenney would have called her Lucy. Lucky. I've heard Lucky. Ooh, Lucky's good. So, it's been... I would characterize this as a monumental week in this case. In its way, for the entire tech industry. On Monday, we had jury instructions. Right? Is that what happened on Monday? No, Monday they argued about the jury instructions. Yeah, exactly. On Monday, they argued about what jury instructions they would give to the jury. Then what happened? What happened on Tuesday? Something happened on Tuesday, right? Tuesday, we read the jury instructions. We read the jury instructions, which took around three hours or so, which was... Oh, it's Wednesday. That's what's wrong with me. I thought it was Thursday, because I'm usually in this room on Thursdays. I'm sorry, Brian. Look, continue. Yeah, well, basically, yesterday was kind of nuts, because everybody got up and showed up super early. On the very first day of the trial, there was this huge line, like, sneaking outside. We kind of repeated that yesterday, and people were really, really hyped, because it was a big deal. Lots of satellite vans there, people broadcasting. It was a big deal. It was preceded by this most three-hour-long reading of jury instructions, which was ethically mind-numbing. All the around them, people were just ready to die by the end of it, basically. It was pretty miserable, because people were checking their email, doing whatever. But after lunch, I came back. We finally got to Seattle and San Sonino. Just doing our closing arguments, which was awesome, because, you know, I wrote a piece last week about how we lost the narrative thread. In the last week of this trial, we finally thought we were trying to make it yesterday, which was a big thing, because we should be little bits and pieces that come in, and they don't get really put together as a whole for the jury. But that happened yesterday, so it was great to see that kind of come together again. So, let's talk about that a little bit. I mean, let's just go through the day. We're going to spend a lot of time on closing arguments. But let's talk about what happened at the beginning of the week and then throughout yesterday. Apple and Samsung have been – and people might not know this – but the backdrop to this case the entire time has been Apple and Samsung arguing a lot about what the jury instructions are going to be, whether the jury would be instructed over whether Samsung destroyed evidence, whether Apple destroyed evidence, what the final verdict form would look like, how it would shape up. You know, Apple wanted to group products into sort of representative groups, and they have been in the background arguing about this pretty vociferously, right? I mean, so can you characterize some of what happened? Because this is now the key. I mean, the jury is in a room alone, and all they have to work with is what they've heard in the court, obviously, the exhibits they brought with them, and these instructions and this form. And the way they fill out that form is the way the case is going to go. So can you talk about a little of the backstory with the jury instructions and the verdict form? Yeah, well, definitely. And one thing that was important that did happen on Monday, there had been months ago Apple had asked for this magistrate that Paul Grewal, basically, whoever might be on the case, when the case finally happened or the jury began deliberating to tell the jurors that Samsung had kind of acted in bad faith with regard to evidence. And they had gotten a kind of risk for having destroyed some evidence, and he granted Apple's request to go and have the jurors told they'd done that. Because the court wanted to know what they think can be said for Apple, because there's some that Apple had a hold on to e-mail because there was going to be a particular condemnation. So Judge Kovach agreed with Samsung and was going to go and tell the jurors that both Apple and Samsung had kind of, you know, placed that evidence with evidence. And Apple, obviously, argued very strongly against that. They're point is that there was no evidence that they destroyed anything. You know, Steve Jobs had been told to go and preserve e-mail. They had an in-house system pulled onto this kind of stuff, was direct evidence that from Samsung had been kind of missing. But at the end of the day, Kovach said, you know, I agree with you guys. We're going to go and we'll be able to both side. At that point, Apple and Samsung both said, which you're going to say we both did that, let's just say that, just say nothing. Nobody thinks anybody did that. That was an important thing because that's when I can really kind of, you know, labor, you know, the jury's impression of Samsung going into this thing and kind of could have set a tone. But Apple didn't get that, which was definitely a win, I think, for Samsung. Yeah. So basically they said, OK, we're going to read both sides did something wrong. And if both sides did something wrong, we'll just say, no, we won't address it at all. So that finally happened. That has been going on in the back of the back of everything for a while. And then the jury form, which we're going to talk a little bit. The final one was given out yesterday. I like that there was a there was a break in proceedings while they literally made copies of the form. And like George went back to her chamber. So that thing is 20 pages long. It has 33 groups of questions on it. And if you individualize the groups of questions in terms of claim against device and there's 20 odd devices, 28 devices, 21 devices and many, many patents. There's actually 700 individual questions, I think something around the area of 700 individual questions for the jury to answer on this form. So that was handed out. And then Judge Coe read was one hundred nine page eighty four item jury instructions. She just read it. Right, Brian? So your live log of that was she's just hammering through it. Can you tell me what was that like? Well, it was it was impressive because either this is a lot of legal language, it's pretty dry. And she just kind of went through it. She was like the Terminator. I mean, she just kind of like did not stop. There was like one brief moment where there's a slight catch in her voice, but she just like, you know, went through it. But it was kind of funny. She like, you know, that we're going to be basically said that we're going to be miserable. So she said, let's make sure we have a little break. We can stand up and stretch every, you know, 10, 15 minutes or so until we hit the first one of those. But like, oh, great. This is miserable. If you promise much stretch around a bit, but she always talks about 10 seconds. I really write back down and put out another little longer break. Please. And people got outside and but she just jammed through it, which it's hard to read this kind of stuff and keep people interested. And by the end, the jury was kind of tuning out. I mean, to be honest, it was hard not to be. They have copies of it. That's not like that. Remember everything she said it would be impossible for them to remember it all. Yeah. But just in terms of like powering through it, it was it was impressive. She's a stamina. Right. She's cranked through it. Well, let's talk about the end of it a little bit, because, you know, the top of the jury instructions to me are kind of interesting. Right. There is there's you know, we're going to give you a bunch of devices. Don't update them. That's like to me, that's like the geeky stuff. Right. That's interesting. It's like you're going to go in this room. We're going to pull the SIM cards out of the phone so they don't get software updates. You're going to experience what they're like. You get to compare them. Blah, blah, blah. And at the end, it's like the doctrine of patent exhaustion is a doctrine. And it's like, were they even paying attention at all during that stuff? Because that's the stuff that they need to know the most about. I feel like the design patent question, the trade dress question, it's like pick up the phones and look at them. If you think people are confused, you know, mark an X somewhere. And then the way wonky legal questions are how much should Apple pay for Samsung's 3G patents? And it's like, were they paying attention when they were being informed how to make those decisions? I mean, I think everybody was paying attention. Obviously, it wasn't necessarily that super-end-wise at any other certain point. But also, I think some of these questions are so nuanced. And like you said, they're talking about legal concepts in specific detail. It seems like at a certain point, they're just going to sit there with the mesmerized and kind of go down the checklist and say, do I think it does this and do this and do that for every single device? I think there's somewhere around 28 devices that Apple is accusing of using in one form or another. And it seems like they're just going to have the instructions in one hand and have the devices in the other, and just kind of like go through it one by one, which is why this is going to be such a long wait, I think, either back or in the end. Yeah. So, hey, Matt, let's ask, I mean, you've done a few of these, right? I mean, what do you think the jury is taking away from this part? Were they being instructed how to interpret the patents, look at the patents in terms of the devices, understand what they're supposed to do and make decisions? On the jury instruction side, it's just an incredibly antiquated exercise. It's really, it's ridiculous. I mean, they're not absorbing anything. I mean, they have the sheet there if they need it. The problem is you have to kind of make sure they've heard it at least once or else, you know, or else they may never look at that particular instruction. But still, I mean, they're not paying attention. So it's just a waste of time. But it has to be done. But I think for the most part, like especially with the infringement issues, I mean, they kind of get it. I mean, without going through all the elements of anticipation and obviousness and whatever else instruction they got, whatever other instruction they got, they're going to kind of get it. I mean, one thing about this case for the jury at least is that, you know, no matter how many devices you look at, at least on Apple's side, no matter how many Samsung devices you look at, it's not that tough, you know. I mean, infringement and, you know, the look of it and you can kill off some patents, you can find non-infringement, whatever. But it's not that much work. Though, yeah, the real work is just trying to figure out how to kind of memorialize that as you're walking through the procedure on that jury instruction or on the verdict form. Right. So, I mean, if you're... It normally is like two or three pages long in a regular case, by the way. Right. So, you know, just to compare to the one, the last trial we covered, which is Google and Oracle, that verdict form was like really straightforward, right? It was, was this patent valid? Was it infringed? And you just went down the line. This verdict form, Brian, I mean, I would say it's like ten times more complicated than the other one. Oh, absolutely. I mean, it all comes down to all these specific devices, you know, too. It's like, you know, each, they have to answer, you know, each question for each patent on each device. And it's, you know... Well, wait, wait, wait. Times three, right? And this is, I think... Companies. Times three. So, this, I think, is the layer of complexity that we've never talked about. And if you're wondering why we're spending a lot of time talking about jury instructions and this stuff, it's because closing arguments are great, but the question that they're answering in that room is not, did Samsung copy Apple? It's 700 individual questions that add up to, did Samsung copy Apple? Did Apple copy Samsung? And that's crazy. So, without knowing what they have been, without basically setting the stage for them, they won't be able to do it. I mean, they literally won't have the tools to answer these questions. You know, just before we were starting, we were saying, like, where you look at the form, right, John, our producer, is sitting here staring at me. I mean, you look at the form, you're like, I read Tech News all day long. And it's like, how do you answer the question, was this trade dress diluted in the marketplace? Like, I don't know. And the jury only has what they're given to understand that. So, that's why, I mean, I think it's really important that we kind of understand what they're trying to do before we go into what the emotional, you know, the emotional content of the closing arguments was. And to me, what I think is really crazy is, you know, there's like huge charts, and the charts say things like, did Samsung Electronics in Korea infringe this patent? Did Samsung Telecommunications America infringe this patent? Or did Samsung Electronics America infringe this patent? And it's like, who knows the difference between those three companies? And I'd like to know, since he was there every day, I mean, how much did they really even explain the distinctions between those companies to the jurors? Yeah, the most of it came from Justin Dennison, who testified pretty early on. I believe Apple called him, actually, but he was a Samsung executive. And I think that came up right in the beginning, but it was one of those things where there wasn't necessarily a lot of context and groundwork laid for when he testified about it. It was kind of like, you know, details that were being thrown at the jury. And it was one of those things where you're like, OK, how is this going to come into play later? And then you kind of see, OK, here's why it's important later. And I touched on the closing arguments a bit. But that was a long time ago. There's been a lot of information thrown at them since then. And it is one of those things where you kind of do have to look, and that's where the jury instructions can come into play. And the verdict forms, they can specify why those things are different, how you figure out which one is countered by what. Did the Korean company basically compel the other companies so they're firmly responsible as well? And all those minor issues that weren't really handled specifically in the testimony, that's when it kind of got laid out for the jury. Yeah, but for me, that's so dumb. I mean, it's just a trick. I mean, it is. It's a trick. It's Apple's getting away with it because Samsung isn't one company, right? So Samsung has all these subsidiaries in the United States. I mean, I know the difference. I'm just saying I don't think, I think we think of Samsung as one company. But it's not, right? There's Samsung in Korea. There's Samsung Telecommunications America, which sells everything basically with a cell radio in it. And there's Samsung Electronics, which sells the other things, which is crazy. I mean, that is like classic insane Samsung, right? I mean, that's like the Galaxy Tab Wi-Fi gets sold by Samsung Electronics. The Galaxy Tab 4G LTE gets sold by Samsung Telecommunications. That's bonkers, but like whatever. But Apple gets another crack at it because they get to accuse Samsung Korea of inducing its American subsidiaries to infringe patents. That's crazy. I mean, to me, that's like, I don't even know what that could possibly be like. That's like, I like, Matt, give me an example. I can't, but you understand why I think this is so dumb. Yeah, well, inducement, matter of fact, when we were talking about this on something we're working on, the first time I saw inducement, I mean, when you see inducement in a patent case, it's normally dealing with basically you're trying to get a company, put them on the hook for something they sold to an end user and the end user is infringing, but you're never going to sue the end user. You're going to sue the company that actually whatever puts the method out there or whatever it is that that's infringed. It's weird to kind of see it in this regard where you're using it to capture a party in the suit. That is one party. I didn't know. Instead of just going after direct infringement. Yeah, I don't even know. It's just done. It's like one company. It is a gotcha because that's the way they structure their business. Anyway, so beyond, I mean, I'm saying that's a level of complexity in what the jury is doing right now that goes well beyond did Samsung copy Apple. They literally have to decide on top of everything else. Did Samsung's Hydra like structure, does that mean we have to punish them more because of a technicality? Because Samsung Korea made a phone and designed a phone and then gave it to Samsung Telecommunications America, which then sold it to AT&T somewhere in there. Is there an additional piece of liability? And they have to figure that out. So to me, what it's very interesting to talk about and we're trust me, we're going to talk about in great detail what happened in the closings. But what's almost to me more fascinating is the incredible job the jury has to do now in taking everything they've learned over the past three weeks and turning it into all of these decisions. If it was just did Samsung copy Apple, I feel like, you know, that's like a 50-50. Who knows? Who knows where they will emotionally land on that after all this. But this process now of going through every, I mean, there's a line on the jury 22 or 23, question 22 or 23 is literally a dollar sign, a horizontal line, and then a question that says how much should Samsung pay Apple? And it's like you could write any number and they could literally come up with any number they want to put in there. And they have nine people have to decide and agree on what number that is. And that's crazy. Any other thoughts on the jury instructions, guys? Anything we need to talk about before we move on? No, I just, go ahead, Brian. Disagreement on the Verge cast. One of the interesting things about all those questions is it's also about trying to take as many bites as the Apple. I mean, okay, that was accidental. That was terrible fun. I would take as many bites as I can because in terms of the court of public opinion, Apple just needs one count of infringement. And I just, everything it's doing, right? Right. Like, who is from, everything will be like, oh, Samsung did copy Apple by having all those different options in there. It's a deficit that they want because they don't put it in their advantage. I feel like they're being, they're confusing as it is. It does increase the likelihood that the jury will come back with at least something. Yeah. Well, I was wondering yesterday if Apple's ultimate strategy with their, and we've been saying that this is kind of the weakness of their case. The complexity of the case is a weakness from the beginning, but you have to wonder if their strategy is just to irritate the jury into like checking off a bunch of boxes, writing $2.5 billion and like getting the hell out of there. Well, I'll be honest. It's hard for me to imagine them completely wiping out all of Apple's claims, whether it's through invalidity or non-infringement. I can't imagine Samsung's going to walk away without being on the hook for something. Yeah. Now, you're right though. I mean, after that, it's kind of arbitrary. I mean, what's the damages? And they talked in the closing yesterday about this big last hurrah when he was addressing the jury was, you know, you kind of have this window, this continuum between zero and $2.5 billion. You know, make sure it's high enough that it's more than just a slap on the wrist to somehow alter the behavior. And I think that's important for Apple. I think, I mean, if they got all of their infringement claims and only walked away with a minimal amount, I got to think that they would be seriously worried about what the message that sends to anybody else that wants to kind of take this line, you know, developing iPhone-like devices or iOS. Like operating systems. Yeah. There's a lot of bad outcomes for Apple and there's a lot of bad outcomes for Samsung in the middle of walking away scot-free and getting paid $2.5 billion. So Brian, let's shift gears and talk about the closings yesterday. I think yesterday was, you know, I agree with you. It started out with this incredible anticipation that was crushed by Judge Coe reading the jury instructions, but it picked back up again in the afternoon when closings really did start. So you want to walk us through what happened there? Yeah. You know, Apple started basically and then both sides had two hours and both sides basically did like, you know, their closing arguments and they had a, you know, they had a rebuttal section. And so, you know, Apple was, you know, really, really smart and they were almost dispassionate about it. They talked kind of their whole, you know, their whole push was, you know, let's look at the evidence of the story and we think you'll figure it out. So just, you know, look at the document, you know, the big push was if you want to find the truth, look at the historical document because they have all of those, you know, comparison sheets, you know, Samsung reports that look so bad. They kind of basically, like, lay stuff out basically, like, boom, boom, boom. Here's the evidence. We don't see how you could think any other way. And it was, we frankly, it was really effective because it was coming off books so much random detail, like they have them, you know, bring everything together was really satisfying. It seemed like the jury was really engaged. Yeah. And it was just a return back to, you know, everybody talks about the rules, but I can kind of put up return to that. I mean, I mean, you kind of ended it like, okay, they made some good points. They definitely scored there, but Samsung, you know, their strategy along the way has, you know, been going discredited, you know, Apple experts, witnesses, you know, belittled, you know, what changes, you know, the, you know, the, the, the, the industry that kind of thing. And they were really, really effective at kind of bringing that strategy from the big control. And I think it was very, I guess he was, there was a sense of outrage about him and he delivered really well, cheated a little bit too aggressive at times. I thought the most part of the basically, you know, we were a company that just works really, really hard and being trained as a matter of, you know, like a competition in America, basically, you know, Apple against America was kind of like the underlying, you know, some tech through there. So I thought this was really, this stuff was really fascinating that Sam, Samsung came out angry and I thought, I agree with you. I think they did a really good job. I mean, they were on fire. They were saying there's nothing here. You know, they're telling you to look at all this stuff, but none of it means anything. You know, this is all stuff every company does. There's nothing wrong with what we're doing. We're just looking at the market and trying to understand what's going on. Their witnesses don't know anything. I thought he was particularly brutal with Susan Care, who, you know, was Apple's expert on whether icons can be designed one way or another. And he was saying that's their expert and she doesn't know anything, which is mean. I mean, flat out mean. I'm sure she was very happy. It was also a bit irrelevant, actually. I'm surprised that Apple didn't kind of go back over that when they rebutted the closing. Well, so what Matt's getting at is, and Brian, I mean, you were there, so maybe this focus came through a little bit differently, but Samsung kept on saying there's no actual confusion here. No one's really confused, right? They never showed you any evidence of confusion. They never showed any surveys that there was confusion. But that's not actually the standard Apple has to meet. The standard they have to meet is, for the trade dress stuff, is likelihood of confusion, which is obviously very different than actual confusion. And for the design patent stuff, they have to say it was designed, what Matt, it's the standard is what it has to be deceptive in the marketplace, right? Which is a very different standard than actual confusion. And so Samsung is sitting there, they're hammering away on no one's ever actually been confused when the law the jury has to apply is actually kind of different. Is that the standard for design patents, Matt? Right, it's deception. It's also likely the confusion to the consumer. Okay, so yeah, the standard basically, for our purposes, we can say the standard for both is likelihood of confusion. And actual confusion is a factor, but it's one of like seven or eight or however many more they want to throw in there. And no particular one has any more weight than the other. So it's, I mean, one of the other factors is copying and intent to copy. So if I'm Apple, I would point that out, especially on rebuttal after they just got to saying you have to have actual confusion, no one's confused. But I really didn't see them address that very much during the actual testimony or during the closing. Well, I have to say, well, okay, so for me, and maybe I've got this wrong, they both blew their rebuttals. I think we should save that for the end. But to me, they both completely blew their opportunities on rebuttal. But it was a catch all time. It was. It was like, here's a bunch of crap you've never heard about before. Let's talk about it. So but to me, I thought Samsung's, you know, he had a line, Verivan had a line. With this case, you can change the nature of competition in America, which to me is like a little bit ominous. Right. I mean, Apple's not suing Motorola for copying its design. Right. They've got some patent stuff in the mix. Apple's not suing HTC. They're not suing Microsoft. They should be suing Google, but they're not. It's just funny to hear, you know, this company accused of directly copying, show up and say you can change the nature of competition in America. On the other side, equally bad, Apple's lawyer goes, you can affirm the United States patent system with this case. That is insane. Which to me is like, dude, do you want to lose? Like, did you get paid to throw this thing at the last minute? You can affirm the patent system. Part of this is because we're in this kind of this world where patents are under constant scrutiny. So so that really hits us as like, come on, it's a crazy thing to say whether or not the jurors really feel that way. The guy with the that there is somebody on the juror that has multiple patents. Right. On the jury. So but yeah, when I heard that, it just twitched. I mean, that's just why would you ever encounter with that? Even if the jury is like is out of the tech world, if they're sitting there and they've just gone through three weeks of we have a patent on scrolling that bounces and Samsung, we have a patent on playing MP3 while you look at your email. I'm thinking, well, dude, maybe we should throw out the patent system. Brian, what was your reaction to that stuff? Well, I took it out the whole the whole level, the country built on competition thing that Samsung led with was so strong, compelling, high-tech ruling went back with that, you know, for the patent. I think it was Lee. I do that. The affirming the patent system thing. I just felt like a response to that, you know, initial, you know, attack because it was so effective that it didn't seem necessarily very thought out because I don't feel like a normal person. You necessarily know what that means or how real feel for that other than some sort of, you know, you know, Michael Bay flag waving, you know, gay, you know, the thing. But the audio call picture. Yeah, I'm very, very walky-dewy. They're like, you know, the company's open competition. Everybody understand that that resonates with very, very core level for every one of those jurors. Right. I mean, you know, things seem like that test account of it didn't really play. I felt like that's what you're going for. And it didn't really work. Yeah. Well, you know, your character that is to, you know, let us compete is we will let you compete. We just want to copy. I mean, that's that's really their story. I don't know why you didn't have to get off of that. I mean, that's that's just as compelling. So there's really no need to kind of go off this pro patent route. I don't know. It made no sense. Yeah. I mean, well, so so Brian, you know, the sense that I'm getting is that Matt and I watched the stuff at a distance a little bit. And I got the sense that Apple's case again, you know, in kind of an exemplary Apple way was very simple. Very like here it is like you're going to stand in line and buy one of these kind of like, you know, Apple moment. Right. Like, here's what we think. It's very simple. You have four options to compute the damages. Pick one. Let's get this over with. God bless America. Right. And then Samsung showed up and they're like, look at all this stuff. Like, here's this razzle dazzle presentation. Like, I'm pissed off. I'm worried about the future of America. His damages presentation, I thought, was really off like kind of wild because I think at one point he said allocated operating costs in his closing argument. Right. And it's like, why did you say those words to the jury? Like, why did you spend any time saying those words in your closing argument and like this giant trial? I mean, is that sense is that kind of I mean, again, we're at a distance. So is that is that sense accurate that Samsung was passionate and fiery, but a little less organized? Apple was a little down, but very succinct. You're definitely correct on Apple. I think Samsung, you know, they were aggressive. They were very snarky and actually, I bet that if you think about Apple ads and Samsung's ads recently, it actually played as a perfect analogy to them. There was a moment where there was talking about the Susan care testimony. He was kind of reading her testimony back in this weird like he took on a voice that kind of like his like, I'm using my lady voice now. And it was it was really I didn't see the jury respond negatively to it, but it felt really condescending. And his whole take on Apple was this very, you know, murky and snarky. Who buys an Apple? It wasn't about the product. It felt like, well, you know, an iPad ad and watching that that rock and roll ad that Samsung put out of the, you know, those ads of people go up to the people in the Apple store line. They're like, oh, hey, here's my note. It's awesome. It felt a lot like that. I do that all the time, by the way. Here's my note. What now? It's awesome. Yeah. But he was engaging and I think there was definitely a thing to that. And, you know, jury, you know, they were leaning forward. They were really interested. What was weird about the clothes was that he had about 14 minutes left and he spent it all on, you know, defending the FB frame patent stuff. She really don't drive a weird way to close for the bottle. It was like a stranger in that you call it out and we're talking to him. And the thing is, like, that's just bizarre waiting to end things up after you've made these passionate principles point going to that once again leaves you in the way. Yeah. Yeah. I mean, OK, we should talk about these rebuttals. I want to spend a little bit more time on the substance of the talk a little bit. Right. Because I thought Apple made some points that kind of bear repeating. And I thought Samsung made some points that kind of bear repeating before we we talk about how they blew these rebuttals, because I mean, to me, that's a whole story unto itself. But so Apple came and they said one one line that I think is really interesting. And I want to get your sense of how important you think this is going to be to the jury. I think as William Lee said, it took Apple five years to create this revolution and it took Samsung three months to copy it. That's the truth. And that's simple. It's clear and it's undisputed. And he's making reference to Samsung saying, you know, our sales are faltering. We have a crisis design. They put out the Galaxy. Yes, their sales went up. Do you think do you think that was as it's impactful on the page? You know, we have it on our in the rapid article that Brian did. We have it. You know, we pulled it out in bright orange. It's very impactful. Was it as impactful in in in the courtroom? It's a great line. The problem is that it was basically all back to the icon designer's testimony. We talked about this in the last of the last Vergecast. There's actually months, you know, I got, you know, sleep, believe my baby, all this kind of stuff. And when they, you know, have that, when that text went out of the mail, when Apple, the nation, there wasn't a big focus on it being this, you know, oh, there is this rush job. You know, that basically there was like, you know, Samsung was in crisis and had to respond. It was like this three month sprint to go and get the thing going. That wasn't really framed as clearly as it could have been. Yeah. As an argument during testimony. And so it felt a little bit I mean, it's a great line, but it also felt like it was they're trying to go and put together the last event. Obviously, the push for chronology was a big part of their closing arguments overall. That line in the room, even though it sounded great, it didn't feel like it was powerful as it could have been because there wasn't enough backing it up. Can I say my favorite? Oh, go ahead, Matt. I'll just say that's a great point. I mean, I think some of these things often people come up with them when they're working on the closings because it's got to be kind of it's this compelling presentation to the jury. And I think something like that, somebody had a light bulb go off and unfortunately they didn't have that light bulb go off when they were presenting all that testimony because it could have easily worked that into the theme. Yeah, it would have been pretty powerful. There was another line. I can't remember what it was. Oh, it sounded like one that they probably wrote down and they never said out loud and it came off super awkward. It was, you're going to have to decide who lived by the rules and who didn't live by the rules. And I can just see him just being like, and those who didn't live by the rules were Samsung. And it's like it starts out like cruising towards the impact and then it just like, like just explodes into nothing. Like it just falls apart into awkwardness. So dead on, so dead on. It was literally one of those where he's like, oh, lives by the rules and dies by the rules and who didn't live by the rules is Samsung. And I can feel like he even like looked down and looked away and went back to notes or something like that. It was totally just kind of like, just kind of fell flat. All right. So let's talk about these. So I think the sense you need to get from the closing arguments, if you've been paying attention to this, is they both started off with different types of kind of emotional pleas, right? One is, you know, we, they, you know, Apple started right off with Steve Jobs. I mean, they, I think it was within the first sentence they had said Steve Jobs worked on the iPhone for five years, right? Like they're there, they're making the emotional connection between we worked hard and, you know, as Matt has been saying, this is their narrative the entire time. We're Apple. We spent all the money, we made the phone. Now Samsung copied it. Very dry, very look at the pictures. You can see what damage has been done here. Samsung came out and said, this is basically bullshit, right? I mean, I think I had a tweet yesterday, characterized it as Apple's entire game plan and closing was just look at this. And Samsung's entire thing was yes, but let's look at it in exhaustive, painful detail. And that's, that's, I think what we get came away from it. But then these two, I'm going to call them jokers. Then these two jokers had the chance to offer rebuttals. And I want to say they both utterly blew it. You know, they, they delivered some lines at the very end of their rebuttals. They got into some zingers, but they kind of just wasted their time. Matt, I know you definitely got that sense. You want to talk about that a little bit? Yeah, I got it. I got it with Apple's. Although I will say that Apple started tying it back in at the end of the rebuttal. Whereas Samsung just took the whole 14 minutes minus five seconds at the very end and just pounded on these, these, these issues. I mean, this is the last impression you have before this jury goes back and looks at the nightmare verdict form you've handed them. And, and this is, and you've just completely bored the hell out of them. Eyes are glazed over and it was insane because I figured, okay, I'm going to be a smart ass. I'm going to say, yeah, this is terrible way to waste your 14 minutes. And I figured four minutes into it, they're going to shift gears and get back to their theme. But no, they just, they just kept going. Yeah. Brian, what was the vibe there? I mean, to me, there was like nuts, like just the fact that you're going to bring up, they're going to say in your last 14 minutes in front of your, you get the last 14 minutes in front of the jury and you're going to spend it on, you know, we didn't break Etsy rules because we timely disclosed our innovations to the patent board and our licenses under FranDark. It's like, I, no one cares about this. Right. And you didn't sell the use. We, the patent exhaustion doesn't apply because we sold to China. Yeah. Right. Well, there's a problem too with, and I think we touched on this in the live blog, you know, Samsung had some time management issues. They had some throughout the trial. They had some in closing yesterday. When Verhoeven was being a couple of times, the Samsung attorney to come up to him, kind of whispered in his ear, it felt like he was kind of, you know, saying like, okay, you know, warning him about his time. Basically at a certain point Verhoeven started getting really, really rushed. This is before the rebuttal. This is in the, the margin. He started getting really, really rushed and lost the thread and then they came up with another trick. He came up and afterwards Verhoeven was like, you know, let's take a break right now. Regroup for a second. They came back much stronger. I think there was a lot of stuff they didn't get. Well, you know, in the rebuttal, there was a lot of stuff out there. And it's weird because that's been not been a focus. I mean, it was in fact, it hasn't been an issue that anybody can't account for. It wasn't a big static point for anyone. It was just information that was disseminated. And we don't spend that last bit doing it. It's really weak because even though Apple had clunkers, they did, you know, they have it on their larger, you know, narrative points, you know, in their rebuttal basically. You know, the whole thing about, you know, compromising on damages, you know, they came up with the, you know, reaffirmative, competitive, competitive. Now they talked about overall impression being important, individual icons, which is in a way that Samsung tried to go and tear down the comparison between the product. They kind of, you know, they have other points that were Samsung just kind of petered out to the point where Verhoeven's mission, he was like, thank you, you know, that's a great, thank you very much. And they're walking back and just, it was like, well, you got a couple more minutes. He's like, oh, okay, I thought something else was maybe a large, you know, longer, more thought out. Thank you. And he still had more time and he's like, okay, that was the guy. It was very, very weird. I don't know if that was an attempt to go and make him seem more gracious. I know getting to think having to walk the pure, very disorganized at the end. Yeah, it wasn't very satisfying. I mean, you got to think about this in terms of how things are normally done. If you have a patent case, just a run of the mill patent case on a doorknob or, you know, some kind of one patent, maybe a handful of products that are alleged to infringe, that trial can go on for a week, a full week of testimony. And you'll come out with a much simpler jury instruction and much simpler verdict form. But if that kind of trial goes for a week, it's insane to think about how much was compressed into this case over, was it three and a half weeks? Yeah. I mean, it's, I'm not sure that they went into it. I mean, they knew, I mean, they knew 24 hours was nothing really in the whole scheme of things, considering the complexity of the case. But it just so much, you know, some of the odd things that happen when this during this time crunch is when you have witnesses jumping up, saying, you know, talking for five minutes and getting off the stand. I mean, that never happens. I mean, it's it just never happens in a regular case, because, I mean, my guess is you're really trying to actually get the information embedded in the jurors brain. And I don't I don't know when that happens with this juror, unless they get it out of that jury instruction sheet, which I doubt it. I mean, they're just going to have to do a lot of work on their own when they get back to that jury room. So let's talk about what is happening in that jury room right now. So, Brian, did you see them when they came in this morning? Drugs. Drugs. I didn't. I didn't see them, unfortunately. I would love to see them when they left today, because I don't I don't think they saw the verdict form until after they left the courtroom yesterday and they just had to be miserable, unhappy people when they saw that thing. Yeah, I mean, it's it's an insane document. So they go in. Let's they go in. Well, actually, real quick, Brian, Matt, let me ask you this. Who had the better closing yesterday? Neither one of you is willing to go out there. I'm just Apple, just because I felt like they did pull it back around at the very end. Yeah. Ryan, I think it was pretty close, actually. I would probably give a small edge to Apple just because, you know, the easiest issues to discuss, you know, are the ones that they're presenting. But there's so many opportunities for people to go and find information with what they're doing and their narrative. Ultimately, I feel is more compelling just from a dramatic standpoint, you know, because, you know, Samsung's defense overall is we we didn't copy stuff, you know, form follows function. And so you can't really get mad at it. They brought up an example of going in the best. He's looking to say, as an example, what smartphones are like. And that's true. But there's so many specifics. Yeah. You know what? I didn't get about that. Does that mean it's now open season on Samsung's TV design? Because, you know, they do like touch of color. They've got the really thin bezels like technology. Just go in there now and be like, look, you said all TVs look the same, but it's there's a lot of like dancing on on on pinheads there. As for me, it looks just like TV. That would be amazing. If Apple puts out a TV that looks just like a Samsung like touch of color TV, that would be terrific. And then they could sue each other and they could literally just like switch binders like the two sides. Here's here's what we said the last time. OK, cool. So for me, I think I thought Samsung came out of the gate way stronger yesterday just because they they had the fire. They had the passion and they I mean that rebuttal to me was, you know, the time issue, they had time issues from the get go. I mean, during even the first part of the closing, they had time issues. So to me, they just kind of they got caught up in losing time. And instead of instead of making sure that they delivered the emotionally impactful argument, which is the only thing that's really important, I think they made sure to check all the boxes of the legal arguments. And that to me, that that was completely manifested in their rebuttal where they spent 14 minutes talking about friend and it's they should have spent 14 minutes talking about anything else. So, you know, I'll give I'm with you. I give the slight edge to Apple just for for at least keeping the plot at the very end and kind of like making the impact. But I thought Samsung started out very strong. Go ahead. Definitely. And they have the opportunity to close when they have the time. I think there was just one or two lines about, you know, that that's a complete trailing the marketplace instead of Apple trying to quote. Hey, stop that is off the paper on that. Like it in the beginning, it just kind of left the ramps up along the direction like the jurors already were just kind of whatever about that. And really, in the face of all the other happening, it's kind of controversial. I don't think I don't think thinking that, you know, Samsung was, you know, active in that space in terms of brand is going to tip the scale. The time pass anybody like I feel like they could have left it alone and it's hammered on their team and done right. How impressed would you have been if knowing that the only thing you really want to talk about is friend? You just say, screw it. You get up there to say we don't have any rebuttal. I just kind of, you know, it's we're confident we're going to sit down. I mean, sometimes it's better just to shut up and sit down. I mean, there's there's no reason to use every minute of your time if you're not really going to contribute to anything. So, I mean, I really was. I think I agree. Apple did a lot of the same thing. I just don't think it was all packaged at the end on that last impression, which is really kind of what I mean. In the end, I'm not I'm not confident the jury's not going back there and say, God, I hate those bastards for doing that 14 minutes. So I'm going to screw them over on all these claims. But but I do. You know, everything kind of builds on itself and you get this kind of overall feeling. And, you know, when you get to the friend issues, you stuff's you know, they don't know any more than they did before that 14 minutes. Yeah. So you really got nowhere except kind of annoying them and mostly just boring them. Yeah. So, yeah. Well, and us. I mean, I will say that I got to dish out a couple of hilarious tweets because I spent. Yeah, that was. And I'm just calling my own tweets hilarious. That's where I'm at in life. That's what kind of ego monster I've become. So let's talk about what's going on in this room. We've got a few minutes here. We can kind of wrap this up. They're in there. They're picked. They have to vote on a foreman. I think that'll be kind of interesting to see who they pick at the end. They've got all these devices. I think it's hilarious that they have an overhead projector so they can put their binders full of evidence up. And like like my fourth grade classroom, I'll look at the same piece of paper. What do you think they're going to start with? I mean, do you think they're going to go in order? Do you think they're going to skip around? Do you think they're going to set the form aside and just talk about the case at whole? Where do you what would you do? I would start from the beginning. Go ahead and go ahead, Brian. Yeah. Well, I would look at the way my friends walk. I would probably look at all the invalidity stuff first because some I mean, they can still find a print and have a patent be invalid. I don't know at the same time. But I would have kind of just prepared for the record. I would kind of go ahead and look at the work from there. I imagine they'll probably, you know, start in the order of. Right. That is the most engaging stuff. That's the stuff you want to talk about. Right. Do you think they're going to actually hold up the phone? I mean, they've got all the phones in there and they one of the instructions is if you believe these design patents adequately describe a real device, you can use the real device and not the patent to make the comparison. So they can hold up an iPhone and say, does this look the same? I mean, do you think they're doing a lot of that? To me, the idea of being on this jury is insane. Like the idea that you're alone in this room with like eight other strangers, basically. And you've got to decide whether one giant company copied another giant company to me is beyond beyond comprehension. I mean, but I guarantee there's at least one or two ringers sitting in that jury room that are going to pull out every product. Yeah. The same ones that held their hands up and answered every question in class. They're going to go they're going to go through and they're going to at least for a while until they realize the futility of it all. And I think for a while they're going to be pretty diligent. And and that bodes well for Apple, because if you start from the beginning and in the beginning is where it requires the most diligence because of those crazy charts. Then I think I think that could benefit them because then by the time you get to Fran, you're just disgusted. Yeah. Bottom of the jury forum. So, I mean, I mean, it's all kind of I mean, it's hugely speculative. But but I think most of these people are going to kind of start from the beginning because, you know, what else? They don't really know where else to go. So they're going to kind of start driving through all these questions. I was showing some of the charts to Chris Ziegler today and he was like, this is my dream. I need to be able to get on this jury. The idea that that somewhere in the world right now, there are nine people in a room sitting around a table like discussing the Samsung gym in extreme detail is literally my dream. He was very he was very unhappy. He's not on the jury. I saw that. Yeah. Yeah. You know, he meant it, too. I'm sure. Oh, he did mean it. No, without question. So let's the one last thing that I think we need to really address with the jury in the process now is how long do you think this is going to take? And and I mean, pretty much with every day that goes by, do you think the lawyers begin to freak out more and move towards settlement? Deadside break. Yeah. I just want to keep cutting up Brian's. I was trying not to. I'm letting you go first. Go for it. Well, it's going to last a whole I mean, a long, long time. I don't I don't. I mean, this is impossible to come out of the jury room if you've done. I mean, you can't get nine people do that kind of job that they would come out of that jury room in like, you know, a day. Yeah. But a week or two easily. I mean, and as far as whether or not Apple and Samsung are kind of seeing this is getting scary now, you know, we're starting to realize what we've just done and who you know, this is these nine people are going to decide our fate or at least a big chunk of our bank account. I I. I have hope. I mean, just like you, I think that they're going to, you know, somebody's got to start thinking about that if they haven't already. I just don't see it happening. Really? I think I think the role in the dice. I mean, I just do. It's such an irresponsible, crazy dice roll. I mean, I have to say, if you are. Yeah. If you are Apple in your or your Samsung and you're saying we're going to let these nine people who have barely any understanding of this law. We we tried to teach him a friend and literally the last 14 minutes, we're going to let them go in there with a sheet of paper that says, did Samsung violate section two of the Sherman antitrust act? And trust them to know what the hell they're doing, where we could get or we could spend our time actually competing by talking Apple and getting our incredibly sophisticated lawyers and business people on the phone and saying, how do we make a deal that works? It's obvious which one to pick. Like, I don't even know how you end up in this situation. I think with every day that goes by, they're going to realize more and more what a gamble they're making. I mean, can you say that? Yeah. Now, I'm just saying, like, it's it's there's a meeting with Tim Cook and his general counsel. And he's like, so you think the nine guys will figure it out and give us the two point five billion? Yeah, you know, definitely. And it's like, what? Meet like that happened. That had to have happened. Right. I mean, that's that's how you allow this to happen. Oh, exactly. I mean, these I mean, I've been in cases where, you know, I'm positive that the other side, the other side's attorney is just feeding a line of bullshit to the other opposing party. And it's like nothing you can do about it. Right. You know, this is this is a huge corporate entity with shareholders to answer to. And presumably a lot of smart people involved in decision making, even on even the ones that are talking to the litigation counsel. So to me, it's bizarre. It's a reason 90 percent. What is it? 90 some percent of the cases, patent cases settle before ever getting to the jury. I mean, it's it's it's a crazy gamble. And in this case, it's one of the biggest ever. You know, really. So, Brian, what do you what you're the one you've been seeing the lawyers. I mean, are they just have they been showing up in new cars every day? I mean, do they have a giant BMW brochures like at the desk with them? Like, what's the vibe? You know, everybody was super, super fried yesterday. Like everybody, like clearly nobody slept like the last three or four days. It seemed like after the end of things yesterday, team Apple seemed to be in a very, very good mood. Team Samsung seemed to be in a very. They didn't seem excited, they weren't laughing, they were just there ready to get out. Yeah, because somebody probably walked up to Vera and was like, dude, you just spent 14 minutes talking about trying to get on the case. Yeah, it's based on the end. You know, so like in terms of that, it seemed good. But at the same time, you know, after, you know, Oracle, Google, Michael Jacobs seemed to be in a great mood after that as well. And that obviously did not go their way either. Right. So, I mean, for me, in terms of the jury, like I have August 31st in the back of my head in the day because this jury has been through so much, you know, so much information, so many long hours. The day before a holiday weekend, they do not want to come back on Tuesday and resume this thing. So if we hear anything back from them, I'm guessing it's not putting it. You know, I'm saying the 31st as my only likely prediction, but nothing this week at all. But I think every day that goes along further in the downstream that I think is bad for Apple. I think the downsides for Apple here are far worse than what Samsung's facing. I mean, Samsung can be. I think that's true for certain. They're like whatever, like they're like, there's such a huge company who cares. Apple getting a bunch of his patents invalidated. That's a much bigger problem for them. Right. Well, yeah. I mean, again, I'm saying in between zero and two point five billion dollars are a lot, a lot. I mean, let's say the jury says you infringed all of Apple's patents. How much is that worth? Ten dollars. You know, like that. You imagine that's in there. That's in the range of possible outcomes. And it could happen. That's a bad outcome. There's a lot of steps all the way up to all the way up to two point five billion dollars. And there's a lot of places where I think a company would say, well, Samsung got dinged for it. They got billed or fined a couple of million dollars, but their products are colorably better. And they made their dominant in the marketplace. Like, fine, let's put the money like put the money under the bed. We're going to copy the iPhone and we'll pay the money when it comes out. And that's a terrible precedent for Apple. For Samsung, there's all kinds of bad. You know, there's you infringe this patent, but not this patent. You get nothing for your friend patents. You violated the you violated the Sherman Act. There's a whole range of ways that Samsung's business can be thoroughly disrupted, especially because of sort of the multiple businesses at play here. And again, there's a lot of ego at play here. I understand there's a lot of history about both these companies wanting to prove, particularly, I think Samsung wants to prove that it's as innovative as Apple, which is great. But at some point, Apple and Microsoft, they signed the deal. They settled the litigation in the 90s and they moved on and they're both doing well. And I think that's that's really key here. We'll see. I mean, with every day that goes by, my my belief is that settlement becomes more likely as opposed to natural verdict being delivered becomes more likely. But that's just me. I would agree with that. And I also qualify with I'm hopeful as well. Like I said last week, I think it's a win win if they settle. But I just don't know. I mean, it's just been so I could just picture how it's going with these guys when they meet. Yeah. You know, you give me money. No, you give me money. Screw you. They walk away. It seems like it's probably a pretty childish conversation, but yeah. So, Brian, are you going to be you're going to do the court every day until they come back? That's your every day. There's a court filing system. So we get basically email alerts that there's a note from the jury or a verdict and there's about a 15 minute notice. So, you know, just going to be here in San Jose with phone and computer nearby. And then we hear anything. We run to the courtroom and see what the latest is. Brian's gonna be in San Jose just hammered at like three in the afternoon. Dude, there's a verdict. I've been doing nothing for three weeks. He's a huge beard. Okay, amazing. I mean, you are going home. You're not sleeping at the court, are you? Well, only a couple of times. Those are dire circumstances. Only the time I bought a sleeping bag. It was cool. Nice. There's a broom closet. All right. Anything else? We've been at this for an hour. Anything else we need to touch on? There's a mosquito in here as well. So I'm eager to. No, I'm kidding. There is a mosquito, but I don't want to end because of the mosquito because I'm not a coward. Awesome. From Wisconsin. I've been bitten by a mosquito. Anything else we need to touch on? Anything major before we jump off the phone here? No, I think that's I mean, it's going to be interesting. You know, one thing I'd like to say on the Gorkul case, while it was annoying, at least there was a lot of times during that deliberation where you know, kind of a little bit of excitement would pop up with the jury notes. You'd ask a question. At first it was kind of cool. Then you realize most of the questions were the same question over. Just reworded. But so I'm hoping for some of that. Again, the issues are different. I mean, those those patents were terribly wonky. And I mean, the copyright claims, everything was more technical and more complicated, even though it was smaller. Yeah. I don't know how much we're going to get. Maybe because of that jury form, we might get more questions than we think. But yeah, they're literally going to be like, what is trademark dilution? Nobody ever trade dress dilution. Nobody ever explain this big black boxes in this chart for. What is Samsung Telecommunications America? That's a fine question to ask. Who are these people? Pretty much crazy. Well, look, I think we've got another week or so of this to go. We'll probably do another show next week. Hopefully, hopefully we'll have something to talk about in terms of settlement or news of settlement or maybe even a verdict. But it's always gentlemen. It's a delight to have you on the VirgCast special edition. Any Brian, anything you want to what's what's the weather like at court today? I feel like we've got we've got to extract all the information about the ambiance of the court from you. Right now, we're not in court. Judge Kozarski is working on some other cases now, criminal cases, I believe. I just meant around the court, not in the court. You know, Saturday, it's a nice 70 degrees. There's a movie theater down the street. Maybe things get really slow, I'll hit that up. But no, it's just it's generally chill. Yesterday was awesome, though, because you had a bunch of journalists that had been basically living together, you know, day in and day out for about three weeks. At the end of things yesterday was like it was like a vacation. Everybody was like really, really happy, like phone numbers, like, you know, you know, BFF, you know. But it was just emotionally was actually really, really interesting. And the same thing happened with the local, too. It's like you spend so much time following something this closely. You do kind of develop this extended family. I mean, we three are talking about it, you know, every week, every day. We're talking about it. It's the same kind of vibe. There was a tinge of sadness, actually, that this case in the case was over. Yeah. And today there's like, you know, there's only like four or five journalists around here today. That's a much different thing. But we'll probably see a bunch of people. We hear more stuff. The one thing I'm hoping for is that we saw with a couple of those questions in Oracle, we saw things start to fall apart. We saw the sign that the jury was not going to make a decision. And I'm hoping we see some tells in that regard because that can go and set the stage and also drive settlement talk really, really rapidly, depending what we hear back from them. It's very true. So, yeah, we'll see. I mean, notes from the jury. I haven't even thought about that. Notes from the jury. That should be that. Is that a book? That's a book. That's definitely got to be like a room like a like a ladies romance book. Yes. And the jury. So it's like, yes. We've got Nicholas Sparks on the phone right now. There you go. Do it. Brendan's pretending to dial my benefit. You have Nicholas. We got to wrap this up. Gentlemen, always a pleasure. We'll talk next week. That is the Vergecast special edition. Apple versus Samsung. Rock and roll. You.