In attempts to further streamline an upcoming California trial, both Samsung and Apple filed motions last Thursday to dismiss claims, strike theories and exclude testimony of expert witnesses hired by the opposing party, reports FOSS Patents' Florian Mueller.
The introductory paragraph of one Samsung filing smacks of the tone used by the Galaxy maker in its TV ads that portray Apple users as so-called "fanboys."
From the motion:
"Apple's damages expert, Terry L. Musika, writes in his report that 'Apple has built a considerable and at times a cult-like following to all things Apple.' That cult-like following apparently includes several experts who are appearing on Apple's behalf in this case, and may explain why they have cast aside established scientific methods and governing legal principles in favor of slavish adoration of their client and platitudes about its alleged magical and revolutionary products, issues that are of no relevance to the claims and defenses at issue."
Interestingly, the brief goes on to name Musika as one of the eight witnesses whose opinions and testimony should be excluded by the court.
Mueller notes that Samsung was especially critical of Henry Urbach's testimony regarding the "alleged cultural significance" of Apple products. The motion asserts that Urbach "unquestionably is a loyal devotee of Apple, its designers, its products, and its retail stores," noting that prior to being hired by Apple as an expert witness, he wrote an essay on the design of the company's retail stores titled Gardens of Earthly Delights that describes them "as '[q]uasi-religious in almost every respect, . . . chapels for the Information Age.'"
Urbach's expertise was also questioned, with Samsung saying that he "lacks the qualifications to serve as an expert on Apple?s 'design excellence' or its public appreciation" and bases testimony "solely on his say so, rather than any objectively verifiable data." The qualifying remarks to those objections were redacted from the document.
For its part, Apple seeks to exclude the opinions of eight Samsung experts, citing position and qualifications as reasons for rejection. The company also moved to strike theories that are inconsistent with Samsung's initial invalidity and infringement disputes as well as those that were not presented during discovery.
Mueller believes that Apple's motion for summary judgment is more focused than Samsung's opposing filing, noting that Apple argues against three Samsung patents, saying it doesn't infringe on one while seeking to invalidate two others. Samsung, on the other hand, presented a "laundry list" of items for the summary judgment stage:
- Invalidate Apple's trade dresses because they are allegedly functional. Samsung says Apple's trade dress dilution claim, which involves the iPhone and iPad, should be tossed because it allegedly cannot prove that those trade dresses are famous.
- Invalidate all six asserted design patents; five for obviousness over prior art, one due to the "on-sale bar" as the iPhone was on sale before a related design patent was applied for.
- The tossing of all four Apple utility patents because the asserted claims of three are invalid and the asserted claim of another patent is not infringed.
- Dismissal of Apple's FRAND-related antitrust claims on summary judgment because Apple allegedly cannot prove any damages because no products have been excluded from the market due to Samsung's standard-essential patents.
Both companies are expected to file their opposition briefs soon.
The CEOs of both companies met today in California as part of court-sanctioned two-day settlement discussion, though the talks are not expected to be particularly fruitful.