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Apple, Samsung Wage Battle Both In and Out of Court

The opening of the "tech trial of century" reveals the combatants' strategies regarding evidence and publicity.

If anyone believed the court contest between Apple and Samsung wasn't a bare-knuckle brawl, the first week of the patent infringement trial should have disabused them of those notions.

Granted, selection of a jury for the proceedings at federal district court in San Jose was serene, compared to happened once the trial began. Seven men and three women were chosen to sit in judgement in the case.

By the first day of arguments on Tuesday, though, that number was pared to nine. One of the women jurors was allowed to go home because her employer told her it wouldn't be paying her while she did her civic duty.

Evidence Battle

As the trial began, Samsung brought up an old chestnut that had been rejected several times before by the judge presiding in the case, Lucy Koh. The South Korean company wanted to submit evidence that it had been working on prototypes of smartphones that resembled the iPhone before Apple's handset was released, as well as "prior art" that showed the American company cribbed from Sony for its iPhone designs.

Judge Koh rejected the evidence again. She said it was submitted to the court after the deadline she set for such submissions. Frustrated by the judge's ruling, Samsung made the evidence public by leaking it to the press.

Even though Apple was allowed to argue to the jury that the Samsung F700 was an iPhone copy, Samsung was not allowed to tell the jury the full story and show the pre-iPhone design for that and other phones that were in development at Samsung in 2006, before the iPhone was publicly debuted, Samsung said in a statement released along with the excluded evidence.

While Samsung was setting off fireworks outside the courthouse, Roman candles were being lit inside it, as both sides made their opening remarks to the jury.

Apple characterized itself as a technology trailblazer willing to take great risks to bring innovative products to market. Samsung, on the other hand, was a copycat that ripped off Apple's ideas and by doing so, dipped into the American company's profits.

Samsung countered that Apple's products were not as unique as it would like everyone to believe. It did acknowledge, though, that good products "inspired" it to create better products. It also accused Apple of violating some of Samsung's 3G communications patents.

As news of Samsung's leaked evidence began to spread on Wednesday, Apple's legal team fired back. It asked Judge Koh to impose sanctions on Samsung that would bolster Apple's own argument: it wanted the judge to declare by fiat that all Apple's patents in the case were valid.

On Thursday, the court took a break from its proceedings, but neither Samsung nor Judge Koh rested. Samsung filed court papers responding to Apple's request for bold sanctions. It called the request "frivolous at every level."

It also argued that releasing excluded evidence to the public was an exercise of the South Korean company's First Amendment rights. It added that it had no intent to influence the jury with its actions, although its statement to the press suggested otherwise. "Fundamental fairness, requires that the jury decide the case based on all the evidence," that statement said.

Now it was maintaining that since the court had instructed the jurors not to read media reports during the trial, the evidence leak would not have any influence on them.

As Samsung countered Apple's sanction efforts. Judge Koh rejected more evidence submitted by the South Korean company. It included visual references to tablet-like computers made in 2001: A Space Odyssey.

Judge Supports Sunshine

On Friday, Judge Koh let Samsung off the hook for its evidence leak. After questioning each juror individually, she said she was satisfied they had not seen the material made public by Samsung.

In addition, she rebuffed Apple on another front. She refused to keep secret Apple sales and marketing information, including country-by-country sales figures. Apple keeps that information under tight wraps and releases sales numbers by region only.

When Apple objected to the decision about geographic sales data, Judge Koh told its lawyers they could always appeal the decision if they didn't agree with it. She had told both parties before the case that they would not be permitted to heavily redact their evidence, and that they should assume the exhibits they submit in the case will be public. No doubt, whatever the outcome of this case, it will be appealed; which could mean years before it's settled. In the meantime, though, it appears that Samsung is prepared to wage war with Apple in the court of public opinion as well as in trial court.

Follow freelance technology writer John P. Mello Jr. and Today@PCWorld on Twitter.

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