Google agreed to pay for Samsung's defense against Apple

Apple and Samsung are battling over patent infringement in a San Jose, Calif., court. Shara Tibken/CNET

Google has provided funding to help Samsung defend itself against Apple's patent-infringement claims, emails between the two companies revealed Tuesday.

Google patent attorney James Maccoun, in deposition testimony presented by Apple in court here, authenticated emails between Google and Samsung from 2012 that said that the Internet giant would "defend and indemnify" Samsung over its use of technology that Apple said infringed its patents. The emails said Google would help shoulder some of the cost for the defense, as well as for any damages should Samsung lose its battle.

"I see [indemnify] as a general term relating to providing a defense against claims and then can mean other things depending on the outcome of litigation," Maccoun said during his deposition.

Google and Samsung had signed a "Mobile Application Distribution Agreement" that required Samsung to include Google apps on its Galaxy devices. Because of that, Google agreed to help Samsung with legal issues related to the use of the technology.

"I understand that Google is defending Samsung and that this is reflected by emails," Maccoun said.

In particular, Google agreed to help Samsung defend itself against two Apple patents -- '414 for background syncing and '959 for universal search. Those patents wielded by Apple directly target features of Android that Google developed, including the Google search box and Gmail. The other patents target features that can be tweaked by handset makers or by the Android open source community.

According to Maccoun's testimony about the emails, Google's agreement with Samsung also meant it actually had control over Samsung's litigation and defense against Apple's two patents.

This isn't the first time Google has helped Android handset makers defend themselves from litigation. The company has Mobile Application Distribution Agreements with essentially all Android vendors, as revealed during its trial against Oracle in 2012, and it has providing funding, technical support, and other assistance to partners facing lawsuits. Google played a very notable role in HTC's recent case versus Nokia, helping HTC with its defense before HTC and Nokia ultimately settled.

It's unclear how much funding Samsung has received or will receive from Google. The two companies declined to comment.

Apple's attorneys presented the evidence as part of their efforts to cast doubt about Samsung's truthfulness. Presentation of Maccoun's taped deposition followed the reading in court of a Samsung interrogatory response from Sept. 24, 2012 where the Korean company said it was "not currently seeking indemnification from any third party." The emails verified by Maccoun contradict the interrogatory, however, and showed Samsung asked for indemnification from Google as early as April 5, 2012 -- the date of an email from Samsung exec JaeHyoung Kim to former Android head Andy Rubin.

Almost two years after Apple and Samsung faced off in a messy patent dispute, the smartphone and tablet rivals have returned to the same San Jose, Calif., courtroom to argue once again over patents before Federal Judge Lucy Koh. Apple is arguing that Samsung infringed on five of its patents for the iPhone, its biggest moneymaker, and that Apple is due $2 billion for that infringement. Samsung wants slightly more than $6 million from Apple for infringing two of its software patents.

While the companies are asking for damages, the case is about more than money. What's really at stake is the market for mobile devices. Apple now gets two-thirds of its sales from the iPhone and iPad; South Korea-based Samsung is the world's largest maker of smartphones; and both want to keep dominating the market. So far, Apple is ahead when it comes to litigation in the United States. Samsung has been ordered to pay the company about $930 million in damages.

Most Samsung features that Apple says infringe are items that are a part of Android, Google's mobile operating system that powers Samsung's devices. All patents except one, called "slide to unlock," are built into Android. Apple has argued the patent infringement trial has nothing to do with Android. However, Samsung argues that Apple's suit is an "attack on Android" and that Google had invented certain features before Apple patented them.

Suing Google wouldn't get Apple far since Google doesn't make its own phones or tablets. Instead, Apple has sued companies that sell physical devices using Android, a rival to Apple's iOS mobile operating system. In particular, Apple believes Samsung has followed a strategy to copy its products and then undercut Apple's pricing. While Apple isn't suing Google, it expects that Google will make changes to its software if Samsung is found to infringe on patents through Samsung's Android devices.

In the current case, Apple and Samsung have accused each other of copying features used in their popular smartphones and tablets, and the jury will have to decide who actually infringed and how much money is due. This trial involves different patents and newer devices than the ones disputed at trial in August 2012 and in a damages retrial in November 2013. For instance, the new trial involves the iPhone 5, released in September 2012, and Samsung's Galaxy S3, which also debuted in 2012.

Meanwhile, Samsung earlier Tuesday revealed that it has reduced the amount of damages it wants for Apple's accused infringement of two patents because it dropped the iPad from the list of infringing devices. Apple should pay Samsung about $6.2 million, testified Brigham Young University economics professor James Kearl, an expert hired by the Korean electronics maker to calculate damages. Earlier in the trial, Samsung asked for about $6.8 million in damages.

The difference comes from the '239 patent that covers video transfer. Samsung now wants $6.07 million in damages for infringement of the patent. Earlier, it asked for $6.78 million. The company dropped infringement claims against the iPad 2, iPad 3, iPad 4, and iPad Mini over the weekend, Kearl said.

Samsung says Apple's FaceTime video call feature infringes the patent, as does technology that allows users to take videos and send them to other devices via email or text messages. It now has accused only the iPhone 4, iPhone 4S, and iPhone 5.

Apple on Tuesday also launched its own defense against Samsung's infringement suit. Its first witnesses, Apple engineers Tim Millet and Roberto Garcia, testified about the creation of technology used in iPhones and iPads. Millet serves as senior director of platform architecture at Apple, helping create the processors that power iOS devices. Garcia, meanwhile, talked about the creation of the FaceTime product that has been accused of infringing a Samsung patent.

James Storer, a professor of computer science at Brandeis University hired by Apple as an expert witness, then testified that Apple didn't infringe Samsung's patents. Apple rested its defense shortly before 2 p.m. PT.

The latest trial kicked off March 31 with jury selection. The following day featured opening arguments and testimony by Phil Schiller, Apple's head of marketing. Other witnesses who have testified include Greg Christie, an Apple engineer who invented the slide-to-unlock iPhone feature; Thomas Deniau, a France-based Apple engineer who helped develop the company's quick link technology; and Justin Denison, chief strategy officer of Samsung Telecommunications America. Denison's testimony came via a deposition video.

Apple experts who took the stand over the past few weeks included Andrew Cockburn, a professor of computer science and software engineering at the University of Canterbury, New Zealand; Todd Mowry, a professor of computer science at Carnegie Mellon University; and Alex Snoeren, a professor of computer science and engineering at the University of California at San Diego.

The crux of Apple's case came with two expert witnesses, John Hauser, the Kirin professor of marketing at the MIT Sloan School of Management; and Christopher Vellturo, an economist and principal at consultancy Quantitative Economic Solutions. Hauser conducted a conjoint study that determined Apple's patented features made Samsung's devices more appealing, while Vellturo determined the amount of damages Apple should be due for Samsung's infringement -- $2.191 billion.

Samsung, which launched its defense April 11 after Apple rested its case, called several Google engineers to the stand to testify about the early days of Android and technology they created before Apple received its patents. Hiroshi Lockheimer, Google vice president of engineering for Android, said his company never copied iPhone features for Android. Other Google Android engineers, Bjorn Bringert and Dianne Hackborn, also testified about features of the operating system.

High-ranking Samsung executives, including former Samsung Telecommunications America CEO Dale Sohn and STA Chief Marketing Officer Todd Pendleton, also took the stand during the weeks-long trial. The two executives testified about Samsung's marketing push for the Galaxy S2 and other devices, saying a shift in the Korean company's sales and marketing efforts -- not copying Apple -- boosted its position in the smartphone market.

The past several days of testimony have largely been experts hired by Samsung to dispute the validity of Apple's patents and to argue that Samsung didn't infringe. The experts include Martin Rinard, an MIT professor of computer science; Saul Greenberg, a professor of human computer interaction at the University of Calgary in Canada; Kevin Jeffay, professor of computer science at the University of North Carolina, Chapel Hill; and Daniel Wigdor, a computer science professor at the University of Toronto.

David Reibstein, chaired professor of marketing at the University of Pennsylvania's Wharton School of Business, on Friday refuted Apple expert Hauser's testimony from earlier this month. NYU Stern School of Business professor Tulin Erdem, meanwhile, on Friday also testified that she conducted her own studies, using eye tracking, to determine what devices consumers would buy. She concluded that Apple's patented features didn't boost desire for Samsung's products.

Monday, Judith Chevalier, a professor of economics and finance at the Yale University School of Management who was hired by Samsung, said her analysis determined that a reasonable royalty for Samsung's assumed infringement would be $1.75 per device, or $38.4 million overall. Apple had argued it deserved $40 per device for infringement as well as lost profits for a total of $2.191 billion.

There are seven patents at issue in the latest case -- five held by Apple and two by Samsung. Apple has accused Samsung of infringing U.S. patents Nos. 5,946,647; 6,847,959; 7,761,414; 8,046,721; and 8,074,172. All relate to software features, such as "quick links" for '647, universal search for '959, background syncing for '414, slide-to-unlock for '721, and automatic word correction for '172. Overall, Apple argues that the patents enable ease of use and make a user interface more engaging.

Samsung, meanwhile, has accused Apple of infringing U.S. patents Nos. 6,226,449 and 5,579,239. The '449 patent, which Samsung purchased from Hitachi, involves camera and folder organization functionality. The '239 patent, which Samsung also acquired, covers video transmission functionality and could have implications for Apple's use of FaceTime.

The Samsung gadgets that Apple says infringe are the Admire, Galaxy Nexus, Galaxy Note, Galaxy Note 2, Galaxy S2, Galaxy S2 Epic 4G Touch, Galaxy S2 Skyrocket, Galaxy S3, Galaxy Tab 2 10.1, and the Stratosphere. Samsung, meanwhile, says the iPhone 4, iPhone 4S, iPhone 5, iPod Touch (fifth generation) and iPod Touch (fourth generation) all infringe.

The arguments by Apple and Samsung in the latest case should finish by the end of April. Court will be in session three days each week -- Mondays, Tuesdays, and Fridays -- though the jury will deliberate every business day until it has reached a verdict. Closing arguments likely will take place April 28.

This article originally appeared on CNET.

  • Shara Tibken On Twitter»

    Shara Tibken is a staff writer for CNET focused on consumer tech news. She previously wrote for Dow Jones Newswires and the Wall Street Journal. She's a native Midwesterner who still prefers "pop" over "soda."

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