At Apple v. Samsung damages retrial, accusations of racism fly

Apple v. Samsung View all...

Samsung and Apple are nearing the end of the latest chapter in what appears to be a never-ending story. As we reported, a damages retrial began last week in a San Jose federal court solely to look at how much money Apple should receive from Samsung. (A second patent trial, based on newer products like the iPhone 5 and the Galaxy 4, is scheduled for March 2014.) The damages trial affects older Samsung phones like the Fascinate, Galaxy S 4G, Galaxy S II Showcase, Mesmerize, and Vibrant. Some of the final arguments took place on Tuesday afternoon, and the comments sparked unexpected accusations.

'When I was young, I used to watch television on televisions that were made in the United States,' said Harold McElhinny, an attorney representing Apple. According to press reports, the lawyer cited several brands, including Magnavox, which formerly manufactured in the United States but do not do so any more. 'But they didn't protect their intellectual property,' he continued. 'There are no American TV manufacturers today.'

Once the jury left the court to begin its deliberations, Bill Price, an attorney who represents Samsung, asked the judge to declare a mistrial as a consequence of McElhinny's remarks. She did not oblige his request.

'It was a direct appeal to racial bias,' Price told Judge Lucy Koh, adding that there was 'absolutely no evidence' that McElhinny's theories were accurate.

'I did not say a word about race, and I did not say Asian,' McElhinny said.

According to Bloomberg, other counsel then chimed in.

'We all know what happened,' Price said. 'We all thought the same thing.'

Bill Lee, another lawyer for Apple, defended McElhinny.

'Actually, I'm Asian and I didn't think the same thing,' Lee told Koh, adding that he believed McElhinny was merely pointing out the importance of protecting intellectual property.

Koh denied the motion, but she summoned the jury anew to remind them to not be influenced by any personal likes or dislikes, opinions, prejudices, or sympathy. The judge herself is of Korean ancestry. She is the first Asian-American to serve as a federal judge in the Northern District of California and just the second Korean-American federal judge.

Ars has contacted McElhinny to clarify these remarks, but he did not immediately reply.

Samsung, a Korean company, has apparently vowed to bring back this motion in post-trial filings.