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Apple v Samsung: the nine people who will decide

Apple and Samsung are in the midst of one the most closely-watched smartphone cases so far, with billions of dollars at stake – and it is nine ordinary Americans who will decide the tech companies’ fate in the latest battle

They are perhaps the most important players in the Silicon Valley showdown between Apple and Samsung - the Santa Clara county (home to Silicon Valley) jury who will be handing out the verdict.

Nine Americans will fill the jury benches in the Apple v Samsung trial

All jurors have been selected, and reports indicate they include seven men and two women, two of whom are engineers. There were originally three women, but one asked to be excused Tuesday, leaving nine rather than 10 on the panel.

They are educated: Juries in San Jose are among the most well educated in the country, said Ronald Beaton, a senior jury consultant with Trial Graphix. Beaton has selected about 200 juries in the venue, and said panels there are usually around 60% to 80% college educated. The average across the country is 25% to 30%. “You don’t find a more educated panel this side of Manhattan,” said Beaton.

But that doesn’t necessarily mean much in a case like this. Much of Apple’s case depends on proving that the look and feel of its products is distinctive enough to warrant Apple’s design patents, which are notoriously hard to uphold. “Out of around six design patent cases I’ve picked juries for, the plaintiff succeeded in defending its patent in only one of them,” said Beaton.

However, cases such as Egyptian Goddess v Swisa and a design patent win for Crocs at the ITC have made the landscape a bit brighter for design patents in recent years.

Nonetheless, due to the number of products involved and overall complexity of the case, Beaton said it is likely to come down to just one or two emails or documents presented.

“Especially in complicated cases like this, emails are like windows to the soul – even with a smart jury, cases are sold to juries like houses - on memorable features that stick with you. It’s going to come down to emails and documents that clue us in to what Samsung was thinking when designing these devices.”

They are probably Democrats: Because San Jose juries are typically Democrats, Beaton said it isn’t likely that they’ll have sympathy for Samsung from a free market, fair competition perspective.

But he also said it isn’t a sure thing that they’ll favour Apple. “You’d think this is Apple’s backyard and they have an advantage, but it’s also the backyard of all its competitors, and there are lots of people who don’t like Apple here,” said Beaton.

They understand IP: One thing that may be in Apple’s favour though is that Santa Clara County residents tend to understand the value of IP protection on a more personal level than most Americans. “The longer you live in [Silicon] Valley, the more you understand how important it is to protect innovation. It gets into your head.”

Guiding the jury to its conclusion will be Judge Lucy Koh , who hasn’t been a judge very long, but is a former patent litigator with McDermott Will & Emery.

Apple’s lead counsel is Harold McElhinny of Morrison & Foerster, who recently scored a multimillion dollar win for Pioneer against Samsung.

Samsung’s counsel Charles Verhoeven of Quinn Emanuel Urquhart & Sullivan has become a champion for Apple opponents such as Google.

But for all the lawyer’s training and experience, it is an educated, IP-savvy jury who will have the last word.

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