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Lawyers for Samsung have accused counsel for Apple(s aapl) of making subtle race-based arguments in a trial over smartphone patents, and are calling for the judge to declare a mistrial on the grounds that the jury has been tainted by the remarks.
As Bloomberg reports, Samsung has taken issue with a remark by Apple lawyer about the decline of American TV manufacturing:
Harold McElhinny, Apple’s attorney, spoke yesterday of his memory as a child of watching television on American-made sets, and how because the manufacturers didn’t protect their intellectual property their products no longer exist. “We all know what happened,” he said.
McElihinny countered the mistrial demand by telling US District Judge Lucy Koh, “I did not say a word about race, and I did not say Asian.”
His co-counsel, Bill Lee, added that “Actually, I’m Asian and I didn’t think the same thing,” and argued that McElhinny’s remarks were simply about intellectual property enforcement.
Koh responded by re-reading instructions to the jury that they were not to make decisions based on personal bias. This means that she is not poised to declare a mistrial, though the racial claims could be the subject of an appeal.
The context of the fuss was the closing of a hearing to determine how much Samsung should pay for infringing 14 Apple patents related to the iPhone; a different jury last year found Samsung had infringed the patents, but Judge Koh found they had miscalculated part of the damages.
Apple partisans will likely regard Samsung’s demand for a mistrial as a desperate attempt to shift discussion away from infringement. Samsung supporters, meanwhile, will treat the episode as evidence that the Korean company can’t get a fair shake in Apple’s backyard of San Jose, California.
Last month, in an unrelated proceeding, Samsung suggested that an American trade agency’s decision to lift a patent-related import ban on iPhones, but not on Samsung products, was rooted in nativism.