FORTUNE -- A certain amount of dissembling is part of the art of lawyering. But even FOSS Patents Florian Mueller, in his new role as Apple (AAPL) scold, agrees that Samsung went too far in its opening arguments.
The issue in the first week of the new Apple v. Samsung trial is what Apple meant by the "undisputed fact" in the attached quote, taken from a joint pre-trial statement.
Apple was willing to admit that it didn't "practice" -- or "use" -- three claims in three of the five patents it alleges Samsung infringed. It did this, according to a Samsung brief, to avoid opening the door to a challenge of the validity of those patents.
In its openings remarks, Samsung took that admission and ran with it. It told the jury eight times, in eight different ways, that Apple placed so little value of patents '959, '414 and '172 that it didn't even use them:
"Apple admits that three of the five patent claims that it is suing on were not in that iPhone and have never been in any iPhone since."
""The way you know that Apple thinks that's a nuisance, because in the iPhone, they don't use that ['172] patent, never have. Have never used it. The iPhone does it differently."
"So in other words, the survey participants are told, 'you either use Apple's ['414] patent' which, again, this is another one, Apple doesn't use this, it's not in any iPhone, never has been."
"But, again, this search capability that, you know, they claim to have a ['959] patent on, it's not something that they have ever used. It's never been done on the iPhone."
"iPhone doesn't even use four out of these five features."
"Even though most of these patent claims are not valuable enough for Apple to use itself, it claims that Android uses them and that this causes customers to buy Samsung phones. And if Samsung didn't have these features, they'd sell more Apple phones even though a customer looking for four of five of these features couldn't find them in an Apple phone, they don't use them."
"So what are the damages that Apple seeks for use of its own particular form of word correction, which it doesn't even use …?"
"Apple itself doesn't even use four of the five. They agree as to three. We have to prove to you the fourth, the slide to unlock. You can't get those features by buying an Apple product. They're not in a product. They don't use them." [Emphasis added.]
The jury may be forgiven, after all that, if it concludes Apple never used any part of the three patents at issue. What Samsung didn't tell the jury is each of those patents contains not one or two but dozens of claims.
In other words, Apple admitted that it didn't use one part of each patent. The rest -- as far as we know -- ARE being used.
Below the fold: The three claims that Apple admitted that it does not practice, in context.
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