In the Apple v. Samsung patent trial, the lawyers have suddenly started arguing about race. An attorney for the former made a reference in his closing statement to domestic manufacturing. He explained that when he was growing up, he watched television on an American set but now there aren't anymore being made here. In arguing for a high award of damages, he suggested that "our economy will disappear" if we don't protect intellectual property.
The defense team requested a mistrial.
United States District Judge Lucy Koh denied the motion. She did call the jury back into the courtroom to instruct them on the importance of setting aside their prejudices.
She was right. This isn't a racial assertion. It may well be a nationalist one.
But the difference is crucial.
(By way of disclosure, I am writing on one of several Apple computers I own; I also have owned multiple Samsung products. Two decades ago, I worked at the law firm that represents Apple. I consider Judge Koh a friend.)
If Apple had said, rule against Samsung because their products are made by Asians, while our products are made by Caucasians, that would be troubling and potentially the basis for greater judicial intervention. Or if Apple had said, yellow people will benefit if Samsung wins and white people will benefit if Apple wins, that would be about as clear as possible.
The difference between those statements and what Apple's attorney actually said, however, is all the difference in the world. Aside from which, it happens to be true that there are no more television sets being made in the United States (except an upstart company trying to make a go of it outside Detroit of all places -- the exemplar of American industrial rise and fall). The difference is that the statement was about where something is built, not about who builds it.
As it happens, Apple also manufactures in Asia. Moreover, the high-tech light industry that is carried out in America often is staffed by Asian immigrants: the R&D has long been done by Asian engineers, and the assembly in clean rooms by Asian technicians. Apple's law firm has established itself so well in Tokyo that it is venerated as essentially local.
Whether the decision makers are aware of this racial background, the dispute between these tech giants has had an implicit nationalist bent from the beginning.
Judge Koh herself shows how it's impossible to draw lines that map race and nationalism as if they were the same. She is an immigrant. She gives a wonderful personal speech about her late grandmother and how she came to be "Lucy." Having come from Korea, she assimilated as many children do: she watched American television. Her favorite show, which she watched with her grandmother, was "I Love Lucy," with Lucille Ball. She was inspired to take the same name. There is an even funnier epilogue to the story in which she explains her crush on Ball's husband, Cuban bandleader Desi Arnaz -- the Judge herself married a Latino, though she explains her disappointment at his lack of musical leadership talent.
There is a different argument Samsung might still make. Perhaps it would be more successful. The more accurate claim is not that Apple is appealing to race but that their lawyers are appealing to nationalism. Yet the openness of America to people of all backgrounds, combined with its insistence on rule of law applicable to everyone, is exactly what has made it so prosperous.
Follow Frank H. Wu on Twitter: www.twitter.com/frankhwu