September 2, 2012

• Apple vs Samsung verdict

  Whew!  *deep breath*  This could be a long one, but I’m going to try, try, to be reasonably lengthy on this one. 

  I’ll put this disclaimer upfront.  Although Apple makes good products, I am no lover of Apple products, so I might be biased against Apple.  Let’s also put in the fact that I’m Korean and like Samsung products out there too.

  While I haven’t been losing sleep over the ruling in Apple’s favor, it’s been bothering me.  I am not a lawyer, despite the law shows that I watch on TV, so I sure that things did not play out as they do on Franklin and Bash, but more so maybe with Suits.  I’ve tried to do some due diligence before posting this, so bear with me here.  The conclusions that I’ve come to are the following:

   

  1) There is confusion on what design patents, utility patents, and trademarks are.

  2) Samsung indeed may have infringed on some patents, but not as originally ruled by the District court in California.

  3) On the whole, Samsung appears to have infringe on tablet design, but smartphone design are open to interpretation.  The “bounce back” utility patent seems to be infringed upon.

  4) The trial itself was biased and potentially compromised.

  5) The court and Apple do not give adequate credit to the consumer in being able to differentiate consumer products.

   

  In seeking opinion, I asked a lawyer friend for some information and was pointed to a website frequented by patent law professionals….or at least it seemed that way.  The basic questions of infringements can be found here in the appeal papers filed after the district court’s initial ruling:

  http://www.patentlyo.com/patent/2012/05/guest-post-by-sarah-burstein-apple-v-samsung.html (there is also a link on that page to the actual filing)

  And here is a primer on what design patents and trade dress are supposed to be:  http://groklaw.net/article.php?story=20120814110227662

  And here is the ruling itself: http://arstechnica.com/tech-policy/2012/08/jury-returns-verdict-in-apple-v-samsung/

  Apple appears to be arguing on two fronts.  One on design and one on functionality.  Both are supposed to clearly represent something unique to Apple.  The test for design patent infringment is: “if, in the eye of an ordinary observer, giving such attention as a purchaser usually gives, two designs are substantially the same, if the resemblance is such as to deceive such an observer, inducing him to purchase one supposing it to be the other, the first one patented is infringed by the other.” Gorham Co. v. White, 81 U.S. 511, 528 (1871).  The fact that Samsung is a major competitor and owns 24% of the US market vs Apple’s 31% seems to have prompted Apple to seek litigation.  Worldwide, the numbers are reversed in Samsung’s favor 30% to 17%.  Furthermore, Samsung accounts for 44% of all Android sales (see http://arstechnica.com/apple/2012/08/apple-owns-us-smartphone-market-while-samsung-dominates-worldwide/).  I doubt that Apple would litigate if it were not for the success of Android and Samsung, and as failed injunctions of Samsung products testify, the delay in seeking an injunction from 2007 til now suggests that only recently, after seeing the success of a competitor, did Apple seek litigation.  The general feeling I get here is that in “slavishly copying” the iphone, Samsung has created a phone that infringed on an Apple product which creates a “unique user experience.”

  On design: There is much debate on what is considered prior art as a reference design.  For instance, the Federal Court of Appeals counters the District level ruling that the ’087 patent (a rectangular smartphone consisting of a large rectangular display
  occupying most of the phone’s front face. The corners of the phone are rounded) WAS anticipated from a prior Japanese design, meaning that the design of Apple’s phone was indeed “novel,” and could be infringed upon.  The difference?  A raised bezel that differentiates it from a entirely flat front surface.  However, the test for novelty is taken as a whole, and not “points of novelty (see above primer).”  The Appeals courts decision is curious since Apple essentially made its prosecution on the fact that on the whole, Samsung phones look “slavishly” like iphones.  Samsung took great pains to point out differentiating factors in its design, but failed to convince the jury that it was different.  No novelty.  Apple’s newer ’677 patent however, does not have the raised bezel, rather an entirely flat front.  Why this patent was not challenged on grounds of prior art is unknown.  Logically, the rulings between the ’087 and the ’677 should be reversed in reference to prior art.  Regardless, Samsung infringed on one of those design patents if argued as a whole, but only if the ’087 patent stands up.  What I do not see here is how someone can argue both a gestalt and a detail orientated approach to design.  Much of this argument also applies to the tablet portion of the infringement case, Apple’s ’889 patent.  The difference here?  Two protrusions at the top of a prior art image as well as a non-flat front.

  Utility:  I have less to say on utility since there appears to be less debate on infringement.  Samsung could not establish the invalidity of the ’381 patent because the potential reference design was deemed functionally different.  That said, Apple sought damages based on functionality of the bounce back feature, but was denied because it was not the driver of customer purchases.

  On Bias:  After reviewing juror comments after the case was decided, there appears to be potential bias against Samsung with influence from foreman of the jury who holds patents (ie he is more likely to uphold patent law despite “shodiness” by the USPTO).  He has been criticized for offering his own interpretation of patent law and not what he was instructed to do by the court.  See http://www.groklaw.net/article.php?story=20120828225612963.  For a Youtube video of how the jury reached the verdict you can go here: http://www.youtube.com/watch?v=c9cnQcTC2JY.  Not withstanding the above, there are some who do not think that there was any bias.

  On Consumer purchases:  This part is purely subjective.  I’ve talked to many users of Apple products.  Sure some purchases are made because it looks “cool,” but most buy them because they work much better than the competition.  Apple’s evidence showing customers returning Galaxy Tabs because they thought it was an ipad is ridiculous.  Unless the salesman is an idiot, the store has mislabeled a product, or shipped an incorrect one, a customer doesn’t return a product because they thought it was another.  It boils down to how it functions.  It might not work like an ipad because you know what?  IT ISN’T AN ipad!  The informed customer knows the difference between the two.  The icons are different, the “points of novelty” are different.  In other words, I don’t think the design infringements pass the ordinary observer test.

  The problem with this lawsuit is that it ties together functionality, design, and the success of the two.  Apple has clearly done well in this arena, but is crying foul now because it is falling behind in sales.  Where were their cries when no one believed that any technology could supplant the i-anythings?  How about all the would be i-phone killers that looked like the iphone but wasn’t?  While design may have played a cool factor, functionality created the user experience.  That’s what people are buying.  You want aesthetics?  Buy case for your non-iphone, and at the same time you can add that bezel to make it look like an iphone.  But you know exactly what that phone is and isn’t. 

   

  • 8:57 pm
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