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8/16/2012
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Samsung Attacks 'Unique' Features Of Apple iPhone, iPad

In patent case testimony, Samsung expert witness says iPhone's snap back feature was used in other tech products long before Apple implemented it.

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First a projector on a post with a heavy weight at the base was brought out. Then the touch sensitive table. Then the chairs. And finally the laptop to which all were attached. Jacobs could barely keep from smirking, you want to compare all this to the sleek, compact iPhone?

After van Dam, Apple attorney Rachael Kravens repeated the process. In her cross examination of van Dam, she asked that the entire DiamondTouch apparatus be assembled once again. There are differences in how the lighted table top operates, with sensors beneath the surface detecting human touches thanks to the projector's shining light, and the capacity resistance principle in the iPhone touch screen.

Kravens asked van Dam to confirm that DiamondTouch was a touch-sensitive computerized system. "Absolutely," he responded. "In every way, that is a touch-screen display."

The point had been made, despite the expert testimony, that the DiamondTouch seems to have little in common with the iPhone. But there are still risks to Apple in this exchange. There's no disputing that DiamondTouch demonstrates some form of snap back. Whether it will be judged by the jury as "prior art" to the iPhone's is another question.

But there is another issue lurking in the background as well. When applying for a patent, it is the responsibility of the applicant to cite all know cases of prior art. They are then listed on the front of the patent, if it's issued. There's no reference to DiamondTouch on 381.

[ Is the design of screen icons a sign that a product is unique, or just a standard way of showing an app? Read Samsung Designer Defends Copycat Icons In Apple Case. ]

Apple, of course, can claim that DiamondTouch was a little known system, which, considering its user interface, might be deemed to have enjoyed a more modest success than the iPhone. If you don't know about it, it's hard to list it as prior art.

But Bogue testified it was his job to give away DiamondTouch's to universities and he shipped 100 units. He came up with catchy applications, like Fractal Zoom, to demonstrate DiamondTouch in MERL's open lobby. Any visitor could play with it. The lab's receptionist was trained to steer visitors toward it as they waited for their appointments. In January 2005, or well before the iPhone, it was shown all day in January 2005 at the New School for Social Research in New York, with Senator Bob Kerry participating in its demonstration.

In addition, Bogue went on the road with a unit to demonstrate it to anyone who was interested. That was in 2005, and one of his stops was Apple in Cupertino, Calif. An engineering team watched his demonstration and asked questions. Bogue had not asked any Apple employees to sign a non-disclosure agreement. But Apple had asked him to sign an agreement to prevent any information he provided from becoming confidential.

The intricacies of prior art and who did what, when may prove beyond the grasp of the jury, which has no practice in deciding patent issues. But the lack of any reference to DiamondTouch on Apple's 381 patent in this context may also go down hard with them--for some of the same reasons.

Apple will argue that DiamondTouch and the other prior art--van Dam also pointed out the Launch Tile application on the HP iPaq handheld device as using snap back in its user interface--do not achieve the same effects of snap back on the iPhone and iPad. But the fact that knowledge of snap back was prevalent at the time Apple applied for exclusive ownership of the feature may be more difficult to explain away.

Judge Lucy Koh may have had that in mind when she warned, "There is risk to both sides, if this case goes to verdict." She urged the two sets of attorneys to call on the CEOs of both companies to meet to try to resolve their differences one more time before she has to issue instructions to the jury, likely to happen after closing arguments next Tuesday.

Those instructions, she had quipped at the opening of the day's session, "will put everyone in a coma." But that might just be another way of saying, once it's handed to jury, neither side will have any power over the outcome. No one knows how the jury will reason together or what it thinks at this stage of the trial.

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