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8/11/2012
03:12 AM
Charles Babcock
Charles Babcock
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Samsung Prospects Dim Vs. Apple: What Next, Android Designers?

"The handwriting is on the wall" that Samsung will probably lose the Apple patent infringement suit, design patent expert Christopher Carani says.

"Oh, I don't like that attorney," Lea Shaver, a young associate law school professor, reacted to the hard-nosed questioning by Samsung attorney Kevin Johnson as he grilled yet another Apple expert witness in a San Jose, Calif., courtroom Friday.

It was just another day of taking testimony in the Apple vs. Samsung patent infringement trial in U.S. District Court.

Johnson is one of the tough guys in the good cop/bad cop act that constitutes the Samsung legal team at the trial. John Quinn is another bad cop--he released to the press documents that the judge had ruled inadmissible as evidence on the opening day of testimony. The judge may later sanction him for releasing the documents and saying the jury ought to be able to see them.

Another member of the team, Charles Verhoeven (a.k.a. Charlie V.), is the opposite. He's the always respectful, smooth operator who--more than any other attorney in the courtroom--seems to most frequently enlist the jury's sympathies. Both sides of this act will need to perform at perfect pitch if Samsung is to have any hope of escaping unscathed from this trial. It's far from clear that it will.

Samsung has countersued over Apple's use of its own patents. Friday, Apple's attorneys revealed that Samsung had attempted to open a discussion of licensing Apple's patents, but after it had launched its Galaxy line of smartphones, which are accused of infringing Apple's rights. Apple proposed stiff terms and the two parties couldn't reach an agreement.

[ Want to learn more about how Apple is building its case that Samsung produced a look-alike smartphone? See Apple Design Expert Confused Samsung for iPhone. ]

None of that is going to count for much, now that the disagreement has come to blows. Patent law is what it is, an antiquated system for identifying and protecting designs and innovations from direct copying by competitors. The only test of whether a design has been copied is a set of fairly generic, black and white drawings filed with the patent application. If an accused party's device can be lined up as "substantially similar" to those drawings, the patent has been infringed.

In 1988, Apple sued Microsoft, saying it had copied key ideas of the Windows user interface from Apple's Macintosh. It lost that case, in part because Steve Jobs had admitted he had gotten ideas for the Mac from a demonstration of a visual user interface at Xerox Park; also, Apple had no GUI patents. By the time Apple was ready to launch the iPhone in 2007 and iPad in 2010, it had learned its lesson. It obtained 200 patents covering the products' design and user interface details.

Now the only thing that remains, as the platoons of blue pinstriped lawyers battle it out in San Jose, is how much wiggle room is left for Samsung before it's immobilized under the patent infringement net. The early decisions in this case by District Court Judge Lucy Koh cast an ominous shadow over Samsung's prospects.

Before the jury was seated, Koh had ruled in favor of an Apple request for a preliminary injunction against further sales of Samsung tablets, agreeing that Apple might be irreparably harmed if it had to wait for the outcome of the trial. The burden of proof needed to be strong for the judge to take such a stance, but she did, saying that Samsung's Galaxy Tab 10.1 is "virtually indistinguishable" from Apple's iPad in her ruling June 26. At the preliminary hearing last October, she stated that the Tab 10.1 "looks virtually identical" to the iPad.

Those are damning words in design patent litigation. In theory, a charge of copying can be upheld with only "substantial similarity," said Christopher Carani, chairman of the American Bar Association's design rights committee and former chair of the American Intellectual Property Law Association committee on industrial design, in an interview. "Judge Koh appears to be of the mindset that the accused Samsung tablet easily meets the 'substantially the same' infringement standard--so much so that the facts lead to one and only one conclusion--infringement," Carani said.

Furthermore, on another issue on which Koh retained doubts--regarding whether any prior art or preceding implementations of iPad-like tablets existed--Apple wasn't content with her refusal to rule in its favor and appealed to the U.S. Circuit Court of Appeals. A three-judge panel overruled Koh on that issue, and one judge said that its review "leads to one firm conclusion--that an injunction ... should be entered, and should be entered now."

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ANON1237925156805
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ANON1237925156805,
User Rank: Apprentice
8/15/2012 | 11:40:57 PM
re: Samsung Prospects Dim Vs. Apple: What Next, Android Designers?
I forgive folks for not remembering IBM Simon. But who can forget the great apps for the Palm that one could buy on SD drives. I was prodigiously happy with my encyclopedia Brittanica long before Wiki grew up. Palm had a wi-fi card 15 years ago, anticipating the future and allowing slow slow web access.

The Palm Treo carried this tradition forward and if Apple hadn't entered the game Palm would surely have moved even more aggressively in the direction of online apps. So sure, Apple wasn't first. They didn't build the first mp3 player either nor assemble the first online music service.

Starting with OS X then the iPod then iTunes, it created all the components and it synergized them into a device that was a genuine game changer, with cutting edge design and in its app store a brilliant business plan that unleashed the power of free enterprise.

Sure Google had the smarts to buy Android but figuring out how to apply its potential was not obvious, and there was not a word from Google about mobile devices back then. Maybe such an idea was percolating but it wasn't cooked. RIM in the office and Treo for the consumer were showing the way, not Google.

Meantime the CEO of Google sat on Apple's board for two years while the iPhone design was completed and released. He watched it catch fire and saw the birth of the app store. He didn't recuse himself from iPhone related meetings until after the Android mobile OS was announced.

Does anyone really think that there was no influence there? Don't be naive. Schneider had a much closer-if perhaps less technical-look at the iPhone than Apple engineers had in their one day at XParc. So for sure the way Android took shape was colored by what Apple did with its iPhone.

That's fair enough. Imitation is the sincerest form of flattery. But close copying is a different matter and that's what's being argued here. I'm not a fan of this trial but I do get that Apple has a right to ask those it influences to come up with their own distinctive design elements.

Microsoft of all organizations has shown us that it's doable. Whether Windows 8 is in time, whether it flies or flops, Microsoft has incorporated the key components of what mobile users are interested in without slavishly copying anyone.

Android is flexible enough to allow mfrs to be quite creative. They should do just that. Samsung has shown that it's a leader in design as much as in engineering with some of its other products. Whether or not they prevail here they should take this as a message to leapfrog Apple in every way rather than imitate it.
Sycus
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Sycus,
User Rank: Apprentice
8/15/2012 | 12:12:26 AM
re: Samsung Prospects Dim Vs. Apple: What Next, Android Designers?
How is it that I just ordered a Samsung Galaxy Nexus a couple of days ago, which I now have in my hands? Straight from Google. This link title says it all...

http://www.consumerelectronics...
cbabcock
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cbabcock,
User Rank: Strategist
8/14/2012 | 6:48:37 PM
re: Samsung Prospects Dim Vs. Apple: What Next, Android Designers?
Justice would be served in this case if examiners in the U.S. Patent Office who approve software patents had to spend their summer vacation sitting through this trial. Expert witnesses are being paid $550 or $800 an hour, sometimes for 400 hours of work, to take sides. The lawyers then argue endlessly about their conclusions. Too much prior art never comes to light in the examination phase of an a patent application; too many patents get granted. Charlie
AustinIT
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AustinIT,
User Rank: Apprentice
8/14/2012 | 5:33:47 PM
re: Samsung Prospects Dim Vs. Apple: What Next, Android Designers?
Bonus points if you know what the acronym stands for. No cheating now by looking it up!
NiteOwl_OvO
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NiteOwl_OvO,
User Rank: Apprentice
8/14/2012 | 3:35:00 PM
re: Samsung Prospects Dim Vs. Apple: What Next, Android Designers?
Incorrect, Apple won an injunction against the Samsung Galaxy Nexus line of smart phones in addition to the Tab. Apple is expected to go after additional injunctions.
NiteOwl_OvO
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NiteOwl_OvO,
User Rank: Apprentice
8/14/2012 | 3:32:48 PM
re: Samsung Prospects Dim Vs. Apple: What Next, Android Designers?
Where is your source for this fiction?
vagabondx
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vagabondx,
User Rank: Apprentice
8/14/2012 | 3:11:19 PM
re: Samsung Prospects Dim Vs. Apple: What Next, Android Designers?
Incorrect, Samsung is freely able to sell its smartphones anywhere in the US. I just purchased a Galaxy SIII last week. The only device they aren't able to sell currently was last year's Galaxy Tab 10.1 which Samsung doesn't care about. They have already released their much improved model this year and I just saw it the other day on sale at Best Buy. Samsung is gaining market share over Apple every single day regardless of this trial. This was just a desperate move by Apple to delay the inevitable. They are history by the end of next year. With Android at 56% marketshare and Apple at less than half that, its game over boys!
vagabondx
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vagabondx,
User Rank: Apprentice
8/14/2012 | 3:00:02 PM
re: Samsung Prospects Dim Vs. Apple: What Next, Android Designers?
Incorrect! "Apps" is just short for "Applications" and date all the way back to 1994 with the IBM Simon. The phone also hard 3rd party App support. In 2002 Palm OS Treo was released with downloadable 3rd party "apps" as well.(I owned this phone myself) So this game was started FAR before Apple got involved!
Phildo
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Phildo,
User Rank: Apprentice
8/14/2012 | 10:12:25 AM
re: Samsung Prospects Dim Vs. Apple: What Next, Android Designers?
snip[ Have you ever tried creativity. I'm sure not. ]
Would 32 years programming with constant software in the field, many products for that entire time give me a clue... yes I have earned my right to speak...and to know something about the process.

snip[ Hence its pretty clear that you do not understand the effort involved in creating something new. ]

Sure do and I am my team have created a lot of new stuff, still do and I do not have the luxury to use such bullshit patent system.. totally for the elite.. for control of innovation. There is so much prior art and a changing technical market like capacitive screens to claim pinch zoom, swipping etc I was doing this on old Palm W devices years and years before Apple, registered all this stuff.. because no one had the wisdom or audacity to do so. Lawyers love this stuff.

snip[ The Galaxy Tab and its Android OS that you seem to love so much would not (and did not) exist without the creative brilliance of the folks at Apple. ]

Not true. Look at PhotoSynth and pink zoom, image rotation and manipulation, look at touch screens passive and capacitive none of them Apple inventions. Apples invention was how to make money via a financial store.. this is the genius aspect. Silly old Palm and Nokia jsut could ge tthis part to work.

snip[ companies that you so prefer would still be doling out un-amazing, uncreative, dull devices that you would be clicking away on.]

Galaxy SIII and other phones have moved well beyond the Iphone which is looking very dated.
We write Apple systems for Iphone/Ipad and Android and MS.. I think we know what works.

snip[ So yes, for all the trouble that goes into it, a creative company has all the rights to defend its creations. Its got absolutely nothing to do with American protectionism or exploiting national interests. Crap. ]

Sorry the patent department, the legal depart is what keeps a lot of corporates alive to kill off fresh ideas from smaller players, they simply get sued out of existance.

R&D in the software industry has always been Rip off and Duplicate and let the lawyers sort it out. You do not just have to develop something innovating you got to know how to play the legal system as well.
brilliancsys
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brilliancsys,
User Rank: Apprentice
8/14/2012 | 4:00:51 AM
re: Samsung Prospects Dim Vs. Apple: What Next, Android Designers?
I agree with you Andrew, but another points such as Apps, which never existed in the past in dictionaries, even in the early 21st, but Apple analyzed the browsing experience and decided, instead of doing everything on Google search, just make a dedicate app for that particular application, such as Movies, Restaurant, Travel, Transport etc. so they made apps and invited developers to use their ideas and talent to make better phone experience. Now this app market is so popular among users that they need anything to search, instead of going to Google it, they think to find an app for that particular task.

So the question is the idea of App was not from Google, neither from Android, I think, Apple was the beginner in this new era?
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