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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.

Judge Koh's willingness to find the Samsung product "virtually identical" to Apple's and the willingness of the Circuit Court to insist upon an injunction are two heavy blows to Samsung's case, said Carani.

"The one thing that would spare Samsung is if they introduced very close prior art," said Carani, and indeed Samsung has been maneuvering to talk about one of its own phone designs, as well as an Apple design concept based on a verbal description of a modern phone by a Sony designer. The latter would illustrate how Apple borrowed ideas from another major manufacturer to come up with the iPhone.

But Samsung failed to produce evidence of this prior art during pretrial evidentiary proceedings. "Samsung failed to disclose these designs in a timely manner prior to the court's discovery deadlines. We don't know why they missed the deadlines," he said.

And that means "the handwriting is on the wall" as to the outcome of the case, as far as tablet design patents are concerned, Carani said. How much of this spills over to infringement charges on the iPhone is not clear, but an open-and-shut case against Samsung's tablet would not portend well for that additional portion of the case, he said.

What's at stake is the design of many smartphones using Google's Android operating system. They are the main competitors to the iPhone, and Samsung has risen to become the world's largest seller of smartphones, with its Galaxy product line in all its variations.

In the U.S., Apple has captured 31% of the smartphone market. Samsung leads Apple worldwide, but in the U.S. it trails at 24%, while HTC and Motorola, whose sales have been declining, have 15% and 12% respectively. LG brings up the rear with 6%, according to consumer market researcher NPD Group. The Apple/Samsung position atop the market is more striking when you consider that their sales between the second quarter of 2011 and second quarter 2012 rose 43%, while all other brands fell 16%.

If Samsung gets tagged with a guilty verdict in this trial, Apple's main competitor will have to give up its successful Galaxy line of products. The Galaxy III S, for example, launched in June has sold 10 million units in its first two months of existence, which makes it the fastest selling smartphone in the world. (Galaxy phones are also branded under the names Fascinate, Mesmerize, Ace, Epic, etc., depending on the carrier.) Whatever alternative Samsung decided to bring out would have "to stay pretty far away from Apple's intellectual property," said Carani.

That means its phones will have to look for a design that is different from the iPhone's minimal ornamentation, flat face, black glass, and polished steel bezel, as well as some elements of the iPhone's touchscreen user interface, such as ability to snap back to the center of the object when a user reaches the edge of an electronic document. Alternatively, it might pay the terms that Apple demands.

An Apple victory will "further strengthen the Apple franchise and minimalist design," said Carani, giving the company more time to exploit its design innovations in a market that appears ready for lower-priced alternatives.

It's easy enough to come up with designs that look different from Apple's, but how soon can the competition produce a winning design? And if they can do so, why haven't manufacturing veterans like Motorola, HTC, and Samsung already done so?

Eventually, the Apple design that Judge Koh and the Circuit Court of Appeals concede is distinctive will become less so. "Design rights are broadest in the early stages of the product," said Carani. The day will come when the elements of the iPhone will have appeared one way or another in other products, without having copied the whole look. The process gradually waters down the uniqueness of the original design.

If, on the other hand, Samsung somehow escapes this trial unscathed, it's hard to see how the iPhone's design elements won't be produced and reproduced in many variations on a grander scale, especially by Samsung. The iPhone will have set a standard that the rest of the industry has proven eager to imitate. A narrow set of generic black-and-white drawings are all that stand between Apple and the floodgates of imitation.

The jury knows nothing of Judge Koh's preliminary injunction against Samsung, and will not learn of it and the Circuit Court's decision until after the trial. Meanwhile, Charlie V., the good cop on the Samsung legal team, keeps making wily appeals to the jury's "common sense" to avoid being netted by those design patent drawings.

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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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