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8/11/2012
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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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JC000
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JC000,
User Rank: Apprentice
8/13/2012 | 2:44:01 PM
re: Samsung Prospects Dim Vs. Apple: What Next, Android Designers?
This article is ridiculous. The Galaxy III S looks nothing like an iPhone, is not on trial, and will not be pulled no matter what. The fighting is over an old phone.
Tom Mariner
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Tom Mariner,
User Rank: Strategist
8/13/2012 | 2:45:24 PM
re: Samsung Prospects Dim Vs. Apple: What Next, Android Designers?
An Apple victory could possibly be good news for both Samsung and Google. First, the lawyers at Apple would claim bragging rights and demand even stronger restrictions (and bigger bucks). The Google and Samsung folks would be forced into "designing around" the patents with real inventions and that will hand the power to their techies.

Although a normal lawyer can beat a great techie any day on any one issue, they always are dealing with yesterday's ideas, while the techie always wants the best next thing. Apple is already starting to miss Steve Jobs -- he yelled about sinking Google, but he had a unending string of "i" new products to keep the attorneys at bay. If you don't obsolete yourself your competitors will.

Can't wait for the iPhone 5 to see the improvements. Get it? Not a new type of product, just lipstick on an Steve Jobs crew invention. Yo Apple, Bring it ON!
brilliancsys
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brilliancsys,
User Rank: Apprentice
8/14/2012 | 3:51:58 AM
re: Samsung Prospects Dim Vs. Apple: What Next, Android Designers?
That's what I am waiting too.... come back Apple :)
Phildo
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Phildo,
User Rank: Apprentice
8/13/2012 | 2:45:53 PM
re: Samsung Prospects Dim Vs. Apple: What Next, Android Designers?
The whole thing looks like American protectionism using an obselete patent system that they exploit for national interests. A couple a rough drawings, given a patent and nobody can make something as logical as a Rectangle with a tough screen, despite prior art and designs, tv etc. With the patent you do not even have to create the thing you are patenting. The next issue I have an iPAD and a Galaxy tab and they are not even close. The Galaxy is a different shape, color, thickness and runs a different operating system, even the plugs are not the same and the Galaxy does not fit in the iPad leather holder I have. What a traversity of the system if the USA enforce this when UK courts called it for what is worth and Samsung is not as cool as Apple.. and they are right. But as a user I prefer the Samsung as it is faster and I like Android.
Shailesh Banta
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Shailesh Banta,
User Rank: Apprentice
8/13/2012 | 7:34:07 PM
re: Samsung Prospects Dim Vs. Apple: What Next, Android Designers?
Mr. Phildo,

Have you ever tried creativity. I'm sure not. Hence its pretty clear that you do not understand the effort involved in creating something new.

The fact remains pretty simple. 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. And trust me Samsung had all the time (and experience) to do it before. But for the iPhone & iPad, the companies that you so prefer would still be doling out un-amazing, uncreative, dull devices that you would be clicking away on.

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.
Andrew Hornback
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Andrew Hornback,
User Rank: Apprentice
8/14/2012 | 3:06:03 AM
re: Samsung Prospects Dim Vs. Apple: What Next, Android Designers?
Okay, it's time to pick a few nits here.

Your claim is that the Android OS would not (and did not) exist before Apple (and I'm guessing that's with respect to their iOS product). A little research shows that Android, Inc, which was founded in 2003, was purchased by Google in 2005.

A little more research shows that Apple debuted iOS in early 2007 and released it in mid-2007.

Facts is facts, as they say.

Now, I realize that Apple took the smartphone market on, head first, and has had great success with their product line. But, just how long had iOS been in the pipeline at Apple?

A little more historical research here shows that Apple was forced to change from PowerPC processors to Intel processors in their desktop and laptop line back in 2006. This was due to, as I recall, video game manufacturers buying up entire production runs of PowerPC chips - Apple could not stay competitive on pricing in the market place (bean counters made that decision).

Why is this important? iOS is derived from Mac OS X - even Jobs said so himself at the launch. It's my understanding that the development of iOS began coincided with the launch of Tiger, which would put it around late April 2005. Google acquired Android, Inc. less than 3 months later.

Apple has a long history of innovating on top of core technologies "acquired" from other sources. Whether it's Xerox, FreeBSD, XFree86...

They are absolutely within their rights to defend what they create, but to say that these ideas were solely hatched by our friends in Cupertino is not quite true.

Just remember... in 2005 when this storm was initially brewing, who were the big players? RIM, Microsoft, Palm, Nokia, LG... all either dead and buried, on life support or dying a slow, painful death.

Be thankful for innovation, but don't forget where it really comes from.

Andrew Hornback
InformationWeek Contributor
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?
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!
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.
gtigerclaw
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gtigerclaw,
User Rank: Apprentice
8/13/2012 | 5:52:13 PM
re: Samsung Prospects Dim Vs. Apple: What Next, Android Designers?
Have you ever thought that Samsung suckered Apple into this suit.

If a guilty verdict comes in, Samsung will appeal. Meanwhile, Samsung is getting great publicity just as Apple is getting ready to release the iPhone 5.

It also appears that Apple's iPhone sales have hit the wall and starting to flag as with all trend driven products.

At any rate, at the end of the smartphone wars, it's going to be best cost and technology for the consumer and businesses that win the day, and Apple is no competition for Samsung.

I see more Samsung's in the general public than I see iPhones.

This case could drag out for years - because - Samsung can appeal the verdict.
NiteOwl_OvO
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NiteOwl_OvO,
User Rank: Apprentice
8/13/2012 | 8:31:49 PM
re: Samsung Prospects Dim Vs. Apple: What Next, Android Designers?
There is an injunction against Samsung, preventing Samsung from selling Galaxy smart phones in the US market. iPhone sales have slowed because consumers are waiting for the iPhone 5 to hit the market. There is no guarantee that an appeal will be granted, although I believe it will be.
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!
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.
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...
HFE
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HFE,
User Rank: Apprentice
8/13/2012 | 6:27:54 PM
re: Samsung Prospects Dim Vs. Apple: What Next, Android Designers?
It is far too early to judge the outcome of the case. Samsung has 2 remaining options for winning the case. These include the legal tests of "Invalidity" (did the Apple designs exist essentially before the patent date), and "Obviousness" (would one of ordinary skill in the art at the time of the invention have found the Apple designs obvious in light of the prior art).

A more complete reading of the Judge's initial rulings shows that she had serious reservations as to whether or not Apple would prevail on these last two questions. The judge did side with Apple on the question of infringement (the designs do look substantially the same). However, Samsung has not presented it's case yet on either invalidity or obviousness and a finding for either position would invalidate the Apple patents entirely regardless of whether the Samsung products are substantially the same when compared to Apple's products. To be clear there remains significant due-process before the jury decides the outcome.

The fact that Samsung's attorneys failed to proffer their MOST IMPORTANT prior art reference on time and had it rejected by the Judge does NOT help Samsung on the question of invalidity based on prior art. That was a huge mistake on Samsung's part. Possibly the critical mistake in the entire trial. In this regard Apple does have a strategic advantage moving into the next phase of the case.
jasonscott
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jasonscott,
User Rank: Strategist
8/13/2012 | 7:54:38 PM
re: Samsung Prospects Dim Vs. Apple: What Next, Android Designers?
I agree completely: Samsung proving Apple's patents invalid due to prior art or obviousness may be necessary for it to win the case.

Unfortunately (as so many folks on here have suggested), non-functioning tv and movie props that were never patented are not deemed "prior art." They're no different than a painted backdrop of Paris in a cheesy '50s movie: they're set decoration.

As for obviousness, Apple does have a pretty strong argument that its designs weren't "obvious": No one had released a device that looked like the iPhone until Apple did. Then, suddenly, everyone had iPhone-like devices. But not before. That speaks volumes about what was obvious and what was not.

It's unimaginable how Samsung could have botched submitting evidence of its own prior art, if that prior art actually existed and was as legitimate as the company would have us believe. It's one thing to put out a press release claiming to have had prior designs ... it's quite another to have actually had them and to be able to prove it. Could it be that Samsung didn't and can't?
Ray
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Ray,
User Rank: Apprentice
8/13/2012 | 10:12:14 PM
re: Samsung Prospects Dim Vs. Apple: What Next, Android Designers?
Speaking of iPhone like devices...Have you seen the LG Voyager, which was released before the iPhone was? Obviously the technology that was built in the device was quite different, but the design was strikingly similar. Starting from the chrome metal frame to the icon arrangements. For God's sake, the entire MAC OS UI was stolen from XEROX. How does one point fingers, when they themselves "borrowed" and made billions off of other peoples designs.

Select the link below and you will see a side-by-side of the LG Voyager and iPhone:

http://farm3.staticflickr.com/...
AvidUser
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AvidUser,
User Rank: Apprentice
8/13/2012 | 6:51:13 PM
re: Samsung Prospects Dim Vs. Apple: What Next, Android Designers?
Make better products and stop wasting time in a "pissing contest" of egos that will only enrich attorneys and increase legal costs to both sides. We pay for this as the ultimate consumers. Get back to your core competancies of making quality products that people want. Properly protect your ideas (intelecual property) and use basic sense when it comes to determining the difference between a degree of a bevel on an edge. The first one to make something gets the lead advantage of bringing it to market first and if they make it best the markets will reward them by embracing the product. Stop trying to debade/decide how many "fairies" can dance on the head of a pin.
lbell284
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lbell284,
User Rank: Apprentice
8/13/2012 | 6:59:49 PM
re: Samsung Prospects Dim Vs. Apple: What Next, Android Designers?
It will all be over in about 2-3 years or so. Apple lost S Jobs and he was the driving force in that company. They don't have anything now or coming out soon that hasn't already been surpassed by more up to date tech from other companies in all the areas they are in. The only thing that saved them going out of business to begin with was the ipod.
They added cell phone circuitry and made a phone out of it and then expanded it to make a pad. Nothing really innovative in either device that wasn't already on the market by someone else.

They have nothing left to work with. I don't own an Apple or Samsung anything but don't have anything against either company either. I think they both make nice hardware but it's very easy to tell apart. Anyone who can't see the differences is either blind or stupid.

Who ever it was in the patent office that granted that description patent should have been fired and the patent invalidated. There was already a number of products on the market before they got it that was a flat rectangle with a glass screen and rounded corners. Nothing was new about it at all other that it runs apple software instead of some version of windows like most have run since pads of any type hit the market many years ago. Now they have Android also as a competitor.

They can't sue all their competitors out of business no matter how hard they try especially Chinese companies because most of them don't give a rat's butt about US patents. They have proved that for many years now.

This isn't the 1970's- early 1980's with apple 2 and the other small home computers being the only things available. Their same old business plan of suing all competitors off the map isn't going to work anymore. They keep causing Samsung problems and eventually the company will tell them to have someone else make their phones and pads. I'm going to fall out of my chair laughing when that happens because Apple will the up the proverbial creek without a paddle as no US company would put up with their ridiculous requirements such as getting up a whole crew of employees in the middle of the night to make minor changes on a device. US workers will them Apple where they can stick their phones if they even tried that.

Apple seems to be desperate and that doesn't make a lot of sense for a company with over a billion dollars in the bank. They could survive the next ten years doing nothing. At the moment they don't seem to have any new and wonderful products to introduce anymore anyway. Their TV is nothing special at all.

All they have done now for the last few years is upgrade what they already have out there and that isn't going to keep on working for them. The Iphone and Ipad are both rapidly loosing their 'cool' factor with the general public with all the other nice phones and pads available now and more seemingly showing on the market almost monthly.
hoohah
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hoohah,
User Rank: Apprentice
8/13/2012 | 7:27:43 PM
re: Samsung Prospects Dim Vs. Apple: What Next, Android Designers?
*sigh*: "Xerox Park"?!? "Xerox PARC" was the Palo Alto Research Center.
Don108
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Don108,
User Rank: Apprentice
8/13/2012 | 9:18:35 PM
re: Samsung Prospects Dim Vs. Apple: What Next, Android Designers?
Exactly. This shows a lack of research and editing. Further, it is NOT true that Apple, "lost that case [with Microsoft], 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." Apple PAID Xerox for the right to use the interface. Apple lost because they had an agreement with Microsoft that allowed Microsoft to copy some of the ideas. Apple foolishly thought this applied only to certain concepts. Microsoft realized it gave them a free ticket to do anything.

Apple has better lawyers today and designs better contracts.
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?
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!
Ray
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Ray,
User Rank: Apprentice
8/13/2012 | 10:15:12 PM
re: Samsung Prospects Dim Vs. Apple: What Next, Android Designers?
Apple stole from Xerox. Samsung stole from Apple. Someone else will come in the game, take Samsung's idea, and improve on it (steal it).

Evolution :)
brilliancsys
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brilliancsys,
User Rank: Apprentice
8/14/2012 | 3:49:12 AM
re: Samsung Prospects Dim Vs. Apple: What Next, Android Designers?
As it seems this patent war would continue for long time, so one side they think it is to save for their intellectual properties and innovation, but another side, it seems it is stopping another one to make better products or services. Does it really a part of innovation?
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.
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
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