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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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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 :)
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?
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
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 :)
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/...
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
8/13/2012 | 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.
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?
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.
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.
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