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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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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.
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.
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.
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.
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.
Tom Mariner
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!
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.
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