Samsung Prospects Dim Vs. Apple: What Next, Android Designers?

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.