Verhoeven started there. Apple's graphic of Samsung's models was highly selective, he said. The square-ish phones Apple showed Samsung producing before the iPhone were a fraction of its inventory. In fact it had many designs in play, including several phones with rounded corners, before the iPhone was launched in 2007, Verhoeven said, showing a crowded placard with many Samsung designs.
Verhoeven attacked Apple's design patent claims, realizing Samsung is most vulnerable there and $2 billion of Apple's claims against Samsung will come from damages collected on design patents, if they're held to be infringed.
He cited the many small differences between an iPhone and a Samsung phone, even though they might look similar. Apple compares its home screen to the Galaxy's application screen, each showing a four by four grid of colorful icons, executed as squares with rounded corners. The Samsung phones don't have any equivalent icons for seven that are found on the iPhone, he pointed out. Although both phones appear to have similar sized and shaped icons, "You're not telling me Apple owns colorful icons and the right to arrange them in rows and columns," he said.
The two that are similar are the Ma Bell phone handset, formerly used as a symbol on public phone booths, with a green background, and a clock icon, which is a different color on the Galaxy. "Apple doesn't own green for go, does it?" Verhoeven persisted.
He went over the design differences between Galaxy models versus the iPhone. The iPhone has a flat face, the Galaxy a ridge around the edge of the screen where a metal bezel overlays the glass and protects it from being scratched if it's laid down. The bezel on the iPhone is of a uniform thickness around the touchscreen; on the Galaxy, it's of a varying thickness.
His points were factual, but patent law only asks that "the ordinary observer" find "substantial similarity" in the ornamental design of an object. Judge Koh's instructions to the jury were explicit in calling for them to ignore other factors and concentrate on the impression of the overall design. Glanced at on a screen side by side, they look similar but it's hard to tell whether all members of a jury will unanimously decide that the similarities are enough for a judgment of copying.
Verhoeven attacked the notion that the average consumer would be so confused by the similarity of the two that he might buy a Samsung phone or tablet thinking it was an iPhone. In pinning down one Apple witness after another, he didn't ask if they thought a consumer might be confused. He asked if they knew of any consumers who had made that mistake. None had. Susan Kare, a former Apple employee and icon expert, had declared in her testimony she picked up a Galaxy model off the table at Apple's attorney's office, thinking it was an iPhone.
Apple's attorneys referred to Best Buy store experience where some returns of Samsung Galaxy Tab 10.1s were by consumers who claimed they had thought they were iPads. But no evidence was established that corroborated the attorneys' statements.
Verhoeven illustrated how far from copying Samsung had gone in its home screen, which starts with the Samsung logo and a mechanical voice pronouncing Droid (for the Android family of smartphones), requiring the user to navigate through two screens to get to the application screen that looks somewhat like the iPhone's home screen. But he was facing an uphill battle, when patent law deals only with a single dimension of an invention, the ornamental design drawings filed with a design patent. It has no capacity to capture the multiple steps of turning on and navigating through multiple screens of a modern electronic device to determine whether they, as a whole, are similar.
"All the arguments about booting up and moving through those screens are irrelevant," McElhinny warned the jury during his turn, citing the judge's instructions.
Verhoeven pointed out the four buttons at the bottom of the Samsung application screen and cited Apple's Christopher Stringer's testimony that Apple wanted only one button at the bottom of the device.
He also pointed out the relationship between some design elements and the function of the smartphone. An element of design dictated by function can't be protected by a patent, and one such element is the speaker hole for the ear. It tends to be located in a similar location on many smartphones, not because their designers are copying Apple, but because of the relationship of the human ear to the mouth.
The Apple suit against Samsung in the end isn't about a patented design, he concluded. "The real reason Apple brought this case, rather than competing in the marketplace, is because it's seeking to block its biggest competitor ... It wants to keep its most serious competitor from even attending the game."
The Silicon Valley where Steve Jobs grew up and thrived was based on competition, not the narrow details of design patents. In smartphones, design reflects the changing functions on the device and big touchscreens are replacing pushbutton number pads below small screens.
It's like walking into a store selling televisions and the different flat-screen models look much alike, continued Verhoeven. "Form follows function ... Many smartphones today look like the iPhone. Are they all copyists? Yet Apple wants to $2 billion for the infringement of ornamentation, its design patents."
"Is anyone really deceived by the Samsung design? Apple has no credible evidence of it," he said. But again, the judge's instruction warned that proof of people being fooled by copies is not required under patent law. They only need to find "substantial similarity" in the eyes of "the ordinary observer."
Both sides mustered their cases well, said Nick Tran, a former software developer for eBay, currently between jobs, who observed the closing arguments with his college-age son, who is a pre-law student. "But Apple has the more cohesive narrative," he said. Now the case is in the hands of the jury, which starts deliberations at 9 a.m. Pacific time Wednesday.