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Apple, Samsung Expert Witnesses Reap Big Bucks

How pretty was the pay day? Apple gave one expert witness $1.75 million to construct a damages figure in the case against Samsung.
New iPad Teardown: Inside Apple's Tablet
New iPad Teardown: Inside Apple's Tablet
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She pointed out key similarities and even testified she had become confused when, on a visit to an Apple attorney's office for her expert witness interview, she picked up a Galaxy on a table full of phones, thinking it was an iPhone. "I guess I became confused," she said. "Confusion" is a key word in a case with "trade dress" issues at stake. Products so similar as to produce consumer confusion is a measure of infringement of "trade dress," where a manufacturer asserts its brand-based appearance and presentation of the product has been "diluted" by copycat products.

For it to occur at the law firm, as she described, she needed to encounter a table full of phones, all of them turned on with the Galaxy models already navigated from their home screen through a series of navigational hops to the applications screen. (175 Samsung and Apple phones, most of the Samsung's, were exhibits in the trial.) That is certainly possible, but the law firm maintaining a table full of turned-on phones would need to check frequently to see which ones needed recharging. (Perhaps that's what the interns do.)

Kare's testimony was crucial, because Apple produced no surveys or cases of actual consumers who had been confused about the maker of their purchase. For her testimony, Kare charged Apple her standard consulting rate of $550 an hour, running up a total of $80,000.

Peter Bressler, principal of the Bressler Group, an industrial designer who was hired to evaluate whether certain Samsung Galaxy smart phones mimicked Apple's iPhone design and he concluded that they did. But he was caught unawares when Samsung's Charles Verhoeven pointed out that the Galaxy S 4G has corners with a different radius at the top from those at the bottom. "I haven't taken the measurement. I couldn't dispute your measurements," he responded. Verhoeven earlier had encouraged Apple designer Christopher Stringer to repeat his assertion that equally rounded corners were essential to the "beautiful" iPhone design.

Bressler insisted the Galaxy S 4G still looked like the iPhone; the three millimeter difference in radii was not significant. "In people's visual perceptions, I don't think it's quite so precise." Samsung's Charles Verhoeven shot back: "Well, details are important in design patents." It seemed an obvious thing for an industrial design expert to miss and gave Samsung the opportunity to highlight the 33% difference in a blow up chart.

Later, Bressler would admit he didn't know what elements of the design might be closely related to smartphone function (such as the location of the narrow oval used as the speaker hole on many smart phones or the four buttons at the base of a Droid phone) because he wasn't familiar with what was functional versus what was ornamental on a smartphone. "I don't believe the ordinary observer would be looking around for an opening that would be a sensor on the phone," he explained, although sensors weren't the topic of discussion.

Bressler was paid $400 an hour and had worked over 187 hours on the case, collecting $75,000 by the time he appeared in court.

Russell Winer, professor of marketing at the Stern School of Business, New York University, uses Apple as an example of successful marketing in his marketing course. He testified on Apple's trade dress, which he described as "highly distinctive … among the most distinctive in the world," and agreed it was being diluted by Samsung. He charges $625 an hour, total, $50,000.

Ravi Balakrishnan, professor of computer science and a user interface expert at the University of Toronto, charged $430 an hour and received $150,000. He buttressed Apple's claim that its bounce back feature was unique to the iPhone's and iPad's user interface. "No one had solved the desert fog problem before Apple," or the sense of being lost if a user strays off the edge of an electronic document into white space, and doesn't know in which direction to move the cursor to get back to it.

John Hauser, professor of marketing at the Sloan School of Management, MIT, testified for Apple on what its patents are worth. He estimated from an Internet survey that they add $90 in value to each iPad and $100 to the iPhone. He charges $800 an hour but had no idea what the total number of hours was. Questioned by Samsung's Charlie V. on his total bill, he said, "I'd have to ask my wife … I wish I could call my wife."