Last Updated: July 30th, 2012

With Samsung and Apple's California trial scheduled for Monday, more and more information is being unearthed about the parties' respective claims. Yesterday, though, AllThingsD parsed out a few pieces of evidence from an unedited version of Apple's filing (not publicly available) that look quite bad for Samsung. I'll just quote them as they appear, because they really don't need much context:

  • In February 2010, Google told Samsung that Samsung’s “P1” and “P3” tablets (Galaxy Tab and Galaxy Tab 10.1) were “too similar” to the iPad and demanded “distinguishable design vis-à-vis the iPad for the P3.”
  • In 2011, Samsung’s own Product Design Group noted that it is “regrettable” that the Galaxy S “looks similar” to older iPhone models.
  • As part of a formal, Samsung-sponsored evaluation, famous designers warned Samsung that the Galaxy S “looked like it copied the iPhone too much,” and that “innovation is needed.” The designers explained that the appearance of the Galaxy S “[c]losely resembles the iPhone shape so as to have no distinguishable elements,” and “[a]ll you have to do is cover up the Samsung logo and it’s difficult to find anything different from the iPhone.”

These quotes, in particular, are important because the bulk of Apple's demand for damages (in the form of unjust enrichment by Samsung) come from design patent and trade dress claims, totaling $2.5 billion. Worse yet, these statements would indicate that Samsung may be guilty of willful infringement, meaning a jury can choose to award Apple treble damages (triple the amount) - up to $7.5 billion. Even for Samsung, that's a lot of money. Apple is also seeking a permanent injunction against Samsung products deemed to infringe any of Apple's patents, though that remedy will be decided by the presiding judge post-trial.

Google's comments on the pre-release Tab 10.1 design hit even harder with the fact that the 10.1 has previously been banned in a number of countries (with notable exceptions) for design patent (or related design IP) infringement, most recently in the US. Samsung has fought vigorously on an international scale to keep the Tab 10.1 on store shelves, and a particularly boisterous judge in the UK has even demanded Apple take out newspaper advertising and declare on its UK homepage that the Tab 10.1 does not infringe Apple's design rights (UK and US law in this area differ substantially).

The Tab 10.1 And Other Tablets

Based on my reading of the briefs, the Tab 10.1 seems like Apple's strongest claim against Samsung for alleged design copying. Apple's contention has already stood the test of a federal circuit court review (via the preliminary injunction), and in a patent case, it's extremely rare for a preliminary injunction to later fail against a jury verdict. This verdict, if the jury reaches it, will almost certainly include a finding of willful infringement, as Apple's quotes from Google, damning as they are, are likely just the crown jewel of a larger pile of evidence it has of such internally-described similarities. This image, Apple's counsel says, is the incarnation of the "story" Apple will tell regarding the iPad and Tab 10.1 (and other tablets):


The amount of damages stemming specifically from the Tab 10.1 is another matter, though. Apple's "conservative" contention is that 10.5% of all infringing tablet sales made by Samsung would have otherwise been iPads based on production capacity and market demand. However, because Apple is entitled to the entirety of Samsung's profits from all infringing tablet sales, this number is likely small in comparison to the latter. Smaller yet are both numbers in comparison to the lost profits and unjust enrichment resulting from smartphone sales in the US, which very likely make up the large bulk of Apple's $2.5 billion damages demand.

Given that the Tab 10.1 was long ago outdated, and never hugely popular, a victory here would be mostly symbolic for Apple. Samsung's more recent tablet designs have veered from the look of the iPad to an extent, but it's entirely possible the upcoming Note 10.1 could get wrangled into Apple's demand for injunctive relief post-trial. It has yet to be decided here in the US if Samsung's addition of front-facing speakers and a wider vertical border are sufficiently different from Apple's patented design and / or trade dress.

As far as the underlying legal principles of design patents go, Apple makes a convincing case not only for the validity of its own design, but for the similarity of Samsung's. Especially since the Federal Circuit Court decided there was no reasonable challenge presented by Samsung to the validity of the '889 iPad design patent, resulting in the upholding of the preliminary injunction against the Tab 10.1. In terms of trade dress (packaging, presentation, and/or ornamental elements, basically), this (cropped) photo, having made the internet rounds some time ago, will probably be reincarnated in some form by Apple's counsel at trial:


This makes a rather compelling case for a trade dress infringement claim on packaging (though this is the box for the original Galaxy Tab, not the 10.1), and though that's not within the scope of Apple's claims as far I'm aware, it definitely helps tell the "story" Apple wants to feed the jury. Samsung was careful to avoid the more conspicuous copying the box design of the iPad with later tablets, but Apple is alleging trade dress infringement on the design of the iPad itself, not its packaging. Apple plans to introduce evidence showing consumers confusing the Tab 10.1 for the iPad at trial, as well (this isn't actually necessary, just very useful). Some of the evidence Apple hopes to produce (Samsung wants it suppressed) include internal Samsung documents showing Best Buy customers actually bought Galaxy Tab 10.1's and returned them, mistaking them for iPads. Yikes.

Trade dress infringement and / or dilution (which I'll explain in a moment) also allow the recovery of lost profits or unjust enrichment. Apple clearly has a lot of ammunition on the tablet side of this case, and it's the one part of this thing that I feel Samsung just isn't very likely to win on.

iPhone vs. Samsung Phones

Apple's "story" for Samsung's copying of the iPhone is a visual summary similar to the tablet one above:


Samsung's visual response to that "story" is one of their own:


The immediate problem with Samsung's "story" that Apple will latch onto is that before the iPhone, the vast majority of smartphone products Samsung actually decided to make (not merely design) were not similar to the iPhone. It wasn't until the iPhone was successful that Samsung's smartphone strategy underwent a paradigmatic shift focusing heavily on full-touch devices. And remember, when we're talking about patents, prior art must have been public at the time of the purported invention in order to be considered prior art. The F700 everyone likes to point to wasn't made public until after the announcement of the iPhone (it was pretty crappy at the time, too), and Apple is going to absolutely hammer on this point.

Trade Dress Dilution

This a decidedly murkier part of the litigation, and one of the parts with the most money at stake, as well as consequences generally. It's also the biggest point of contention for the two companies, and has become something of an international slap-fight for the media and tech-savvy consumers to gawk at. Apple's most potentially powerful weapon in attacking Samsung's Android smartphones comes in the form of the issue we just discussed - trade dress dilution.

Apple never bothered to register the trade dress for some of its iPhone devices, meaning it has a slightly larger initial hurdle to get over in the first place. Apple must show the jury that the some of the iPhone's trade dress is not only protectable, but famous. Granted, these hurdles probably won't be too difficult to overcome. Samsung will attempt to prove that the iPhone's trade dress is predominantly functional (eg, its form is only a result of its function), but reading both sides' arguments, I'm much more convinced by Apple's position. Apple's registered trade dress is also presumed valid, which means even more work for Samsung to get around it. However, this has nothing to do with the actual proving of trade dress dilution, a legal concept whose very existence is a precarious little niche in trademark system that some might call a technicality.

Dilution means a brand's image has been tarnished by a competitor attempting to profit off its trademark, or in this case, trade dress. Apple wants to show the jury that Samsung's phones have made the iPhone look less distinct, and that it has "blurred" the line between the distinctiveness of the two company's products. It has nothing to do with consumers confusing one product for another (though evidence of this is quite useful, as I said earlier), just a showing of consumers associating the two. So, what does Apple claim the trade dress of the iPhone is compromised of? Their brief tells us exactly (includes iPhone, iPhone 3G/S, iPhone 4):


Trade dress is looked at on a holistic basis, and based on the wording of Apple's trade dress here, the Galaxy S and S II are both very possibly in this description (they do not have to meet every element). The thing is, though, Apple isn't actually accusing Samsung of infringing the trade dress, merely of diluting it. Why not accuse them of infringement? Infringement requires a showing of likelihood of confusion, something that would be very difficult to accomplish here. Since the iPhone is such an iconic device, it would be almost impossible for Apple to prove people are actually confused when presented with a Galaxy phone and an iPhone as to which is the real McCoy.

Trade dress dilution, on the other hand, is more like trying to show someone is "leeching" off the famousness of your product. Apple is asserting "dilution by blurring," which essentially means that it is accusing Samsung of weakening consumers' association between the iconic (famous) trade dress of the iPhone and Apple as a company, because Samsung's products are visually similar to Apple's. Apple's contention is that, in the mind of consumers, an iPhone and a Galaxy phone look similar enough that the iPhone starts to lose some of its distinctiveness, and consumers start thinking one is a substitute for the other.

Galaxy_s (2) samsung-Galaxy-s-2_16b703

For Android fans, this sounds absurd. There are myriad difference between the two, functionally and visually (eg, widgets, as in above photos). The thing is, though, it's easy to forget just how "lay" members of a lay jury are - and that's exactly how the law wants them to be. There is little doubt in my mind, personally, that Samsung has successfully marketed its smartphones in the past to less savvy consumers (maybe less so now, especially with the Galaxy S III) by standing on the trade dress "shoulders" of the iPhone. This may well be the strongest part of Apple's case, unless Samsung has some evidentiary secret weapon we've yet to see - disproving the distinctiveness of Apple's trade dress is probably their only option (sort of like prior art for trade dress, but not really), and the original LG Prada is about the best bet they have (though it lacks two key elements of that trade dress):


The problem here is that the distinctiveness requirement focuses heavily on secondary meaning - the meaning consumers come to attach to a particular trade dress. No one remembers the Prada phone, and everyone associates the shape of the iPhone with Apple, so Samsung's attempts to disprove distinctiveness may not gain much traction.

Even if Apple wins on this point, though, it's hard to say how the concept of trade dress dilution will stand up on appeal - the 9th Circuit is fairly unpredictable, though it does have a track record favoring rights-holders over alleged infringers, so it may be keen to latch onto the concept. Don't expect a quick answer on this one.

Design Patents

Design patents are the other big part of Apple's case against Samsung's smartphones. Apple alleges two hardware design patents for the iPhone, and one software GUI design patent for the iPhone as well. The software GUI patent, in my opinion, is the least likely of the three to withstand the jury's scrutiny:


Samsung will likely immediately go to the two stock press shots I placed in the previous section - "See? We have widgets." And I think this could be a solid defense, Apple's patent on the GUI design certainly bears some similarity to Samsung's when you have the app drawer open, but that isn't a part of the interface where users idle in Android. If they do win on this across the board, I'll be a little surprised. Design patents, like trade dress, are looked at on a holistic basis, and I just don't see the overall similarities between the two being great enough for Apple to eek this one out. Maybe if it was for the bottom row of icons alone, but not the entire home GUI. Then again, Apple can easily claim that it is possible, out of the box, to make Samsung's smartphones appear more like this by removing the widgets and substituting them for icons. Whether or not this argument will at all be convincing is an unknown - Samsung has marketed photos of the original Galaxy S with the app drawer open (and marketed other phones with more icons than widgets on the homescreen), and that's definitely a valid piece of evidence.

Where Apple likely has a stronger case is its hardware design patents, particularly D'677, which claims the front fascia (minus border) of the iPhone:


Put side by side with a Galaxy S or Galaxy S II, this patent could be disastrous for Samsung. It really is quite broad, and my gut instinct tells me Apple's argument will be that Samsung's square home button and / or use of capacitive buttons are inconsequential differences in the larger evaluation of the design. The "test" here for the jury is whether or not, based on the patented design, the two designs are substantially similar to an "an ordinary observer." The definition of "substantially similar" is something of a gray area - not to the point where the two design have no perceptible differences necessarily, but enough that you feel confident the alleged infringing design taken as a whole copies the patented one. This really comes down to the advocacy skills of the respective attorneys and the jury itself.

As for prior art, Samsung will likely look to the LG Prada (imaged in the previous section), to show that the patent is invalid. This actually worked in a case in the Netherlands. However, the D'677 patent has already withstood a preliminary invalidity analysis from Judge Koh, which isn't exactly a good sign. Another hardware patent, the D'087 design patent, has successfully had its validity called into question by Samsung - though that patent focuses more on the shape of the entire iPhone device, not merely the front.

The LG Prada is definitely Samsung's strongest defense against the D'677 patent (in an attempt to prove invalidity), and my personal opinion is that it definitely constitutes prior art. As for the jury, we'll see what they have to say on the matter.

Design patents and trade dress both allow for the recovery of lost profits and unjust enrichment, and you can bet that the claims against the Samsung phones in this case make up the bulk of that $2.5 billion estimate (it's worth noting that doesn't even include the Galaxy S III, should Apple decide to go after it on trade dress or design patents [unlikely, in my opinion]).

The Sony Phone Defense

One of Samsung's much-publicized defenses to these design claims is that Apple "took the idea for the iPhone from Sony." And most people have read this to mean that Apple looked at the picture below, and out came the iPhone a year later.


Looks something like an iPhone, right? And I'd agree with you - it does (though really much more like the iPhone 4). But guess who drew up that design? No, not Sony. Apple did. An Apple designer was told to draw up a design for a "Sony-like" phone after an internal email was circulated that contained a link to a Newsweek interview with a Sony designer who made comments about coming up with a music player that was sleek, square, and lacked excessive ornamentation and many buttons. This isn't prior art - it's Apple's own design, and it was never made public.

Samsung's real argument is that the interview which was circulated containing photos of Sony's new Walkman is what constitutes a sort of prior art, because the Apple mockup took from the Sony design philosophy which then led to the iPhone. This is, to put it nicely, a stretch. Sorry, Samsung - you're better off pushing the Prada phone.

Apple has also asserted a number of software patents against Samsung, but these add up to a comparatively inconsequential $55 million or so in damages, and for the sake of brevity, I'm going to leave them out of this overview. They could also result in the issuance of injunctions, but these are at least injunctions Samsung could avoid with software changes (such as removing universal search).

Samsung's Claims Against Apple

Let me be frank: Samsung's counterclaims against Apple all kind of... suck. Samsung is doing the only thing it really can here, throwing out SEPs (standards essential patents) and a few other random patents of questionable value and hoping something sticks. The problem is that none of the SEPs can be asserted in a way where they're actually worth all that much money - SEPs have to be licensed on a "RAND" basis (reasonable and non-discriminatory), usually meaning a low royalty, and that means they also can't be used in a truly valuable way in litigation. Even if Apple is found to infringe, none of these patents are likely to result in injunctions. Samsung can claim royalties and past royalties.

Apple claims some of these SEPs are invalid because of certain standards-setting committee bylaws that it says Samsung violated, but I find Samsung's response to these allegations convincing - Apple is just confusing the issue. Apple likely violates at least some of these patents. The greater question is how much Samsung can charge for them, and the most likely answer here seems to be "not enough to make it worth Apple's while to settle." Apple has offered half a cent on each (which isn't to say this number is right, or even close to it). Samsung has asserted 3 non-SEP patents, as well. The problem is that none of them seem to be any good.

The '406 Patent

Here's the first one, the '406 patent. Why yes, that is a flip phone. Samsung is attempting to assert that this dumbphone method for taking and then sending photos through email is infringed by basically all of Apple's products, in essence claiming that Samsung owns the idea of taking a photo on a portable electronic device and sending it in an email over the internet. Yes, really. Samsung even refers to it in its own brief as a "camera phone patent." Samsung itself has had difficulty trying to figure out exactly how this patent is infringed, and this was their initial suggestion:

Samsung initially asserted that Apple infringes when a user employs the following series of steps: enter the Mail app and start a first email; return to the Home screen; enter the Photos app and start a second email including an image; return to the Home screen; enter the Camera app and display photos through the use of left and right arrows; return to the Mail app and send the first email; and return to the Photos app and send the second email.

Right. Samsung later clarified how the iPhone infringes it, but not after basically destroying its credibility with this ridiculous claim.

The '893 Patent

The next patent is over something so ridiculous that I almost feel bad for Samsung that its lawyers decided to drag it out. The '893 patent, as you can see, is a patent for digital cameras (as evidence by Figure 1). Once again, Samsung's patent relies on technology that operates in firmware-based "modes," rather than software (eg, apps), and this is the point Apple hammers on. Fact aside that this patent is being transposed onto a piece of technology it probably shouldn't cover in the first place (smartphones and tablets), the function it covers is so absurdly narrow I can't actually believe Samsung bothered to patent it.

The purpose of the patent (drumroll, please)... is to allow you to go back to the most recently viewed photo in a gallery or "reproduction mode" after coming back from the camera mode irrespective of the duration between switching modes. The biggest problem? Apple's products don't actually do that - they go to the most recently taken photo if the gallery apps gets pushed out of memory, meaning it is not irrespective of duration. Whoops. Even if the jury found this patent to apply to Apple's products (it's a big stretch), this is clearly just Samsung's attorneys not doing their homework on this one.

The '711 Patent

Samsung's final non-SEP patent is the '711 patent, which relates to background MP3 playback. The basic idea being patented is that a user can play back an MP3 file in an MP3 "mode" (again, that word appears to Samsung's detriment), and multitask while the MP3 continues playing. You'd think Samsung would have licensed this to literally everybody by now.

The issue is that the primary claim of Samsung's patent relies on one extremely narrow detail: ".... wherein the music background play object includes an application module including at least one applet." I'm not a programmer or a software engineer, but as I understand it (from Apple's developer library), iOS and Android don't use "applets." The app just keeps running, in the background - there's no "sub-app." Someone feel free to enlighten me on this one.

Apple asserts that Samsung has never actually identified any source code to support this claim, either, which isn't exactly encouraging.

Damages Issues

One of the most telling parts of Samsung's brief is the portion spent on disputing Apple's $2 billion unjust enrichment claim. 4 of the 22 pages of the brief are devoted to Samsung's argument against Apple's methodology for calculating unjust enrichment as to the design patents at issue. Specifically, Apple wants to claim the entire profit in each product deemed infringing of trade dress and or design patent rights. So, if a Samsung Galaxy S II yielded Samsung, on average, $200 of profit (minus cost of production, distribution, R&D), Apple wants all of that $200.

Samsung claims that the "design for a case" for a product like the iPhone or iPad is separable from the product itself - like the binding is separable from the contents of a book. That is, if Samsung infringes, it should only be required to disgorge the profits from the enclosures of its infringing products, not the "stuff" inside. This idea has some precedent in the 2nd Circuit (precedent of the worst kind - non-binding), but it seems previous hearings have indicated Judge Koh already decided she won't go for this argument, and a Samsung damages expert relying on this methodology has already had his testimony excluded as unreliable for that exact reason. There are clear reasons for such a position - no one (well, almost no one) would buy a Mercedes S-Class if it looked like a Kia Rio.

Appearance is extremely relevant and often inseparable from iconic products, and to say you could get around paying a hefty damages judgment by designing something that looked exactly like an iPhone but shared none of its internal elements just feels wrong, and we all know it.


There are definitely some strong defenses available to Samsung in this case. Unfortunately, their own arsenal of claims against Apple falls decidedly short. I would again refer everyone to the LG Prada (here's a super high-reso version of it) as one of Samsung's strongest contenders for invalidating Apple's iPhone design patents. The trade dress arguments, however, are much less clear. Apple makes a potentially compelling case for dilution, but even if the jury buys it, it's a big unknown how such a concept will stand up on appeal to the circuit court.

The most obvious loser for Samsung is probably the iPad trade dress and design patent claims. The prior art Samsung has dug up just isn't very convincing (the Fidler tablet is as close as they get, and even that has substantial differences). The saving grace is that the products accused of infringing on the iPad are at the end of their life cycles, so the impact (aside from damages) wouldn't be too large.

There's also the possibility all of my predictions will turn out wrong and Samsung will be cleared of any wrongdoing - we just don't know. Juries are total black boxes. As we watch the biggest and most important "Android vs. Apple" trial unfold over the coming weeks, some surprise evidence may yet come out, and we'll be sure to keep you in the loop if it does.

David Ruddock
David's phone is whatever is currently sitting on his desk. He is an avid writer, and enjoys playing devil's advocate in editorials, and reviewing the latest phones and gadgets. He also doesn't usually write such boring sentences.

  • Sven Enterlein

    I wonder if Apple would be happy with just getting Samsung products banned. They surely do not need the money, not even if it's several billions. However, I am afraid that they do not want to leave any remains of the competition except some smoldering ashes :(

  • http://www.facebook.com/people/Tiffany-Sears/826921257 Tiffany Sears

    It is very very weird seeing all this together. What product line does this not happen with? Someone makes a design breakthrough (i.e. marketing breakthrough) that redefines a product's look, and then other companies take that new design and use it with slight variations until it gets changed drastically again.

    • wolfkabal

      How often have you walked through a parking lot and confused a Camry with an Accord. You don't see Toyota and Honda going at it like this. Hell the general premise of a car hasn't changed in 80 years. And design wise, it's been stagnant for the last 15 or so. Man up guys, drop the "but mine's the only one that can look anything like this"

      • Brfield

        All the cars look the same today. You can be rolling down a Highway and confuse a BMW with a Honda if you don't pay excruciating attention to detail. Even worse yet is that with every coming model year, they get closer together. The Car companies just deal with it, and rely on their reputations.
        Apple needs to take a hint, and backup because one day, someone will give them what they deserve and it will hurt them.

      • MicroNix

        Totally! Imagine what a fix we'd be in if Apple made cars. We'd all be driving one bloody sized car and only able to repair it with Apple parts. Apple is just off their rocker.

        • tehsouthpaw

          As a 6'3" guy, it would suck if Apple made cars. They would be entirely too small and cramped for me.

  • wolfkabal

    From a company that was founded on stealing ideas, I can't help but toss out the "hypocrite" card here. That is all.

    • Kenny O


      • http://www.facebook.com/will.aguilar.2398 Will Aguilar

        LOL invented??? they maybe improved an existing idea. plus freaking apple is made of Samsung technology.

    • LazarusDark

      You should be grateful. Apple invented [i]life and are responsible for all existence.

    • manny

      So when Woz designed the Apple 1 and basically founded apple, who's idea was stolen??

      • wolfkabal

        Apple wasn't Incorporated until after the Apple I. So the first official Apple Inc. product was the Apple II. And yes, many of the ideas in it were copied, borrowed, or otherwise stolen.

  • Shanne Liszewski

    You also comparing previous samsung was windows based, not fully touch capable, and after iphone, was android, full touch capable. Apple is just pissed because of companies like samsung they did to add features to thier devices faster than they want. year 2 add camera, charge $199, year 3 add video recording charge $199, year 4 add 4g, charge 199, year 5 add voice search charge 199, year 5 increase resolution, charge 199, and so on. now with they have to keep adding more and more, just to keep up, but still lagging behind. things you can do on iPhone 4s with upcoming iso 6, i could do on my samsung galaxy s and s2.

  • Kenny O

    This whole thing makes me ill, in my eyes the more they litigate the more I want to never own an Apple product ever. At this point its not even a matter of liking one platform or OS over another, Apple just comes off a a bunch of cry babies trying to eliminate the completion through the courts instead of just making better products.

  • http://www.facebook.com/profile.php?id=1808599231 Ariel Felder

    The products and packaging look similar but really how many designs can one have for a box and touchscreen product? The boxes are clearly different to me and seem to be more designed to cut down on wasted packaging "for the environment" than an attempt to mimic anything. As for the products themselves the aspect ratios of the devices are obviously different and the ipad looks extremely clunky by comparison IMO.

    • wolfkabal

      Exactly, I think the fact that patents were granted at all for half of this is the real crime. Even still the patents that are being granted to apple (5D technology) really?!? They're reaching out and grasping anything they can simple to be able to do this type of thing later down the road. Power to them for their "do only evil" mantra.

    • MicroNix

      Exactly. So when I buy the store's generic "Ritz crackers" that have a same size box with almost identical colors and labeling as the real Ritz crackers, shouldn't there be a lawsuit there? Apple's just a spoiled brat in need of that slap in the face.

      • wakkoman

        You're a fucking idiot.

        • MicroNix

          Oh the irony...

  • Jon

    I have a feeling this will get really ugly really quickly.

    • http://www.facebook.com/profile.php?id=1808599231 Ariel Felder

      This got ugly long ago. Apple is trying to go after Android by making it too expensive for the manufacturers to use.

      • http://twitter.com/havens1515 Randroid

        The only problem with that is that (as the article states) the issues that are a real problem here are the hardware ones (that are easily avoidable by Samsung and other OEMs in the future.) The software ones are less likely to succeed, and will cost Samsung a lot less money if Apple does win with them.

      • Alan

        Yet Apple won't license iOS so the only alternative for OEMs is Windows Phone. Seems like crApple are shooting themselves in the foot to me.

  • SH

    If the "Warp" & "Framer" were released in 2004, I'd say Apple copied that form. (I don't know if they were)

    • http://www.androidpolice.com/ David Ruddock

      They're mockups. As far as I know, they were not released. The F700 was the first full-touch, iPhone-like design Samsung publicly unveiled.

  • http://www.facebook.com/people/Stephen-Kopenkoskey/608783206 Stephen Kopenkoskey

    That is a lot of information to digest. I think Apple has a good chance at confusing a jury and ultimately winning. :(

  • http://www.facebook.com/people/Surya-De/100000613813429 Surya De

    Man when I first saw the Galaxy S phone I immediately had thought that it was such an iPhone clone. I am all against Apple as an organization but it is blatantly obvious to my mind that Samsung did bring out their photocopiers.

  • http://droiddev.co.cc/ CuriousCursor

    The thing is...if you're making as many models as Samsung makes in a year. Obviously there will be at least one model that looks like another phone!

  • Jeff

    I'm sorry but I have to say this, Android has been out for numerous years now, and Samsung has always been a major supplier of Android phones since the beginning. Let me ask you this, why now is Apple bringing this up, when the Galaxy S line of smart phones have been around since Froyo. It's because in the last few months and year(s), Apple has been getting it's ass handed to them with Android sales, not so much tablet wise (unless you count Kindle Fire into that figure), but most definitely phone wise. Apple can't hype up the iPhone anymore or even the iPad now that the Nexus 7 tablet is already breaking shipping records, so they have to be the whiny schoolkid of "I got it first!" Steve Jobs died and now Apple is lost, this is the beginning of the downfall. Granted, they will probably take down 1 or 2 companies with them, but they will never rise again until they do some more damn innovating.

    • MikeCiggy

      Because it's beating the shit out of Apples market share, and their threatened. Makes sense however, I would have so much mroe respect if they would just try to innovate and bring even more features to the table instead of all this court bull.

    • 14ml337

      WTF? are you stupid? The lawsuit wasn't filed this year. It was filed LAST YEAR. And even then the lawyers have to make sure they have a case before the file a suit.


      • wolfkabal

        I'll agree with you're reasoning, but your method of distributing it is a little harsh and uncalled for. Stop, breathe, okay now re-join the conversation.

      • str8loungin

        ooo he's an angry elf.

      • http://www.facebook.com/will.aguilar.2398 Will Aguilar

        angry much?! Even if it was filed last year, still they are a company without ideas. Which Samsung clearly is not.

  • Isidhu

    Nice article. I always felt Samsung's tochwiz was somehow a cheap derivative of the Iphone's Icons. No doubt about the galaxy S designs are also very similar to the Iphone even Galaxy S2 is very similar. in this particular case I do feel Apple has the right to go after Samsung, it is the software patents like the last one on universal search that I feel are annoying.

    • http://thedangerbrain.com/ Alfonso Surroca

      My ideal scenario is that everything gets thrown out, except for TouchWiz, and the courts force Samsung to delete TouchWiz and run vanilla Android. TouchWiz has always looked like crap.

      • Isidhu

        If only they would kill touchwiz, i might just buy a Samsung phone although at this point I am just going for a unlocked nexus once my contact expires in Oct

      • Brando212

        the only thing I've ever liked about touchwiz was the notification center on their tablets, with how the quick settings are on a slider and the notifications are below that

  • http://twitter.com/mariodnyc Mario

    I think this lawsuit is to protect the illiterate. If you pick up a box that says Samsung on it, why would you think it's an Apple product?

    • NeedName

      consumers are morons!

      remember all the netbook returns? the reason? they ran Linux (Ubuntu) and customers couldn't install their "regular" software (Windows software).

      These are the same idiots walking into a store and walking out with a tablet made by a manufacturer, clearly stated on the box, thinking they purchased a completely different product by a completely different manufacturer. As the saying goes, human stupidity is infinite.

    • NeedName

      consumers are morons!

      remember all the netbook returns? the reason? they ran Linux (Ubuntu) and customers couldn't install their "regular" software (Windows software).

      These are the same idiots walking into a store and walking out with a tablet made by a manufacturer, clearly stated on the box, thinking they purchased a completely different product by a completely different manufacturer. As the saying goes, human stupidity is infinite.

    • LazarusDark

      Thing is... how does someone so dumb get $500+ to spend on a non-essential item like a tablet?
      Oh wait... probably half the managers I've ever had...

      • Hobbesian Meliorist

        Or works in the meeja -- plenty of dumb people in showbiz.

    • PhilNelwyn

      I'm pretty sure that the people who bought a Samsung phone and returned it pretending they thought it was an iPhone were Apple employees.

      • mikeym0p

        GENIUS bar technicians ;)

    • http://codytoombs.wordpress.com/ Cody Toombs

      Maybe every Best Buy in the world is different from the 5-6 I've been in, but I've never once seen one where you don't have to ask a store employee to grab a tablet from a back room. So packaging is not a valid excuse for the "confusion". I refuse to believe that a significant number of people walked into the store and simply pointed at a tablet that looks similar to the iPad and said, "Gimmie one 'ah dem thar tings".

      Simply put, I think a lot of people walked into the store, not wanting an iPad. They chose the only other tablet that didn't weigh too much (the SGTab10.1) and took it home. Once they started using it, they realized that they didn't know what to do with it and there just wasn't enough good software for tablets yet. They returned the Tab and picked up an iPad. I've got a sneaking suspicion that those same customers had a high return rate on the iPad as well. But I'm sure Apple will present it the way David describes it, they are notorious for showing only the part of the story that suits them.

      • John O’Connor

        or they were Apple employees who bought the tablet to intentionally return it and say i thought this was an ipad. Good point about boxes. its not like most if any electronic store has any high end item sitting on shelves like a supermarket anymore. the boxes are kept in locked cabinets, or are stored in the back for the most part. what you see when you go in is a myriad of devices locked down to the display so that you can interact with them and not just walk out of the store. Also, anyone who has been to any electronics store (especially big names like best buy) knows that apple has their own dedicated section of the store for their products. So nobody can even use the grandma grabbed the wrong one excuse. clear fabrication....

    • http://www.androidpolice.com/ David Ruddock

      I'm just asking for downvotes by responding to this, but I doubt the point Apple is trying to illustrate is that people *actually* thought they had bought iPads made by Apple, so much as they believed they bought a product that was basically the same. The way Apple words it in its evidence suppression response makes it sound like people actually thought they bought iPads, but that's certainly going to get fleshed out at trial.

      • Hobbesian Meliorist

        I don't like that coffeeshop suggestion.
        Casual observers, especially uninformed ones, are constantly mistaking things for other things vaguely in the same category: "Oh, is that a Fiat?" No, it's a Renault. "Is that a potato?" No, a yam. "Is that a Nikon?" No, a Canon. "Is that the Beatles?" No, the Monkees. "Is that a greyhound?" No, a whippet. "Is that Ikea?" No, Habitat... and so on, ad nauseam.
        To base a huge and potentially very expensive legal decision on such casual errors would, I think, be a terrible thing. Apart from anything else, it would turn making and selling things into a minefield in which one could never be sure that a competitor wouldn't sue at any time over a vague similarity.

        • Alan

          I agree, perhaps the most ironic thing is when people ask me" "Is that the new iPhone?" and my answer is "No it's a Galaxy Nexus"

          • mikeym0p

            I used to get that with my Dinc, usually when people see my Nexus they either say 'the screen is huge!' or "Damn, this phone looks way cooler than the iPhone"

      • mikeym0p

        The problem with that is that I've never heard a non tech-savvy person call their device a tablet, even if it's android.
        People use the term 'iPad' instead of tablet, just like I still heard morons going around calling anything remotely android 'Droid'.
        I've heard peopel call standard laptops Macbooks too, since Apple is such a status symbol peple use their product names instead of calling the device by name. It's similiar to calling a paper towl a 'Bounty' or a sandwich cookie and 'Oreo'

  • KenP

    Great article David

  • moelsen8

    how the hell else would you make a touchscreen tablet or phone? seriously.

    and anyone who buys a galaxy tab or any other android (or any OS) tablet thinking it's an ipad is an idiot, case closed.

    that said, seems like samsung has an uphill battle on its hands..

  • alex

    Wow... do every time I draw a rectangle I will have to pay money to apple for infringing on their "design?" I pads are more square and a rectangle is such a broad term. How can it truly infringe if they are not the exact same width and height. Close doesn't count.

  • marcusmaximus04

    Wait... that tablet picture... So we need to ignore the original Galaxy Tab and go clear back to a *Windows XP* running Samsung tablet from god knows when?

    Hell, I can throw together a picture of the Newton, the G1 and the iPhone 3G in the same way. Yay, misleading pictures!

  • fixxmyhead

    on the tablet picture its running windows xp NOT honeycomb hence all those buttons.

  • marcusmaximus04

    "The app just keeps running, in the background - there's no "sub-app.""

    Actually, no. For music playback Android(and, from my understanding, iOS as well) pushes the playback to an OS service that handles it. You can run into this with some poorly written apps(especially games), where even after closing the app, sounds continue to play. It's generally not the case that the game is still running in the background or anything, the OS was just never told to stop playing the sound.

    If you consider that service to be a "sub-app", which is actually a pretty accurate description, then that's exactly what's going on.

    For reference: I'm an Android game developer. I'm acutely aware of this issue, as I've encountered it a few times in my own game when I missed an avenue for closing the game and, so, didn't stop the sound playback.

    • http://www.androidpolice.com/ David Ruddock

      A sub-app would be within the app itself, not a separate service. Thanks for the clarification, though. I still don't believe it falls within Samsung's "applet" patent, though.

      • http://codytoombs.wordpress.com/ Cody Toombs

        I may be mistaken, but I'm pretty sure that there's no legal definition of 'applet', and that the term 'service' (in the context of a software service) is completely interchangeable (within the programming world, they actually could be). Also, you can simply use the term 'state' in place of 'mode' (the two are typically synonymous, 'mode' is just outdated).

        The patent pretty specifically mentions MP3 playback. Does format specificity actually matter here? It's my understanding that little technicalities like that are irrelevant to the enforceability of a patent.

        It's a ridiculous patent that never should have been granted, since it is just describing a background service that produces an icon on the screen, but it's no less legitimate than much of the crap Apple has brought before a jury. However, in my own opinion, it describes the iPhone and iPod Touch playback mechanism pretty precisely. Since their playback apps are built-in (and non-removable), I think Samsung should win that one. Since the icon and control methods described in the patent aren't necessary to have a background service playing music, I don't think this one would fall under FRAND. Considering music playback is such a heavily advertised component of the iPhone, it could even be claimed that it's a significant component of their product. I would think that Samsung could technically demand that Apple remove those capabilities (which would be hilarious) or face a ban.

        It's a stupid patent, but it's one they *MIGHT* be able to get some traction with. I still can't imagine they could begin to counter all of the stuff Apple is trying to hit them with.

        • http://www.androidpolice.com/ David Ruddock

          They have decided in this case that the definition of an applet is "a sub-application running within an application." Which, as I understand it, is basically something like a Java applet, or Adobe Flash. From what our helpful commenter above said, it sounds like what is going on here is much more like a service in the Windows sense of the word - a small background program (eg, print spooling) that tasks can be sent to from another application as necessary, but is in no way dependent on the application itself.

          An applet would by this definition be killed if the host application ends (again, Java and Flash as examples).

          I'm also unsure that mode and state really are interchangeable in the legal / patent sense, and this is the kind of stuff that can make or break patents. They're certainly distinct enough that each has its own Wikipedia page:



          It seems to me that modes are more related to the configuration of a user interface, while states operate under a broader definition. But I am not a programmer, so really, I have no idea if I'm just spouting crap right now, that's why I didn't really delve too far down this rabbit hole in the article.

          • http://codytoombs.wordpress.com/ Cody Toombs

            tl;dr: Samsung actually should win on the background music patent. I know, this is a LONG post... Nobody should suffer through it if they don't care.

            David, please know, I'm not arguing with you :) I'm arguing with the bad terminology used in the patent and how it's likely to be interpreted in court. Also, the first bit is more about being informational, only the last bit should be read with a slightly angry attitude ;)
            From a purely technical sense, 'sub-application' is a meaningless term. Think of George Carlin's rant about 'pre-boarding' a plane, you can't get on before you get on. There's nothing that actually defines a 'sub-application'. It's a loose parlance that people might use to say that an application is somehow of a lower value or lower status than another related application, but that's purely non-technical. In a way, you could say that ANY software running within a "runtime" would fit within the parlance, and that's basically any software that isn't the core of the Operating System (ie, the kernel).
            The term 'applet' is only slightly more meaningful, but it's meaning changes significantly within the context of specific technologies, making it inappropriate since the specific technology isn't mentioned. Generally, it is used to define a "small" application (seriously, that's the real meaning...wikipedia is more verbose, but says the same thing). The term actually means something in Java; it defines an application that is embedded in a web page and runs on the JRE. Only Apple, from what I can tell, specifically defines 'Applet' as a purely exclusionary term. Since Samsung makes no implied use of any web stack or Java in the patent, 'Applet' should simply mean 'a small application'.
            In either case, asking a programmer to define these terms to is like asking a chemist to throw in a 'pinch' of the white powder and '3 dashes' of the yellow liquid. They will probably snort the powder and throw the yellow liquid in your eyes, just because they are frustrated with the lack of specificity. Yes, we programmers tend to be a pedantic bunch ;)
            I know from experience (based on iOS 4 and earlier, it may have changed in iOS 5) that the Music* app contains the service object used for background music (in this case, 'applet' or 'sub-application' is 100% appropriate, a service is just an application that is run with special permissions). If choosing to use the term 'Mode' as a term for interface as the wikipedia article defines it, then the iOS app is even more fitting to the definition.
            You mentioned the applet should be killed if the host application ends;I just checked, when the Music app is killed, the background service is too.
            I'll take a moment to act like a know-it-all internet jerk, just to illustrate the point. If using this terminology, anybody who claims that the iPhone and iPod Touch are not violating that patent, by the opinion of an expert, is WRONG. if the terminology were stricter (as it should have been) or the whole patent never granted (well, it shouldn't have been), then I couldn't say anything with determination... Frankly, if the terminology and definitions match up with what's been discussed here, the way the iPhone plays background music becomes a letter-perfect example of the patent.
            * Before anybody complains, let me be specific. I am referring to the iOS app as the 'Music' app as it has always been called on the iPod Touch, but the iPhone had a different app by the name 'iPod' which merged the music and video apps into a single interface. In iOS 5 the iPhone lost the 'iPod' app and went to having 2 apps just like the iPod Touch does. The way the Music background service worked was identical in both scenarios.

            Alright, high-five to anybody who read all of that ;)

          • http://www.androidpolice.com/ David Ruddock

            My immediate thought is if the term really is that confusing, a jury will never understand it, and never be able to find infringement. And if the definition is that unclear, the patent is invalid for vagueness. I've discussed this with a couple other programmers and the consensus is that based on the definition they're using in this case, an applet is not like a "service."

  • mikeym0p

    I foudn it hilarious when I unboxed my GNex and what appeared to be a blacked out iPhone wall plug and cable, it looks slick and I always took it as a partial jab at Apple's anti-competiveness.
    However there isn't much you can do with the wall plug once it's that small and I can imagine all OEMs having the same cabling and boxing.

  • Seth M

    Couldn't it stand to reason that Apple "pioneered" (give them a little credit for making a box with rounded edges) the new age of smartphone appearances, and that they started a new trend for how phones look? Generally the companies that are the first to do something don't try to sue the crap out of anyone that follows.

    • Brfield

      They should be flattered that others are following in their footsteps after their pioneering innovations. Instead, they will litigate until someone runs out of money. When they are the only ones left, they will start the slow down the updates, and release more devices with less features train again.
      We need companies who aren't afraid of making a device that could flop, companies willing to look ahead and implement anything they can. Push technology forward and let others play catch-up. As you innovate, they will be forced to adapt or die. This is why we have the tech we do.
      If nobody ever tried to get ahead, we'd all still be walking instead of driving, writing letters instead of emailing and texting, there'd be Kings and Queens ruling us (but I digress). These companies need to push forward and stop the litigation games.

      That's actually a good name for Apple's new startegy - The Litigation Games.
      Could be a movie lol. Happened with Facebook

  • Andy_in_Indy

    I had not thought of the square icons as iconic of Apple, but I guess they all are. Since only some of the Android apps use square icons, that works in Samsung's favor. The elements of the iPhone that I always found distinctive are the 4:3 display (very unusual in a widescreen world) and single round button on the face. Also, the corners on the Samsung phones do not appear to be equally rounded (the top look rounded differently than the bottom) - it that just an optical illusion? Also, didn't the German judge last year state that the minimalist design made the iPad/iPhone hard to give design protection?

  • MicroNix

    I'm sorry, but despite the author making nothing of it, the Prada has very key elements that are prior art. The rectangular shape with rounded corners, icons on the screen with a common area "launch bar", touch enabled. It is the Prada that is going to be the secret weapon that actually should make it look like it was *Apple* that stole the design. It doesn't matter if the Prada was popular or not, if 1 unit was sold publicly, then it is indeed prior art worthy of damning Apple's defense. It will just matter how many members of the jury have iPhones in their pockets. The jury should be all dumb phone users with no affiliation to either product.

    • http://www.androidpolice.com/ David Ruddock

      Elements are not what constitute prior art in terms of a design patent - it is the design taken as a whole. And as a whole, there is at least room for debate. Design patents are really misnomers, in a way, because they're not treated very much like patents at all.

      • zackb07

        I know this is technically an Android site, but you seem heavily biased.

        • http://www.androidpolice.com/ David Ruddock

          I'm super biased. By the law. Spoiler alert: I don't actually want Apple to win. I'd love to see some of these patents (especially the software ones) invalidated when this is all said and done so that we can put this ridiculous and messy litigation behind us.

      • Hobbesian Meliorist

        Are you aware of the Palm LifeDrive, from 2005? Are Samsung's lawyers aware of it? There are some pics here: http://www.mobilehub.fr/2006/05/01/test-palm-lifedrive-par-mobilehub/

        Notice, (1) rounded rectangle shape, (2) prominent central button below the screen, (3) scrollable grid of icons filling most of the screen, (4) static row of icons along the bottom, (5) narrow bar along the top showing battery level and time.

        This product predates Apple's Sony-inspired design drawings by about a year. I therefore submit that Apple blatantly copied the design of the Palm Lifedrive in every essential detail (amounting to copying the design as a whole), and applied Sony's design language only to the finish (i.e., textures and colours, and small details).

        It might be useful for Samsung to cite the Palm LifeDrive in evidence when claiming that the resemblance of the Samsung Galaxy and Galaxy II to the iPhone is merely a family resemblance, and that very few of the features that Apple claims constitute the iPhone's trade dress are actually distinctive, since they most of them appear in the Palm LifeDrive. An obvious exception to this is the icons all being rounded squares - the Samsung Galaxy phones do not have this feature. Their icons are of various shape.

        The really important thing, though, I think, is that trade dress is only infringed if the appearance of the offending product is deceitful, and given that Samsung's branding is so prominent on its products, Apple could find that they have an uphill battle on their hands when trying to persuade a jury that Samsung's product styling is deceitful.

        • http://codytoombs.wordpress.com/ Cody Toombs

          An interesting question, since it's easy to demonstrate. As a defense, is it possible to show a progression of product designs towards a current design. Frankly, this looks nothing like an iPhone or SGS, but combining this with a few other products over the course of a few years (in order) if does look like the entire industry was already headed that direction.

          One point on this product, was it ever released in the US? If not, I believe I read previously that the courts tend to throw out a lot of examples like that.

          • Hobbesian Meliorist

            Yes, the LifeDrive was available in the US from about May 2005. It was developed by Palm Inc., which was a Silicon Valley company (later absorbed by Hewlett Packard).

        • http://www.androidpolice.com/ David Ruddock

          This is no where near close enough. The LG Prada, again, is far better prior art.

  • kgballa

    2 things

    1. Sep 7, 2005 rokr is released a phone by moto/apple - http://goo.gl/r3ej8

    2. Jan 9, 2007 Apple reveals the Iphone - http://goo.gl/IZN7e

    so In the history of apple they have never collaborated with anyone on a hardware/software device so why partner with motorola on a phone with limited hardware and you could only store 100 songs at a time. Steve Jobs wasnt even interested in it!!!!! watch his intro http://youtu.be/TWSRgsk2oaw

    if they we're planning on releasing the iphone 1 year and 3 months later why even partner with motorola?

    if anyone thinks they we'rent designing the iphone is clueless 1yr 3months haha

    They wanted to learn the phone game and basically how a phone is designed.
    without motorola being so stupid Apple would still be making ipods

    • wasabifan

      Wow...Apple pulled a Microsoft on Motorola!

  • Knlegend1

    Hilarious statement! Apple's "conservative" contention is that 10.5% of all infringing tablet sales made by Samsung would have otherwise been iPads based on production capacity and market demand.

  • kgballa

    what happens when Apple intros Widgets, notifications, etc etc basically features android has had since 2008?

    • http://www.facebook.com/vivecuervo7 Isaac Dedini

      I'd love to see Android taking on Apple for those things. Also throw out that ridiculous universal search patent. Why not also pull youtube from Apple devices

      • oneillperson

        ...because that would give otherwise-clueless Apple users a reason to hate Google. The last thing we need is even more unenlightened isheep.

        • http://www.facebook.com/vivecuervo7 Isaac Dedini

          Yes, I wasn't too serious about that, the last thing I want is for Google to become Apple, but still, I doubt iPhone users would be too happy about having no youtube.

    • http://www.facebook.com/vivecuervo7 Isaac Dedini

      I'd love to see Android taking on Apple for those things. Also throw out that ridiculous universal search patent. Why not also pull youtube from Apple devices

  • Moose

    This is why we can't have nice things.

  • http://twitter.com/ToysSamurai Toys Samurai

    This is enough to warn all Android smartphone makers -- don't make your phones look like an iPhone. First of all, it's legally dangerous. Secondly, I, and many Android fans like me, want something look NOTHING like an iPhone. Round corners? Please, give it up. I have friends who aren't even Android friends but want something doesn't look like an iPhone because it's too "common".

  • wakkoman

    Bunch of idiotic commenters here. Just pure fanboyism idiocy. Jesus Christ.

    • MicroNix

      And judging by your posts, you fit right in with the bunch. Now GFY and after that, go back to Apple Insider where fanboys without a clue like you belong.

  • http://twitter.com/physicalist09 Physicalist

    You are just buying into Florian Muellers FUD.

  • TheTruthSquad

    Everyone who is interested in the Apple patent wars should read of the Wright brothers patent wars. They were awarded a patent for the "warped wing" on their airplane that was also written to cover ailerons. To make a long story short, they sued everyone in the world who tried to manufacture an airplane. They even sued air show pilots for infringing on their patents. It was so bad that in World War I, there were no American airplanes so the military had to go to war with French airplanes. The government stepped in at the beginning of the war to create a patent pool to resolve the issue. The Wright brothers spent their time and money on patent lawsuits and as a result built inferior airplanes They went from hero to goat in heir lifetime because of their greed. You don't heat that about them anymore, do you?.
    Now, who does suing or threatening to sue everyone, greed and inferior products remind you of? Things have not changed much since the last century,has it.
    By the way, the Write patent was named the "Flying machine". Maybe Apple should just file for a patent for a "Cell phone".

    • NeedName

      The US government need only insist that if you want to take advantage of the "protection" a patent offers then you MUST also license it at a reasonable rate to all who would like to use it — the US patent system is there "for the good of the public" not just one a-hole, and when a "monopoly" is allowed it does NOT benefit the public whatsoever. Yep, everything would be FRAND. . . then everyone could treat apple like they treat all FRAND patents — don't pay them anything till a court orders it lol.

    • NeedName

      The US government need only insist that if you want to take advantage of the "protection" a patent offers then you MUST also license it at a reasonable rate to all who would like to use it — the US patent system is there "for the good of the public" not just one a-hole, and when a "monopoly" is allowed it does NOT benefit the public whatsoever. Yep, everything would be FRAND. . . then everyone could treat apple like they treat all FRAND patents — don't pay them anything till a court orders it lol.

  • Peterson Silva

    Ok now one thing I keep wondering is why did that designer say the Galaxy S looked so similar to the iPhone as to say that all it needed to do was changing a logo? I mean, it had three buttons. The iPhone had one. How is that not making a huge difference already?

  • Peterson Silva

    Ok now one thing I keep wondering is why did that designer say the Galaxy S looked so similar to the iPhone as to say that all it needed to do was changing a logo? I mean, it had three buttons. The iPhone had one. How is that not making a huge difference already?

  • Mike Majewski

    Considering how awful your analysis of everything else Android related has been...this is one big "meh". It's pretty telling that every patent article you right sources FOSSPatents, which is nothing but an iPhone fanboi site. You've been told better sources and you continue to quote the troll. What's your motive?

  • Mike Majewski

    Considering how awful your analysis of everything else Android related has been...this is one big "meh". It's pretty telling that every patent article you right sources FOSSPatents, which is nothing but an iPhone fanboi site. You've been told better sources and you continue to quote the troll. What's your motive?

    • http://www.androidpolice.com/ David Ruddock

      My motive is just to upset you, Mike. That's really it.

  • http://www.facebook.com/RobJohnson90 Rob Johnson

    "“[a]ll you have to do is cover up the Samsung logo and it’s difficult to find anything different from the iPhone.”"

    Except, you know, a screen that's a decent size, a home button that's a completely different shape to the iPhone's and two capacitive bottons...

  • http://www.facebook.com/RobJohnson90 Rob Johnson

    "“[a]ll you have to do is cover up the Samsung logo and it’s difficult to find anything different from the iPhone.”"

    Except, you know, a screen that's a decent size, a home button that's a completely different shape to the iPhone's and two capacitive bottons...

    • http://www.facebook.com/will.aguilar.2398 Will Aguilar

      Well, lets design a freaking phone that is circular, or perhaps triangular or better yet a cylindrical one. Apple filed a patent for a shape that is best for phones and almost impossible to freaking infringe. Man apple needs to back off and let company's continue their jobs.

    • John O’Connor

      Not to mention you don't see them being placed side by side for actual comparison. Anyone with half a brain can see huge differences in size and scale if the devices are right next to each other. Apple is only shooting themselves in the foot everytime they streeeeeetcch the truth by trying to scale the images so that the devices look near identical. the iphone looks like a tiny teenage girls toy when compared to any android superphone

      • Alan

        Agreed, Samsung should show the iPhone and a SGS3 side by side. That would seriously screw crApple in the alleged design patent infringement.

  • Jon Garrett

    I wish Steve Jobs was alive cause then Id kidnap him, torture him and then kill him by beating him over the head repeatedly with a 1990's era flip phone.

  • Jon Garrett

    I wish Steve Jobs was alive cause then Id kidnap him, torture him and then kill him by beating him over the head repeatedly with a 1990's era flip phone.

  • Phillip Hagger

    I'd just like to point out that Florian Mueller had this same sort of doomsday forecast before the Google/Oracle trial. Intelligence prevailed. The jury does have to ask themselves how else can you make a touchscreen device. And even if Samsung didnt release the devices it does show that they already had the ideas and did not get them from Apple. Mind you there's also the fact that Apples own documents show that they got the designs from Sony. It again all lends to the fact that there's not that many ways to make these devices. You hand this one to Apple and you're basically saying no two products from different companies can look similar even though they perform the same function.

    • http://www.androidpolice.com/ David Ruddock

      I'm not "doomsdaying" anything - predicting the outcome of a trial like this is literally impossible. I'm saying based on an analysis of the briefs and intellectual property at issue, it looks like Apple is going into this with the upper hand legally.

  • Southrncomfortjm

    Great in depth look. The biggest wild card here is the jury. Jury are notoriously hard to predict and are also notorious for misunderstanding the evidence and the law.

    In other news, glad I already own a GNEX... maybe I should get a second one in case things get really bad.

  • http://www.facebook.com/rob.mahon Robert Mahon

    Still confuses me when you have;
    showing the 'design' of the iPad years before the iPad was even admitted to exist, remember, lot of people expected them to bring out something, but there'd already been other tablets out before then. When I first saw the iPad, I thought 'oh, it's a slightly shrunk joojoo tablet'.
    That picture showing 'before the iphone/ipad, after' I'm glad Samsung have fought back here and said 'no, there's lots of phones before then' Even the Palm Lifedrive;
    in 2005, has that shape. Everything since that, sure, things shrink down, a bit more polish, but it's all evolutionary obviousness, not revolutionary stuff created from nowhere.

    The iPad shape/design itself was seen before in 2004;

    There's an incredible lack of awareness here. And that picture of the packaging I don't get either. I've got a GalaxyTab7 and the plug doesn't look like that, and the box is blank, not white. So... you could get the tab in Black OR White? At the time (if I recall) there wasn't a white iPad (iPad2 was the first time they brought out a white model?). Apple's doing a lot of history editing here, and most of us remember the facts as they occurred, it wasn't that long ago.

    • http://www.androidpolice.com/ David Ruddock

      The iPad design patent was filed in March 2004. That's probably the major point of confusion here.

  • Ed

    Although HP wasn't very successful with its TouchPad, it looks far more similar to an iPad than any Samsung tablet. I'm quite surprised that apple has not sued HP over the design despite its total failure.

    • oneillperson

      You've got a good point, that the Touchpad looks way more like an iPad than a Samsung tablet. But since Touchpads didn't even touch the sales of the iPad, it's not a threat and thus Apple doesn't care.

    • Manny

      Why would apple sue Hp ? How many Touchpads did Hp sell.? 0 Hp lost money on everysale.. remember ?

    • http://codytoombs.wordpress.com/ Cody Toombs

      That really does raise an interesting philosophical / legal question. Trademarks have to be actively defended against all violations while patents can be left for years and the owner can wait until the violator becomes very successful before suing. Frankly, design patents, from an outsiders point of view, seem to be covering things that are more similar to a trademark than it is to an invention. I don't think Apple is justified in complaining about dilution by one competitor if they let so many others get away with it. No denying that Samsung is the worst offender, but many others have crossed a lot of these lines.

  • 1ofdakoolkidz

    This is why Google needs to , unfortunately make android closed source and start putting patents on everything because android will always be sued, even if they created it they can't patent it because Android is open source and free to all. If Android was close ended they would have crippled apple by now with all the clear infringement that apple has done. Google should permanently ban the sale of all iPhones in the US with the Motorola patent and force apple to drop suit against all Android manufactures when it comes to any UI elements.

  • John

    If you can't innovate, litigate.

  • David O

    Wishing crApple the best of luck in proving that Samsung financially hurt them, when the iPad still outsells any Android tablet, at what, nearly 3-1 still. And, during the thick of their claim the iPad was selling nearly 6-1. What is most important is why is Lucy Koh dismissing some key elements to Samsungs defense?

  • http://codytoombs.wordpress.com/ Cody Toombs

    It seems Samsung could use a defense that the change in software dictated a change in physical design to favor a larger screen that's dominant to the interface. The natural flow of that defense would be to argue a minimalist approach was natural and it's an absurdity to insist on designing to the point of excess when minimalism is suitable. Iconic or otherwise, I think most juries would be swayed in Samsung's favor with the argument that you can't truly patent "nothing" as a design (I'm talking purely about the tablet, I think they are more screwed on the phones). Wasn't there also something about a tablet being used in the movie '2001: A Space Odyssey' that matched the iPad? I realize the tablet itself wasn't released as a product, but it certainly can't be argued that nobody else is allowed to copy something from a movie.

    I notice that there's a couple of mentions that previous efforts to enter evidence are being shot down by Lucy Koh, and without full knowledge of the situation, it's not clear if Apple is suffering the same fate... But I really doubt it. I mentioned it in another comment earlier today, I really hope Samsung files to have her removed from the case. She's demonstrated some pretty clear signs of bias and given the multiple connections she and her husband have had with Apple, she seems about as honest as a drug addict looking for their next hit.

    I don't like being a cheerleader for a company, mostly because I know they wouldn't do the same for me, but I hate to see this level of absurdity. I could shrug off the stupid little law suits where companies traded a few million here or there, but this is too big. There's enough money at stake to start an entirely new competing mobile OS and manufacture the hardware. If Apple wins, it is legitimately damaging to society and technology.

    • http://www.androidpolice.com/ David Ruddock

      There is a reason this case has a jury and an appeals process post-verdict. The judge's influence over the outcome is certainly there in terms of evidentiary exclusions, but to call her credibility into question is something that I, as someone who studies the law, find to be a very, very low attack. Particularly in a civil case.

      Judge Koh has been diligent in keeping both parties honest, and has by no means favored Apple through the entire process. She has, however, plenty of reason to be hard on Samsung - any company that "forgets" to turn off the corporate email shredder when they have pending litigation is simply asking for a judge's ire. Samsung claims Apple also deleted a few things it shouldn't have, but certainly no where near the scale of Samsung. Destruction of potentially relevant evidence guarantees you a spot in the dog house with any judge.

      The Space Odyssey tablet isn't close enough for prior art. That argument may have had some luck in the Netherlands (though even that luck didn't go far), but I really doubt it'll have traction here. They have a far better bet with the Fidler tablet, but even that has some differences. Compared to every other 10.1" tablet on the market, you have to admit, the Galaxy Tab 10.1 looked more like the iPad 2 than any other that wasn't some Chinese knockoff. I actually think Apple's strongest claim is against the Tab 10.1 for trade dress infringement or dilution, both of which carry the same financial repercussions as design patent infringement.

      I think that even though it feels more like Samsung copied more brazenly with the Galaxy phones in your gut, legally, it's going to be a lot harder to show. The Prada phone is a strong defense against the design patents (but I haven't heard Apple's counterarguments to it), and the GUI design patent is going to run into all sorts of confusion with app drawers not being central and widgets being part of the Samsung look. Screen size could even play into things like trade dress, who knows. It'll all be very interesting to watch unfold.

      • http://codytoombs.wordpress.com/ Cody Toombs

        Believe me, on the subject of challenging somebody's credibility, I understand where you're coming from. I've defended more than a couple of developers simply on the basis that I know what they are doing and why some things are really challenging while outsiders think it should be really simple and obvious. Frankly, I find it hard to see Judge Koh as defensible. She's made public comments that read like a lawyer who just won a case for their client. Just from an outside perspective, she's also got a lot of ties to Apple, both present and past. To pull a term from the realm of criminal law for a second, she has both motive and means...

        I agree, any judge should be smacking Samsung pretty hardily. They have been doing a lot of very stupid things. Of course, based on the stunts that Apple has pulled in other countries and in other cases, I have trouble believing they are walking a straight path on this either.

        Yeah, I knew the Space Odyssey thing was a long shot, and I never caught the details of how it turned out... I only knew that Samsung had tried it. Given that we're effectively talking about patenting a style and not a process or engineered design, it would only make any sense that the concept of prior art should extend beyond similar products.

        Truth be told, I think Samsung is in the wrong, and I've long thought that they were copying too much from Apple. I'm not a fanboy about it. I really can't be when I've joked for the last 2 years that Samsung was trying to make products that pretended to be iPhones (uh oh, here come the downvotes). I don't see a justification for penalties so large that you could buy Instagram 7 1/2 times :) The justification for design patents actually is to stop companies like Samsung from copying companies like Apple, making this case legitimate. The amounts simply aren't reasonable, not given the level of differentiation that still exists between the two product lines. Ideally, I want to see Samsung win on the background music patent (which I really think that one could turn out to be pretty big), and I expect to see Apple win a reduced penalty for design patents. A part of me is hoping for Karma to kick in and Apple loses everything, but that's because I want to see the scales balanced in the big picture, since Apple deserves to pay for their other crimes...so to speak...

        • http://www.androidpolice.com/ David Ruddock

          Remember, Samsung is a multi-hundred billion dollar corporation. The goal of a damages ruling is to make it so the defendant learns "hey, you really shouldn't do this again." Billions of dollars is a lot for almost any company, but when we're talking about the Apples and Samsungs of the world, you have to remember how comparatively little that is for them. Samsung's annual revenue in 2011 was something like $150 billion.

  • http://www.facebook.com/hendersonm66 Mike Henderson

    Too late, the S3 is out there and selling like hit cakes:)

  • fr3ak3d

    iFucking Apple, can't bring a new design and now does business with their lame patents.. haha

  • f.u.

    androidpolice is more like applepolice

  • exiss

    funny how now almost every touchscreen phone looks the same, not even mentioning the tablets. I think that even my acer iconia looks as ipad the only difference is the acer logo on the front. apple have always been trying to take as much money as possible out of normal people now theyre trying to claim that samsung stole their design LOL. to me it just looks like theyre scared of galaxy s 3 and the new galaxy tab so theyre trying to damage the company but hopefully it wont work ;)

  • http://www.facebook.com/profile.php?id=100001787532403 Michael Wisniewski

    Is Apple shooting themselves in the foot? If they sue Samsung and Android out of business, then won't they monopolize the smartphones, and can't Samsung then sue them for forcing consumers to get their products? In any case, all these patents are ridiculous. Maybe GM should have patented air conditioning in automobiles and then sue everybody for it.

  • Knlegend1

    Did I hear that Apple just got a patent for NFC?

  • nallan

    Unbelievable. The Galaxy Tab basically is a 16:9 format and iPad is 4:3 format. They look very different. The galaxy tab is totally a different specification. Motorolla had a smart phone released 2005/2006 and iPhone has lots of resemblance to that. A phone has to be rectangular and using patents to circumvent Monopoly trade is not a good way for a reputable company . Apple should live on their lead on technical innovations like retina display for example. Intgration of music, fm radio, email and lots of other integration has benn there even before Apple came in to the picture

  • http://www.facebook.com/profile.php?id=1653571802 Debadatta Bose

    Haha about the MP3 player design from Sony. Have a look at this:

  • Travis Pool

    But Apple sucks.

  • Stocklone

    Regardless of the outcome we eventually will put this all behind us. Google will write around all of the patents for the software and companies will design around the design patents for the hardware. Eventually Apple will have nothing worth bitching about and judges will laugh them out of court when they try to bring anything up in the future. The GS III is proof Samsung can make products that look nothing like the Apple counterpart and still be incredibly successful. Google cementing and evolving their design language will only push Android farther and farther from iOS with each new version. I'm not worried because I know engineers and designers outside of Apple have just as much talent and capability. Ideally I would love to see Apple get hammered in this case, but even at its worst it does little to stop Android in the long term.

  • woobaker

    the utter stupidity of it all is this is what things evolved to and are supposed to look like. Old Palm stuff had these capabilities and to some degree looks and were just not black and as sleek as our modern devices. I dont see TV manufacturers suing each other. Dont must plasma lcd led TVs and computer monitors all look the same? I mean really, you have no idea who makes what till you go looking for the brand name. what about the computer mouse or keyboards. they are all the same. garage door openers the same. refrigerators and dishwashers..the same.

  • jusatin

    Just can't wait to for Samsung to have to find a new design..

  • Hobbesian Meliorist

    Regardless of prior art, the existence of the LG Prada (which I do remember, by the way, so not quite all of us have forgotten it) combined with the fact that Samsung were producing prototypes in 2006 that looked similar to the yet-to-be-revealed iPhone suggests that a defence of obviousness should be successful. If the idea weren't obvious, why would three separate companies - apparently independently - come up with the same rounded-rectangle design?

  • Amanda Rae Lockwood

    I tried with a very open mind to see any resemblence between an apple phone and samsung phone None:: All this is, is a spoilt brat (APPLE) about not wanting to share the toys. I have been an apple customer for many years, but not now.

  • Fredy Nativi

    And by writing this your helping the android community how??? You just gave more things for apple to point out.

    • Stylus

      Do you really believe that a multi billion dollar corporation like Apple, with access to some of the best lawyers in the business, would need to study android fan sites for help with their lawsuit? Don't be ridiculous.

  • Manny

    Everybody here seems to forget a major point which is brought up in the article. On more than one ocassion Samsung was warned that their products were to similar in design or look to the iphone and ipad and fact is that this can not be at all a coincidence being that the first iphone was made with samsungs help. Today they help make an iphone and tommorow they release a phone that looks exactly like it.

  • Joe Mama

    Samsung = iSheep wannabe

    • MicroNix

      Samsung = improving on existing technology just like the iPhone did in 2007.

  • http://www.androidpolice.com/ David Ruddock

    Because Jobs' comments are not relevant to the merits of any claim involved in the case. They might be relevant to an anti-trust claim, but they clearly have no bearing on intellectual property.

  • http://twitter.com/Darkmyth_pt Darkmyth PT

    can someone put side by side a photo of a 2006 samsung lcd tv and an 2007 iphone? and look how they look alike??

    • http://twitter.com/Darkmyth_pt Darkmyth PT

      just put the power button on the side and rotate 90º

  • Johnathan Higginson

    This article was amazingly informative, eye-opening and very clear/easy to read. Nicely done. I'm in no way ever affiliated with Apple but Samsung is very clearly going to get their asses handed to them on the account of trade dress infringement. Hypocrisy is based on the voracity of the evidence presented. Its not by any means a final blow to Samsung they will still keep on creating some(as usual) quality hardware for android as they do now.

  • jm1280

    So let me get this straight, Apple is basically trademarking a shape? Just because they made a rectangle phone with rounded corners no one else can make one? So now they are limiting the competition to making square phones only? What if Samsung made the first square phone? Nokia will then have to make a triangle phone? I can go on all day with this. How about focusing on making a better product and not mucking up the courts with your crap. You were already the fist to the game and still bitching. The only reason Android is ahead in the smartphone market is because of the volume of devices offered. This is why I will never buy another Apple product and tell everyone I know never to buy one.

  • rweb82

    The most funny thing about all this, in my opinion, is that if Apple succeeds with all of these patent infringement lawsuits, then they are basically killing the best marketing strategy they have. Every time someone confuses a Samsung Galaxy S for an iPhone, that's a win in the "brand image" column for Apple. Why would they want to kill this? The misguided perception of the public right now is the only way the iPhone is still superior to an Android phone. Once that is taken away, the only thing left to look at is the specs and OS- which would basically spell the end for Apple as we know it. I hope they get what's coming to them. They're gettin' greedy, but soon they'll be needy!

  • kibox

    i see an apple fanboy

  • http://www.facebook.com/people/Rusty-Harris/1057067818 Rusty Harris

    Well, (at least in the USA), considering how inept the public is, how uninformed they are about 99% of what is going on, except for which Kardashian is sleeping with whom, if 2 devices look similar, given the above, I could see where one could get confused.
    Of course, all they have to do is look for the rather LARGE APPLE LOGO splashed across the back to be sure.