SEO Werkt!

In an opposition filing on Friday, Samsung argued the Apple v. Samsung jury should hear testimony from Hyoung Shin Park, principle designer of the contested F700 smartphone that the company’s attorneys want to use as proof of non-infringement on Apple’s design patents.

Samsung’s Galaxy is bigger, lighter, and has a plastic back. Apple’s iPhone 4s is smaller, heavier, and has a glassy/metallic back. But these differences didn’t stop Susan Kare, the designer of the original Mac icon set, from confusing the two.

And it happened while she was comparing the two smartphones when prepping for her expert witness testimony for the Apple-Samsung lawsuit.

Kare helped create the iconic look and feel of the original Mac. So she should know a thing or two about design … and she should be adept at reading a design language … the hard-to-define but very real visual personality of a product or brand.

And yet she confused the two products, according to her testimony today in court.

Presumably, Kare was fooled by the home screen on some of the older Samsung models, where the design language is indeed somewhat similar to Apple’s iOS:

Source: http://www.blogsolute.com/root-samsung-galaxy-s-i9000-tool/9858/ and http://www.christiananimereviews.com/guides/enablejapanesekeyboard-iphone-itouch.php

iPhone vs Samsung

Similarities include a top bar for utility icons and time, an icon grid four across and potentially five down, and of course the home icons at the bottom, resting on a shelf or different colored background.

Newer Samsung Galaxy S3s, on the other hand, are almost always portrayed in official Samsung promo shots with only a few icons and fewer obvious similarities:

Testimony like Kare’s is dangerous for Samsung since the jury may, according to intellectual property expert Peter Toren, simply eyeball the two options when making a decision:

While design patents are litigated far less frequently than utility patents, and many companies do not even seek design patent protection, infringement of a design patent may be far easier for a jury to understand. A design patent protects only the ornamental appearance of an invention, not its utilitarian features. The general test for infringement for a design patent is relatively simple: Does the alleged infringer’s product design appear substantially the same as the patentee’s design?

While a patentee can buttress its evidence of the similarity of designs through the testimony, for example, of industry observers, consumers, and business partners, jurors can use their own eyes for a side-by-side comparison and decide for themselves if the products look substantially the same. It certainly does not depend on understanding highly complex technical matters.

The implication that Apple lawyers are doubtless attempting to insinuate in the jury’s mind: If a designer cannot tell the difference herself … how can the average person?

Of course, Samsung may well feel that Kare originally worked for Apple may have some influence on her impressions.

Image credit: Yuri Arcours/ShutterStock

Filed under: mobile, VentureBeat

In the case of Samsung vs. Apple, one of the biggest tech trials on U.S. soil, today’s been all about Peter Bressler, one of Apple’s expert witnesses. He’s fought with Samsung lawyers, and affirmed just about everything Apple has accused Samsung of. As an inventor or co-inventor on about 70 design patents, and a former expert witness in seven other trials, he is nothing short of an expert. But how much is that worth?

Samsung’s counsel, Charles Verhoeven, asked Bressler point blank how much Apple has paid him to be an expert witness in this case. “So far?” Bressler asked. “$75,000.”

Who knows how much that figure will grow to by the end of the four week trial. Oh, and don’t forget Apple and Samsung have another massive battle planned for next year, regarding newer models such as the Galaxy S III.

Mr. Verhoeven also made sure to show the jury that Bressler does this for a living. Verhoeven mentioned that Bressler advertises himself as an expert witness on a website, which is currently under construction.

In either case, it’s totally normal for an expert witness to be paid for their help on a trial. It takes a lot of time and energy to do the research necessary to testify on the case. I mean, just listening to Mr. Bressler’s expert testimony was exhausting to me. I can’t imagine how he’s feeling.

A major factor of the Apple v. Samsung case has been whether consumers are confused when purchasing a Samsung device, believing it to be one of Apple’s iThings.

Peter Bressler, Apple’s expert witness in the Apple v Samsung case, just took the stand and cooly confirmed all of Apple’s claims against Samsung. But during cross-examination, Samsung’s counsel started throwing some punches with regards to prior art. Bressler had originally said in his testimony that the prior art he had analyzed has no bearing because of minor differences, such as a curved front rather than a flat one, as on the iPhone.

To combat this testimony, Samsung counsel introduced four different versions of prior art, including the 2005 Sharp design and LG’s Prada smartphone. With each example, Samsung counsel went through a checklist of questions: Is it rectangular? Does it have rounded corners? Does it have a balanced screen (centered both horizontally and vertically)? Does it have a speaker grill?

Bressler answered “Yes” to most of the questions presented to him, but not without throwing out objections to the way patents and prior art were being analyzed. Samsung counsel was only showing the front view of each piece of prior art, rather than showing all eight views of the devices.

“This is not how you review figures in patents,” said Bressler. “I believe this is a distorted view of how one should analyze a patent.”

Then Samsung counsel moved to specific Samsung handsets with regards to Scott Stringer’s July 31 testimony on one of four design patents Apple is asserting, ’087. Stringer said that it was important that the bezel be of uniform thickness all the way around, that it should be nominally flush with the front glass, that the corners all have equal radii and that the losenge shaped design of the speaker grill be centered both horizontally and vertically on the phone. He also brought up Stringer’s testimony on the iPhone’s “black oily pond,” which is a reference to the minimalist black front face.

Samsung counsel then tried to go into very detailed, minute differences between this patent’s embodiments (specific features in patents are referred to as embodiments) and both the Infuse 4G and the Galaxy S 4G. He said the Infuse 4G doesn’t have a bezel, and if the casing it does have were to be called a bezel, it’s much wider than the iPhone’s (and the ’677 patent). He mentioned that the radius of the corners on the Galaxy S 4G aren’t actually equal — the top has a 10mm radius and the bottom 13mm.

He went on and on, showing various buttons on Samsung’s handsets to show a distinction between Apple’s black oily pond and Samsung’s buttoned, branded front face on the Infuse.

To almost everything that was asked of him, Bressler explained, “I believe the ordinary observer gets an impression of an overall design,” he said. “The ordinary observer doesn’t view one element of the design at a time.”

We’re just commencing Week Two of the Samsung v. Apple trial in San Jose, and Judge Lucy Koh opened the day with a joke, saying that there had been a false hope in her heart this weekend that the two would settle. But these two electronics giants are still ready to battle it out, and have brought Justin Denison, Samsung’s Chief Strategy officer, back to the stand.

After some questions about whether or not STA sells directly to consumers, and whether Galaxy phones are different from one model to the next, Samsung’s lawyer Mr. Quinn was about to actually make a point.

He mentioned that throughout the trial, there have been comments such as “Samsung is in a crisis of design” and “the difference between the iPhone and the Galaxy phones are like heaven and earth.”

Since Apple’s asserting that four of its design patents and one trade dress registration were infringed, any proof that Samsung was trying to copy either specific patented features or general Apple-esque aesthetic in its handsets would be damaging to Samsung’s case. While mention of a crisis of design don’t prove conscious copying, it could certainly push the jury to believe Samsung was letting competition from the iPhone affect design choices.

Quinn then laid out a series of questions, asking about Samsung’s general “style of communication for management to motivate employees.” Denison answered with the following:

Samsung does an excellent job of remaining very humble, self critical, and maintaining a sense of urgency within its own ranks to drive hard work and innovation. We want to change so that [Samsung] never rests on its laurels and becomes complacent. So you hear a lot of hyperbolic statements, “crisis of design,” “heaven and earth.”

Quinn then asked if there are any graphic examples of this type of communication within Samsung, which felt like a small win on the horizon when Denison brought up a famous story within Samsung. He unfortunately also mentioned that he wasn’t there for this, and had only heard about it, allowing Apple counsel to object on the basis of hearsay and have any comment on other graphic examples of hyperbolic communication overruled and thrown out.

Mr. Quinn then asked how Denison felt about Apple’s accusations that Samsung had “ripped off” Apple’s designs, a phrase Apple has hammered home since the trial’s very beginning.

I find it very offensive. At Samsung, we’re very proud of the products we produced, of all the hard work that goes into bringing a product to market. We’ve been in the mobile business for 20 years globally, been in the U.S. for 15 years, and for the last four years we’ve been number 1 in the U.S. market. What we would like to be able to do is just compete in the market and continue doing what we’re doing.

Denison listed certain features that Samsung had added to its phones before Apple, such as voice recognition/voice command capabilities, advanced screen tech (Super AMOLED), and cloud video services. Quinn asked Denison if he felt like Apple ripped off Samsung when Cupertino included these features in their own devices, to which Denison responded that he didn’t feel ripped off or outraged the same way Apple has felt during the course of this cases.

“If Apple comes out with the iPhone 5 and it has a bigger scree, more like the size of the Galaxy S II screen, will you regard that as copying?” asked Mr. Quinn. And right as rain, Denison answered no.

Then Apple’s lawyer, Mr. Lee, stood to cross-examine. He mentioned an internal Samsung investigation before the trial, and asked Denison if he’d seen any documents wherein Samsung mentions a “crisis of design” with regards to Apple’s iPhone. “I can’t recall,” said Denison. “There are many documents I see in preparation for this testimony and testimony in other cases.”

Lee then “refreshed his recollection,” bringing up a document that stated the following: “It is a crisis of design. The iPhone’s emergence means that the time we have to change our methods has arrived.”

And then Lee pointed to another internal document: “All this time we’ve been paying all our attention to Nokia and concentrated our efforts on things like Folders, Bars and Slide, yet when our UX is compared to the unexpected competitor Apple iPhone, the difference is truly that of heaven and earth. It’s a crisis of design.”

Denison explained again that this is a typical type of hyperbolic statement you’d hear within Samsung.

“So can you provide documents where Samsung has said the same types of things about Nokia?” asked Lee.

“I am not sure how I’d do that,” responded Denison.

“The answer is that you can’t,” said Lee. “The only mention of ‘crisis of design’ in all of Samsung’s documents is in reference to Apple after the iPhone’s introduction in 2007.”

On Friday, he went toe to toe with Apple’s lawyers who threw out internal documents that show Samsung’s purposefully trying to tweak the home screen layout of their phones to differentiate from Apple. “Remove a feeling that iPhone’s menu icons are copied by differentiating design” as one of the “directions for improvement,” it read. Denison, however, did a great job combating this once approached by Samsung counsel, explaining that rounded corners, slim bezels and fully touchscreen candy bar handsets were more of a necessity and a general direction of the industry rather than a design choice.

Apple and Steve Jobs’ strategy of obtaining intellectual property protection for every and anything possible may be about to pay big dividends in the “patent trial of the century” that is currently taking place in a federal courtroom in San Jose, California. Apple is seeking over $2 billion in damages (which can be trebled if Samsung’s infringement is found to have been willful) and an injunction barring the sale of certain Samsung smartphones and computer tablets in the United States.

Most patent trials can be tedious and boring affairs involving complex technologies and the construction of difficult to understand utility patents. However, by protecting its well-known products using all types of intellectual property, including design patents, Apple has been able to turn what could have been a month-long patent litigation trial involving a number of highly technical patents into what it hopes is a simple referendum on whether Samsung copied the appearance and graphic user interface of the iPhone and iPad. Considering the similarity of Apple and Samsung products, Samsung may have a difficult time convincing the jury that there is more than meets the eye and that Samsung should not be held liable for infringement.

There are two general categories of patents that can be obtained from the United States Patent and Trademark Office, utility patents and design patents. Utility patents are the most common type of patents and generally involve the way an invention is used and works and may be granted to anyone who invents a new and useful method, process, machine, device, or any new and useful improvement of the same. In this case, Apple is asserting that Samsung infringed three Apple technical utility patents involving features of a multi-touch user interface.

While design patents are litigated far less frequently than utility patents, and many companies do not even seek design patent protection, infringement of a design patent may be far easier for a jury to understand. A design patent protects only the ornamental appearance of an invention, not its utilitarian features. The general test for infringement for a design patent is relatively simple: Does the alleged infringer’s product design appear substantially the same as the patentee’s design? While a patentee can buttress its evidence of the similarity of designs through the testimony, for example, of industry observers, consumers, and business partners, jurors can use their own eyes for a side by side comparison and decide for themselves if the products look substantially the same. It certainly does not depend on understanding highly complex technical matters.

In addition to the utility patent infringement claims, Apple has accused Samsung of infringing a tablet design patent and graphical user interface patent for the iPhone. Thus, instead of having to convince the jury through highly technical evidence that Samsung infringed a number of utility patents, Apple can argue to the jury that the products are so physically similar that Samsung must have copied the designs from Apple and that the jury can make this determination with its own eyes.

In comparison to the relatively easy-to-understand Apple design patents, Samsung’s counterclaims against Apple involve Samsung’s patents covering the inner workings of cellphones. Such claims are technologically complex, and two of Samsung’s patents are “standards-essential patents,” which protect inventions that are incorporated into broader technology that an entire industry has agreed to use. Samsung alleges that it offered to license two standard-essential patents to Apple on fair terms, as legally required but that Apple refused and used the technology for its iPhones anyway.

While the law in this area is unclear, a recent decision by an influential jurist suggested that remedies for claims of infringement of a standard essential patent are limited.

The Apple-Samsung trial is expected to take a month. Both sides are expected to offer evidence supporting their claims and defenses from a variety of sources. Much of the evidence will be highly technical, and despite the best efforts of the attorneys on both sides to make the technical details comprehensible to a jury, the outcome may come down to simply whether the jury believes with its own eyes that Samsung copied the appearance of the iPhone and iPad.

Peter Toren is an intellectual property litigator and computer crimes expert with Weisbrod Matteis & Copley in Washington, DC.

[Image credits: Apple, Samsung]

Filed under: mobile, VentureBeat

In an effort to prove a willful infringement on its design patents, Apple on Friday presented internal Samsung documents in court containing side-by-side comparisons of the iPhone and what would eventually become the Galaxy S smartphone.

Apple was denied its request for a summary judgement in its infringement case against Samsung today, after the Korean company released rejected evidence, which Apple says could sway the jury.

U.S. Judge Lucy Koh called the release a “real and possible danger,” as the jury had already been chosen and that discarded evidence could make them biased.

“I will not let any theatrics or any sideshows distract us from what we are here to do,” said Koh during the trial.

She then questioned the nine jurors individually to see if they were still able to make a judgement fairly. All but one of the jurors denied having seen any articles on the event. The one who did, “Juror number 7,” said he had only read headlines and could still fairly decide the outcome based only on evidence included in the courtroom.

Yesterday, Samsung decided to release that rejected evidence to press with a statement saying that “the excluded evidence would have established beyond doubt that Samsung did not copy the iPhone design. Fundamental fairness requires that the jury decide the case based on all the evidence.”

The evidence included a number of documents that tried to prove Apple’s iPhone was inspired by Sony phone designs.

After the release, Apple asked Judge Koh to deliver a summary judgement. It released this statement, asking for more than just a rap over the knuckles for Samsung:

“The proper remedy for Samsung’s misconduct is judgment that Apple’s asserted phone design patents are valid and infringed. Through its extraordinary actions yesterday, Samsung sought to sway the jury on the design patent issues, and the proper remedy is to enter judgment against Samsung on those same patents. It would be, to be sure, a significant sanction. But serious misconduct can only be cured through a serious sanction — and here, Samsung’s continuing and escalating misconduct merits a severe penalty that will establish that Samsung is not above the law.”

Angry Apple image via Shutterstock

Filed under: VentureBeat

In an Apple v. Samsung court filing on Thursday, Apple requested sanctions against Samsung over a recent leak of excluded evidence amount to a favorable ruling of the Cupertino company’s claim that the Galaxy maker infringes Apple’s phone design patents.

U.S. District Court for the Northern District of California Judge Lucy Koh issued an order on Thursday denying Samsung’s motion to use devices seen in the films “2001: A Space Odyssey” and “Tomorrow People” to invalidate Apple’s design patents.