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“What can be asserted without evidence can be dismissed without evidence.”

–

Christopher Hitchens

The last week has been a bit of a blur – and I was just not able to finish off the five must-read posts last week … so I’m jamming two weeks together now. Slightly early … and maybe you’ll find this an antidote for insomnia on Sunday evening – or an inspiring way to start your Monday. Either way – I trust you will enjoy these five great reads.

1. Trevor Young hits it out of the ballpark with his great post I’ve Seen Marketing’s Future and its Name is Amanda Palmer. Superb thinking and connecting of the dots
2. Kate Carruthers looks at the big shifts between the 19th, 20th and 21st centuries – focusing on the digital economy and the digital revolution
3. Any marketing practitioner will know – often through bitter experience – that our jobs are infinitely harder than they used to be. But Bill Lee says the evidence is clear – Marketing is Dead
4. The climate change deniers can deny all they like. But Bill McKibben says you just need to follow the figures to realise just who the real enemy is – Global Warming’s Terrifying New Math
5. I’ve been saying it for years – share the message but OWN the destination. But Ray Wang pulls no punches –> Brands are dumb if they drive traffic to Facebook. Read it and weep suckers!

Apple has entered the results a consumer study into evidence which indicates that up to 37 percent of users surveyed confused Samsung’s mobile designs with Apple’s iconic products.

Apple was able to get a Samsung internal document admitted in full in its case against the South Korean company on Tuesday, with the report offering a potentially crucial comprehensive side-by-side comparison of the Galaxy S and the iPhone.

Samsung objected to a photo of the Epic Touch 4G Apple presented as evidence of design infringement this morning, claiming the image was altered to look more like the iPhone. But Judge Koh overruled the objection, stating that Samsung’s claim lacked credibility.

Apple and Samsung are locked in a courtroom battle over patents, look and feel, and massive corporate egos.

But it’s hard for legal newbies to know who’s winning.

So I asked Kevin Taylor, a partner at Schnader Harrison to give us the play-by-play. He has over 19 years’ corporate counsel and trial experience for companies such as GE Capital, Societe General, and Citibank.

Venturebeat: Score the trial for us … who’s winning?

Taylor: I might give a slight edge to Apple. It’s too early to tell, though. Samsung’s attempt to argue that Apple was inspired by a Sony design could kill Apple’s case.

But Samsung’s evidence to support that argument has been excluded for now. So Apple has a slight edge at this time, unless there’s a way to get that evidence in.

VentureBeat: Was Apple’s request for summary judgement after Samsung released rejected evidence to the media a knockout punch from Apple, or just a scoring blow?

Taylor: Not a knockout punch.

Apple’s lawyers scored a point — a scoring blow, if you will — in asking the trial judge to sanction Samsung’s lawyers for making public evidence excluded in this case.

VentureBeat: How does angering the judge by involving the media affect her judgement?

Taylor: Judges do their best to be impartial. But if Samsung’s lawyers are doing something that she told them not to do, Judge Koh will be justified in coming down hard on them.

VentureBeat: Is Samsung just looking for a mistrial?

Taylor: I doubt Samsung’s gone this far to get a mistrial. They want to win.

But it would be good for them to get a mistrial. It would force Apple to start arguing this case in court all over again.

VentureBeat: Whoever wins, how likely is an appeal?

Taylor: An appeal is likely.

Both companies have deep pockets and feel strongly about their cases. So this case will be around for a while, probably through an appeal.

VentureBeat: How patentable is look & feel?

Taylor: Look and feel has some patentability. It’s possible to get a look and feel patent.

But a big issue is, can consumers differentiate your product’s look and feel from a competitors? Look and feel can be fuzzy. It’s hard to tell whether a company has copied a competitor’s product’s look and feel or if both products just look similar.

VentureBeat: Do you agree with the judge’s decision to disallow the Sony evidence?

Taylor: That is evidence that relates to the validity of the Apple patents, not whether Samsung copied Apple’s design. The latter is the central issue of this case, so in that respect, I agree with her.

The evidence has to relate to the case at hand.

Image credit: Losevsky Photo and Video / Shutterstock.com

Filed under: enterprise, mobile, VentureBeat

After Apple filed and won the right to advise the jury that Samsung failed to comply with instructions to retain relevant email evidence, Samsung has filed its own motion demanding that the jury also be told that Apple may have failed to preserve relevant emails.

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

U.S. District Court Judge Lucy Koh on Friday ruled against Apple’s request to sanction Samsung for sending previously-excluded evidence to the media and warned further “theatrics or sideshows” would not be tolerated.

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