Mike sent out the call for some commentary on this case, and I thought I would oblige. I don’t have time for a detailed post; I’m too busy getting ready for the first day of school on Monday. Of course, I seem to have enough time to do interviews, so might as well post some thoughts here.
So, here are my top 6 takeaways:
1. The jury hated Samsung. Perhaps this is in line with Mike’s argument about the magic. Mark Lemley said on NPR earlier that the jury was careful. I think he is right — to a point. Yes, the jury did not find liability on absolutely everything. But I am certain that if it was a close call, Samsung lost.
2. This leads to my second point. How did the Galaxy Tab escape design patent infringement? This was the only device to be preliminarily enjoined (on appeal no less), and yet it was the one of the few devices to be spared the sledgehammer. And, by the way, it looks an awful lot like an iPad. (Edit: Be sure to see this Guest Post, which provides a decent explanation for why, though I’m not fully convinced)Â Yet the Epic 4G, a phone I own (uh oh, Apple’s coming after me) — which has a slide out keyboard, a curved top and bottom, 4 buttons on the bottom, the word Samsung printed across the top, buttons in different places (and I know this because I look in all the wrong places on my wife’s iTouch), a differently shaped speaker, a differently placed camera, etc. — that device infringes the iPhone design patents. (Turns out I was wrong on this, and that is a good thing. The Epic 4G didn’t even make the jury form. The 4G Touch did, and that is a lot closer to the iPhone Face design patent. I still think it is too broad, but it’s not as bad as I thought).
3. More generally, then, this case is going to require courts to rethink (which assumes they ever thought about it in the first place) what it means to have equivalents in design patents. Apple’s argument was this: “sure, there are lots of little differences between the iPhone design and the Epic 4G Touch, but if you get the general impression that they are similar, that’s good enough to infringe.” And the jury agreed (and I presume the jury instructions allowed it). At a time when most view the doctrine of equivalents as dead with respect to utility patents, this expansion of equivalents in design patents to allow a very specific design to cover essentially all phones with a rectangle shape and full screen face is problematic.
4. Relatedly, the ability to get a design patent on a user interface implies that design patent law is broken. This, to me, is the Supreme Court issue in this case. We can dicker about the “facts” of point 2, but whether you can stop all people from having square icons in rows of 4 with a dock is something that I thought we settled in Lotus v. Borland 15 years ago. I commend Apple for finding a way around basic UI law, but this type of ruling cannot stand.
5. The ability to find a product design (as opposed to packaging) dilutive shows that dilution law is messed up. I’ll leave it to my trademark colleagues to explain why. That said, the jury did get it right as to confusion and secondary meaning on the iPad.
6. Â Most accounts I’ve read have said that this is a very, very bad ruling for Google (and the stock market seemed to buy it). Call me contrarian, but I’m going long on GOOG. This ruling has very little effect on Android. The interface design depends on 4 icons, and that can be designed around. Other manufacturers put three icons in the dock already, for example. Pinch and zoom is nice, but I would hardly call it core technology. I also think that is one of the more vulnerable claims on appeal, having seen the prior art. Rubber band to update is mostly unnecessary on devices that use more than one button (umm difference in design, anyone?) and tap to zoom is nice but I would guess most could live without it, especially if pinch to zoom is invalidated.
On the other hand, there aren’t that many ways to make a screen fronted device. Maybe they can do a “Flying-V” like the electric guitar or an hourglass shape. OR – and here I’m being the optimist – maybe they’ll come up with a better design that everyone wants. The Galaxy S III is pretty thin with a ridiculously large screen, for example. Ironically, to keep its lame trade dress argument alive, Apple has to stick with a thickness and screen size that customers may not want anymore. It’s possible that in the long run, Apple is going to take a beating for refusing to give the customers what they actually want. Magic only takes you so far.
Finally, unless Samsung goes after Google (unlikely?), Samsung is the one writing the check here. Maybe there is an indemnification deal we don’t know about. In any event, this ruling hurts Samsung a lot more than it hurts Google in my book.
I’ll end by giving another shout out to the fine folks at Groklaw, who must never sleep, and have not only really detailed information, but really accurate information, and actual source documents. That combination is hard to find.