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Brief Initial Thoughts on Apple v. Samsung

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) 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.  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.

16 thoughts on “Brief Initial Thoughts on Apple v. Samsung”

  1. Mike,

    Thanks! A few thoughts:

    Re 2-4) I don’t know about you, but I’ve always thought of design patents as a sort of sleeper subject — a weird intersection in IP law between (c), TM, in patent (tho officially in patent) — I wonder if this is going to focus more scholarly attention on them?

    Re 6) Yeah, I don’t get the sell GOOG idea either. Maybe I’m missing something

    Re 5 & Re Meta: I’m sort of amazed at the media explosion over this — it’s almost like a Grokster or a Bilski moment, but to play devil’s advocate, isn’t it really just a jury convened in a district court that spit out a very big number? Where’s the new law on dilution? This is a big deal for the smartphone marketplace, but is it a big thing for the law? I’m just trying to understand what the takeaway will be — what do we know now that we didn’t know yesterday, other than the change in Apple’s stock price?

  2. Agreed on all points. The dilution finding is not surprising. Indeed, none of it is surprising. The real action on all of this is on appeal:

    1. Whether the court ruled any key evidence could not be admitted
    2. Whether the fed cir finds any patent invalid notwithstanding the jury (there’s no real debate about infringement, as far as I can tell)

    But even these are really factual. The design patent stuff is the real legal bleeding edge.

  3. Borland vs Lotus wasn’t about design patents. It was about copyright. I look forward to buying a triangular Samsung phone.

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  4. Google has already worked around rubber-band effect. In the latest Gmail on an ICS device, instead of the rubber-band effect, the part of the screen at the top or bottom has the background near the top or bottom respectively turn from white to blue. Much better effect anyway, if you ask me. Facebook still uses rubber-band, but that’s the app’s problem, not Google’s.

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  5. Good insights, to which I would add
    (7) Trial clock management is essential. Apple was putting on witnesses at the end of the trial that Samsung had zero time to cross. While so-called jury consultants say that jurors make up their minds early, I disagree. Speaking last speaks the loudest, and Apple’s unchallenged witnesses spoke last.
    (8) Samsung erred by presenting weak counterclaims. They should have focused on having two trials — first try to defeat Apple’s patents head-on. Second, if that fails, have your crappy patents in reserve. That way, your defense is focused and targeted, and even if you lose the first trial, you still have bargaining power due to the second suit where you (Samsung) are wearing the “white hat.” Instead, Samsung diluted the trial, demonstrated weakness through the assertion of its counterclaims, and had a scattershot presentation that the jury didn’t understand.

    9) Bad theme. Samsung said that Apple was trying to stifle competition, but that theme of “patentee is trying to obtain in the courtroom what it can’t obtain in the market” doesn’t work when the patentee is a complete market success. What they might have said instead is that Apple is so arrogant that they delude themselves with “magical thinking,” such that they think their poopy diapers are Jackson Pollocks. They claim to have “invented” rectangles, when really everyone was doing it already (Prada). They are so self-absorbed that they don’t realize that others have good ideas too. That theme could be used throughout cross-exam without having to directly confront the witnesses. Not Quinn’s style, though.

    Yes, it is easy to second-guess, but that’s what learning lessons from the mistakes of others is all about.

  6. I can’t speak to the legal points, but…

    6: Google may not be on the hook for any part of this judgement, but Apple’s strategy is to scare hardware makers from using Android for fear of an Apple lawsuit. Apple (wisely, I think) is trying to drive away Google’s hardware customers instead of attacking them directly. With a billion dollar tab hung on Samsung in just one case, HTC and the rest would have to be insane to not at least re-evaluate their position.

    But, I don’t know if that even hurts Google financially. If all Android users switched to the iPhone tomorrow, most of them would still use Google for search and that’s where Google makes all of its money.

    Apple needs to weaken Android for one very big reason: If carriers have a lot of Android options that are at least competitive with the iPhone and are popular with customers, that greatly weakens Apple’s leverage on pricing. Remember that the iPhone is to Apple’s profits what search is to Google, and Apple’s profits depend on maintaining the average $650 wholesale cost per phone sold to carriers. Only the top-tier Android handsets cost that much at launch and their prices fall sharply a few months later. That doesn’t happen with the iPhone.

    The carriers would love nothing more than to force Apple into a pricing structure like they have with Android makers, but that can only happen if Android is strong enough to use as leverage against Apple. It won’t be apparent immediately, but the big stock loser is going to be T, VZ and S.

    But I think you hit on a huge point about Apple defending this, frankly, old OS and GUI. Apple really has painted itself into a corner by identifying so strongly with the iOS GUI and being so conceited about its perfection that they are going to make it incredibly hard for themselves to move on to the next great thing.

  7. Brian: Agreed, but I hardly think Android hardware makers will be scared off. This stuff is starting to (has been?) outpace Apple sales – by a wide marging. Samsung will take a billion dollar judgment any day of the week, because the free OS from Google is allowing it to make good margin and gobs of dollars.

    Sarah – I agree with Gorham. Assuming validity (a big, big, if) , you obviously shouldn’t be able to avoid liability with slight changes. But any rule that allows the Epic 4g to infringe rather than be found non-infringing as a matter of law is broken. There is not much more to be said on that. The designs are nothing alike, unless you extend the iPhone design to all vaguely rectangular devices with curves somewhere near the corners, regardless of any other features of the device.

  8. It seems rather unlikely to me that it’s possible for courts to resist expanding the scope of design patents as they get more common. If the idea is to have a set of rights and rely on narrow scope to prevent them from doing harm, I think modern IP history tells us that design is destined to fail.

  9. Mark –

    I agree with you on the history. That said, I think courts might distrust design patents a little more than others. Further, courts have dialed back copyright protection of user interfaces and trade dress protection of design (in word if not in deed), so I’m hopeful.

  10. @John H

    Please correct me if I’m wrong, but the reporting I’ve read says that the jury found against all devices with respect to Apple’s scrolling patent – including the Nexus S 4G, which is stock Android using Google’s scrolling alternative, not TouchWiz.

    I don’t see a coherent way to reach that conclusion other than by assuming Apple’s patent includes all visual overscrolling effects, not just the “rubber band” effect (and surely that must be far too broad?), but AFAIK that’s exactly what the jury found.

  11. I haven’t studied that issue. I would not off the cuff that:
    1. Some devices were found to induce but not infringe directly
    2. I haven’t read the claim closely
    3. I wouldn’t count on the jury having read the claim closely – it’s unclear that they even looked at whatever claim construction orders there were in the jury instructions

  12. Your initial thoughts are incorrect. The Epic 4G does NOT infringe the D’667, or “front face,” patent. The Epic 4G Touch does.

  13. Just want to point out that your Epic 4G only infringed the D’305 patent for the iOS icon grid. It was not accused of the two other iPhone design patents on the physical form, because as you point out ” [it] 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.”

  14. Well, that’s why I called them initial – in rereading the verdict form, I see that. I don’t know how I missed that – I thought it was on both. I’m going to correct this post!

  15. Reading your article, the comments, and then re-reading the article, it looks as if you’re still saying the Epic 4G did not infringe any design patents. It did. D’305. I regret clicking your link.

    1. Dan –

      I think you may have misunderstood my point. The D’305 is the user interface patent (dock with 4 icons). You are right that the Epic 4G infringed that. I think that’s problematic for a lot of reasons, but it is not the point of the discussion above and the comments. That discussion was about the iPhone face design (rectangle with rounded corners). The Epic 4G was not at issue for that, but the Epic 4G Touch was.

      Indeed, when I made the mistake originally, it was precisely because I saw the Epic 4G on the list of infringing devices,and I hadn’t (yet) closely examined which device was found infringing for what. Hope that clears things up.

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