Apple vs. Samsung: What Doesn’t Compute

by Patrick Moorhead   |   August 27th, 2012

I’m not a lawyer, but I am an analyst who unfortunately has participated in some of the largest corporate legal battles, has two immediate family members who are IP lawyers, and has had to decide on industrial design for consumer electronics. None of this qualifies me to give legal advice, but I am able to spot some very interesting things in technology lawsuits.  The Apple-Samsung lawsuit was no different, as it was full of opportunity and oddities, and I wanted to share just a few observations.

The first thing I want to be clear on is that it is apparent to me that based upon the evidence and common sense, I believe Samsung infringed on at least few of Apple’s patents.  Just looking at the Samsung phones before and after and hearing about the need to be like Apple was enough for anyone would to arrive at that conclusion that some phones were made to look like Apple’s.  What I am not saying here is that I agree with everything that the jury came back with either; I don’t.  I am not a lawyer and I did not see every shred of evidence that the jurors saw.

With that off my chest, let’s dive into some of these things that I found unique or odd about the trial.

I’ve Seen That “Aligned Grid” Before

Two of the patents under scrutiny dealt with the way iOS icons are set in a grid with a lower bar situated at the bottom for apps.  Specifically, these were patents USD604,305 and US 3,470,983.  It was funny, the first thing I thought of was my Windows desktop where I have icons aligned in a gird with my most used icons pinned to my taskbar.  I remember old versions of Windows where it would “Align to Grid”, too.  So really, what is so unique or special about this patent?  Is it the fact that I am using it on a PC and the patent is on a phone?  I find this one odd.

IMG_5926

iPhone Icons Aligned to Grid With Dock

image

Windows Icons Aligned to Grid With Dock

I’ve Seen That “Pinch and Zoom” Before

I remember getting an early preview of Microsoft’s original Surface table, now called PixelSense.  It could recognize over 50 simultaneous touch points as it was designed for more than one person and entire hands.  One of Surface’s special features was to pinch and zoom in on photographs…. almost exactly like the iPhone.  Apple’s two finger pinch and zoom is covered under US 7,844,915. I am certain that Microsoft and Apple are dealing with this in one way or another behind closed doors, and I speculate that based upon Microsoft Research budget and amount of years they had been working on Surface, they have the upper hand.  Remember, Apple was not the juggernaut it is today with more cash and market cap than anyone, therefore putting Microsoft in a better position to patent pinch and zoom.

surface picture

Microsoft Surface (2007)

I’ve Seen Those Curves Before

One of the other key patents Apple was fighting in court was related to the rounded corners. Apple had two design patents related to the corners.  The two patents, USD504,889 and USD593,087 were both patents related to many physical elements combined, including rounded corners.  Those curves are specifically 90 degree curves related to the same curvature in Apple’s legacy icons which date back over 20 years.  I ask, does it make sense that someone can patent a curve?  It does to the USPO, but in other designs like cars, you see related curves all the time, yes?  I mean, really, do curves seem like something that is patentable?  On the top is the Compaq T1100 sold in 2003 and on the bottom is Apple’s patent filed in 2004.

Compaq TC1100 (2003)

apple 504889

Apple USD504,889 (2004)

apple 504

Apple USD504,889 (2004)

 

Would You Confuse an Apple and Samsung Phone?

One very prominent scene inside the courtroom was when Apple icon designer Susan Kare testified even she confused the Galaxy for the iPhone.  I’ll give Mrs. Kare the benefit of the doubt, as maybe she was just looking at the icons, but I doubt anyone else on earth would confuse the two phones.  Every Galaxy S has a “SAMSUNG” and “AT&T” logo on the front of the phone and you certainly wouldn’t make the mistake of buying the wrong phone as the carton is clearly labeled Samsung.  So if consumers wouldn’t confuse the two and wouldn’t mistakenly buy the wrong phone, how damaging is the similarity, really?  Have you ever heard even a rumor of someone mistakenly buying a Samsung phone and thought it was an iPhone?  If you have, please let me know in the comments below.

 

s2 packaging    samsung s2

 

iphone 3gs packaging iphone 3gs

 

So What?

So I have brought up some possible inconsistencies or “horse sense” that may go against what the jury said and potentially even against patent law, so what?  I think if we cannot look at ourselves in the mirror, be honest with each other on what violates a patent or if there even is a patent to violate, the U.S. patent system itself will lose credibility and is doomed.  If reasonable intelligent people can’t even make sense of it, then what does that say about the problems we will face in a few years as companies become even more litigious as they file patent after patent just so they don’t get burned down the road?  I hope more good than harm comes out of this patent spat.  The big picture is really about continued innovation.  We should all pay heed to what Ben said so well yesterday“The key to the future will be to seek out new opportunities with fresh thinking and innovative ideas. To those that think innovation is dead I pose this question: Have all the problems of the present and the future been solved? Until the answer is yes, there will always be room for innovation.” Let’s not let the patent system stifle that innovation and let’s use some common sense as we approach it.

Patrick Moorhead

Patrick Moorhead was ranked the #1 technology industry analyst by Apollo Research for the U.S. and EMEA in May, 2013.. He is President and Principal Analyst of Moor Insights & Strategy, a high tech analyst firm focused on the ecosystem intersections of the phone, tablet, PC, TV, datacenter and cloud. Moorhead departed AMD in 2011 where he served as Corporate Vice President and Corporate Fellow in the strategy group. There, he developed long-term strategies for mobile computing devices and personal computers. In his 11 years at AMD he also led product management, business planning, product marketing, regional marketing, channel marketing, and corporate marketing. Moorhead worked at Compaq Computer Corp. during their run to the #1 market share leader position in personal computers. Moorhead also served as an executive at AltaVista E-commerce during their peak and pioneered cost per click e-commerce models.
  • FalKirk

    My comment is not directed towards the author of this article but is squarely aimed at all of us, and most especially at me.

    Why is it that we feel so very free to question the judgment of the jurors but we have no doubts whatsoever about our own ability to make these kind of judgments? Where we there? Did we see and hear what they saw and heard? Does our lack of knowledge somehow convert our uninformed opinions into gospel truth?

    How about we try this. Let’s give the jurors the benefit of the doubt. And let’s doubt the benefit of our opinions. That would make for a nice change of pace, don’t ‘cha think?

    • http://twitter.com/PatrickMoorhead Patrick Moorhead

      One of the things that made this country great is the freedom to dissent. The time that we start questioning that is a dangerous one, I think. If you want to dissent on my dissent, please, do, but please read the full blog first.

      • steve_wildstrom

        One thing that it is important to remember is that in patent cases, more so than other litigation, the trial court verdict is only the beginning of a long legal journey. I remember one case that lasted for 15 years, including two trips to the U.S. Supreme Court and I think four to the Court of Appeals for the Federal Circuit (formerly the Court of Customs & Patent Appeals.) Odd thing was that along the way, all the patent claims were dropped or dismissed and the case ended up being resolved on contract law.

      • FalKirk

        I did read the full article, Patrick. And as I tried to say, my post was not directed at you or your article. Rather, my thoughts were inspired by your article.

        I wasn’t trying to say that we shouldn’t dissent. Or speculate. Or analyze. That’s what we do. I was trying to say that before we do those things, we (and I especially include myself) should take a step back and question our own certainty before we judge others.

        I’m sorry that my words failed to communicate my intended meaning. Communication is hard. I’ll try to do better next time. :)

    • leoingle

      This is hilarious. I would put money on it that if the jury would of been in favor Samsung, then you would be questioning them just as much as the next Apple fanboy.

      • benbajarin

        Perhaps you are new to our site so please read our posting guidelines as I have already had to delete some of your comments due to their lack of an intelligent response.

        Also I strongly encourage you to examine your use of the word fanboy. I feel it is an extremely disrespectful term and one that is loaded with prejudice.

        We appreciate our comments and the quality of intelligent comments we get on the site. IF you have disagreement, which we encourage, please lay out the reasons you disagree in smart ways and try to add to the conversation rather than detract from it.

        • leoingle

          Perhaps I am new, perhaps I am not. Cute reply though, but all I see is you saying in it is that I am absolutely right and you cant figure out any bs lie to say I am wrong. And if you find the term fanboy disrespectful, then it is because you know you are one and have no way to argue that you aren’t. But you just keep modding post that you don’t agree with, I mean that aren’t of intelligent response. I know your type. You were picked on in school and never got picked to be on teams when you were young. And now you feel you have a sense of power with your mod rights and you feel empowered. I am happy for you. Good luck on your fanboy website that nobody would know about unless for Google news. Yes, Google News, not Apple News.

        • W. van Dam

          Thank you for upholding standards!

    • Matang_Lawin

      John utilizing your vast experience as an attorney what are the odds of Samsung winning on appeal regarding this up to the Supreme Court level.

  • jfutral

    I think this is one of the reasons Apple in particular has such a hard time reducing their claims. The integrity of their design is dependent on the whole being greater than the sum of its parts. You might as well be saying you’ve seen those brush strokes in an artist’s painting somewhere else before, or that colour yellow.

    I’ll say it again, if what Apple created was not innovative, then we are _still_ waiting for innovation.

    Joe

    • benbajarin

      Good points Joe. One thing I have noticed from much of the public forums is that there seems to be a fundamental misunderstanding of what it means to innovate. I think more often than not people may confuse invention with innovation. I may flesh this out more in a column later but its been on my mind.

  • Grwisher

    If any of you had watched Bloomberg West yesterday and heard the lengthy interview with Velvin Hogan, the 67-year-old foreman of the jury in the U.S. trial between the Apple and Samsung, this type of article would probably have had a much different view. I think, after seeing this interview and reading many other accounts, that we were fortunate to have the jury that was selected for such a monumental trial. I am 100% in agreement with FalKirk on this one.
    Here is a link to part of that interview: http://news.cnet.com/8301-13579_3-57501314-37/apple-samsung-jury-foreman-recalls-aha-moment/

    BTW – Nobody on the jury owned an iPhone. Hogan did not own any apple products and his wife used a Samsung feature phone.

    Regarding the Multi-touch Argument: Apple bought Finger Works (founded in 1998), the company that had the patents on gesturing. Apple bought them in 2005. This was announced at the original iPhone unveiling in 2007. Reading this Wikipedia article may provide some additional information regarding multi-touch patent and its validity: http://en.wikipedia.org/wiki/FingerWorks The Microsoft PixelSense, formerly call the Surface and renamed after their tablet was announced, was announced in May, 2007 (after the iPhone announcement) and shipped in 2008. The idea for the product was initially conceptualized in 2001 by Steven Bathiche of Microsoft Hardware and Andy Wilson of Microsoft Research. Therefore it appears that Apple is on solid ground on this one. See: http://en.wikipedia.org/wiki/Microsoft_PixelSense

    Regarding the Curve Argument: The rectangle with the rounded corners patent (D593,087) was actually the one and only patent thrown out by the jury. See page 9 of the actual verdict: http://www.scribd.com/doc/103860673/12-08-24-Apple-Samsung-Amended-Jury-Verdict
    Why this keeps getting headlines, as a reason that the patent system is broken, is beyond me. What adds insult to injury, is that Samsung’s press release after the verdict contains this: “It is unfortunate that patent law can be manipulated to give one company a monopoly over rectangles with rounded corners”. Why the press has not, to my understanding, called Samsung on the carpet for this out and out lie, is also beyond me. See: http://sfist.com/2012/08/25/apples_1_billion_triumph_jury_rules.php
    So, it looks like this one does compute indeed.

    Regarding the Icons argument: I believe we would have to know more about “Trade Dress” and “Design” patents in order to evaluate the validity of this patent. The use of icons has been a very complex one and has been in question for decades. This goes back to the early development of the Windows type interface. As a matter of fact Microsoft, Apple and Xerox were sued over the use of icons by the Catholic church on the grounds that the church had been using icons for centuries. Sorry, I could not readily find a source for this. So you may indeed be right about this one, but it is very hard to tell. I think I would have to lean towards FalKirk’s view on this one as none of us were there.

    • http://twitter.com/PatrickMoorhead Patrick Moorhead

      Very thoughtful response. Thank you.

      • Grwisher

        Thanks. I felt I that I had gotten a little carried away on the 2nd issue so I really appreciate your feedback.

        I went back and listened to the foreman’s interview again and am firmly convinced that anyone with an interest this jury’s deliberation’s should view it. It is comprehensive (almost 17 minutes long), but it will be much closer to what FalKirk wishes we could do – be there in the jury room:

        http://news.cnet.com/8301-13579_3-57501314-37/apple-samsung-jury-foreman-recalls-aha-moment/

    • FalKirk

      This is one very nicely put together post, Grwisher. Well done.

      • Grwisher

        Your comment has become the highlight of my day. It could not have come at a better time as the sun has been over the yard arm for a couple of hours (google it if you are confused).

        Respecting your opinion and the opinion of the author, Patrick, but being basically an honest person, I will reluctantly have to confess that I lied about the Catholic church suing Microsoft, Apple and Xerox. I just didn’t have any material to refute Patrick’s claim so I used poetic license to cast doubt on his claim. I just wish I could promise to be a better person in the future, but that would be futile. And as I said, I am basically an honest person.

    • steve_wildstrom

      Design patents are very strange beasts. I had never actually looked a t a design patent before this case, but they are very odd. They don’t really contain any claims. In general, they really seem to be much more like trademarks than patents. And for trade dress, the fundamental question also seems to be a trademark issue: the likelihood of consumer confusion.

  • mhikl

    Everyone has a right to an opinion and when voiced, all others have equal rights to question the opinion.

    Proven facts or truths should always be questioned, but then new proofs should be given to support the stated opinion. Shouldn’t facts & truths stand until challenged with proofs that support the challenge of errors?

    And shouldn’t an honest person always include proofs and truths that may go against his/er arguments.

    The argument of “the whole being greater than the sum of the parts” by jfutral is poignant.

    • FalKirk

      “The argument of “the whole being greater than the sum of the parts” by jfutral is poignant.”-mhikl

      Paraphrasing one of Apple’s many expert witnesses, it’s not the ingredients, it’s the cookie that matters. Mrs Field didn’t invent four or sugar of cookies for that matter. But the unique arrangement of those elements into a single whole is what makes a cookie a Mrs. Field cookie and a patent patentable.

  • http://www.facebook.com/Nedeljko.Kovacevic Nedeljko Kovačević

    Couldn’t Samsung’s legal team played their case like Pat has written this piece: simple, elegant and in plane English?! Legal team messed up beyond expected damages. IMHO no one should have won this. And I think judge was of that opinion also… judging by her comments to legal teams!
    I find shocking that Apple’s legal team at a closing word slammed Samsung because no VP of the company came to US on trial! That was completely pointless from the case stand point, but was TV-show impressive move on their side!
    Again, great stuff Pat, and Samsung should ask law firm refunds for failed work!

    • FalKirk

      “Couldn’t Samsung’s legal team played their case like Pat has written this piece: simple, elegant and in plane English?”

      That is a powerful strategy indeed but oh so difficult to do. Speaking as a recovering attorney, I know that we always think we can add something more to the conversation. We find it awfully difficult to shut up and sit down.

  • Trollbert

    I confused a Samsung phone with an Apple, and it was mainly because of the curves. But the Apple was greener and juicier.

  • Dai

    The issue with icons isn’t about innovation or uniqueness – the Mac had them before Windows came out, and the Newton had a similar implementation to the iPhone long back. The issue in the case is that that particular arrangement of icons is part of the design, and Samsung was found to have mimicked the design with their app screen. No other Android phone uses icons in that way, although they all use icons, so they weren’t sued. The design copying issue isn’t about whether someone would buy a samsung phone thinking it was an iPhone, it’s about dilution of the Apple brand – having something else so similar diminishes the uniqueness and specialness of the original. Someone might buy a Samsung, or some other phone, thinking that it’s just as good as an iPhone because it seems so similar. If you doubt the depths Samsung went to to mimic Apple in every way it could, check the design of power adapter they adopted for their phones after Apple changed the adapter for the iPhone 4:
    http://www.firstain.com/index.php/2011/09/24/this-is-blatant-copying-samsung/

    Really, if Apple weren’t allowed to defend their products’ identity from noted “fast followers” like Samsung, why would they bother innovate? And for all those who claim Apple doesn’t innovate, and that the iPhone does things in obvious ways, that’s not what people were saying when the iPhone came out, and if such things were obvious why weren’t they done before? I read one post somewhere from someone complaining about Apple being allowed to patent “the obvious way to do things”, who posed the thought experiment, “what would have happened if car tyres were patented?” The irony of course is that they were, and that patent was defended and upheld until they ran their term.