You copy, I copy, we all copy

Apple, Inc. (AAPL) is looking to ban all sales of Samsung Electronics Comp., Ltd.'s (KSC:005930) smartphones on the grounds that they "copy" the look of its iPhone.  But new documents filed in court by Samsung rock that claim, alleging that Apple itself copied relatively blatantly from Sony Corp. (TYO:6758)

The design of the iPhone is protected by U.S. Design Patent No. D618,677 and D593,087.  Apple is suing Samsung, claiming that it design "copies" the patented iPhone design.

But the Samsung filings indicate that those claims are invalid.

First, they reference their own company's prior art.

To damage the "minimalist" claim it shows off multiple minimalist designs sold well before Apple filed for design protections in July 2007, and before the iPhone was announced.

Samsung 2006

Samsung also points to its F700 music player, which released in Feb. 2007.

Ironically, Apple tried to use this player as evidence, given that it showed off the iPhone in January 2007.  But Apple was forced to embarassingly retract that claim after its lawyers learned that it had been shown at Cebit 2006 (Mar. 2006).

F700 wide
[Image Source: The Hive Mind]

But the more interesting claims relate to Sony.

Back in 2005 Apple was reeling with disappointment at failing to create a hit phone.  Apple's first attempt -- to hire Motorola Mobility Inc. to design an "iTunes Phone" had flopped when the Rokr E1 "iTunes phone" got panned.  Check out this 2005-era CNET picture:
Rokr E1
Motorola Rokr E1 "iTunes Phone" [Image Source CNET]

The editor remarks, "The Motorola Rokr E1 has an uninspiring design."

Apple CEO Steve Jobs demanded better.  Around the same time Apple began poaching Sony's engineers.  Sony at the time was working on some intriguing designs, such as the P900, a design made by Sony's joint venture with Sweden's Ericsson SpA (STO:ERIC B):

Sony P900
Sony Ericsson P900 [Image Source: CNET]

That handset launched in April 2004.

By 2005, when Apple began to poach Sony's employees, Sony was reportedly working on far more advanced designs in the prototype.  Steve Jobs keenly took note.

Steve Jobs at Sony party
Steve Jobs at a Sony event [Image Source: Unknown]

Here's where the story gets a little strange.  In documents obtained by Samsung a CAD drawing of a smartphone that looks remarkably like the iPhone 4 (and a bit like the earlier iPhones) pops up on Apple's servers clearly branded "Sony".

Samsung believes the design was not directly stolen from Sony.  Rather, "in February 2006, before the claimed iPhone design was conceived, Apple executive Tony Fadell circulated a news article to Steve Jobs, Jonathan Ive and others. In the article, a Sony designer discussed Sony designs for portable electronic devices that lacked buttons and other 'excessive ornamentation,' fit in the hand, were ‘square with a screen’ and had 'corners [which] have been rounded out.'"

According to Samsung, Apple then assigned Shin Nishibori -- a Japanese industrial designer who worked for Apple since 2002 -- to mock up what that text description might look like.

This was the result:
Sony Phone
[Image Source: The Verge]

The fact that Mr. Nishibori included the Sony label seems to be pretty damning, and even Apple seemingly realized that, changing the logo to "Jony" in later images, a play on its lead designer -- Jony Ive's name.
Jony Phone
[Image Source: The Verge]

But Samsung argues the message is clear -- Apple copied from Sony.

Apple had a little bit of a history of "borrowing" competitors' ideas.  CEO Steve Jobs lifted the idea for his successful Mac operating system from Xerox Corp. (XRX)  He once bragged, "Picasso had a saying - 'Good artists copy, great artists steal.' And we have always been shameless about stealing great ideas."  

Samsung's lawyers write [PDF], "Apple seeks to exclude Samsung from the market, based on its complaints that Samsung has used the very same public domain design concepts that Apple borrowed from other competitors, including Sony, to develop the iPhone."

"Contrary to the image it has cultivated in the popular press, Apple has admitted in internal documents that its strength is not in developing new technologies first, but in successfully commercializing them."

Looks like while Apple's filings were relatively damaging from a standpoint of technical infringement claims, Samsung has a pretty effective defense formulated with respect to design claims.

That defense might leave Sony with a question or two for Apple.

Sources: Samsung, The Verge

"When an individual makes a copy of a song for himself, I suppose we can say he stole a song." -- Sony BMG attorney Jennifer Pariser

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