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A Netherlands judged ruled that Samsung's smart phones (right) violate Apple's design patents (left) and technology patents on touch-screen interactions.

Samsung has submitted video from 2001: A Space Odyssey to try to prove prior art against the iPad design patent.  (Source: Warner Bros.)

iPad-like tablets also frequent popped up in 1980s and 1990s Star Trek episodes and movies.  (Source: CBS)
Meanwhile Samsung offers "Sci-Fi 2001: A Space Odyssey"-based defense in U.S. court

Samsung Electronics Comp., Ltd.'s (SEO:005930), one of the world's top two cell phone makers and tablet makers is literally fighting for its life in court [1][2], under legal attack from Apple, Inc. (AAPL).

I. Did Apple "Steal" its Ideas From Science Fiction?

Apple accuses Samsung of "slavishly" copying its smartphone designs.  Specifically it cites its U.S. Design Patents D618,677 and D593,087 on iPhone's design and Design Patent D504,889on the iPad's design.  Apple's patents basically claim ownership of rectangular touch-screen devices with a minimalist interface with few physical buttons.  Its patent specifically says that it is "not limited to the scale shown herein" -- which Apple says places larger devices like the Samsung Galaxy S smart phone on the hot seat.  Apple filed the iPhone patents in November 2008 and July 2007, and the iPad patent in March 2004.

Apple has expressed no desire to license the patents in question.  It has indicated that it would rather remove these "willful copies" from the market.

Samsung has pulled out a rather unique defense in the case, citing a scene in the 1968 Stanley Kubrick adaptation of the Arthur C. Clarke novel 2001: A Space Odyssey which shows a device remarkably reminiscent to the iPad making what appears to be a video call.

In one its U.S. court cases with Apple, Samsung is submitting the evidence as proof of prior art -- a common way to invalidate patents.  

While it may at first sound outlandish to use a work of science fiction in court, it's important to consider that in 2004, when Apple filed the iPad patent, the device was very much science fiction.  Apple had to wait five years for real world electronics to catch up.

And there's some precedent of successes with science-fiction prior art.  Robert Heinlein's 1930s-era writings were used in court in the 1960s to prevent people from patenting the waterbed.  It's also believed that fictional examples are an important reason why Klausner Technologies reportedly conceded to a lesser settlement, in its 2007 case against Apple where it sought $360M USD in damages for willful infringement.

We feel that Samsung should consider submitting several video clips [1][2][3] from Star Trek: The Next Generation as evidence as well.  Numerous minimalist, thin tablet devices appeared on the show and its movie adaptations in the late 1980s and 1990s.

In one scene from 1996's Star Trek: First Contact, character Geordi LaForge hands Zefram Cochrane a device that looks remarkably similar to the iPad, though only the back is shown.  Another scene from 1989's "The Bonding" shows the front of an LCD touch-screen iPad-like device with a relatively minimalist button configuration.

Apple chief executive and co-founder, Steven P. Jobs has bragged about his mastery of stealing ideas from others, stating [video], "Picasso had a saying - 'Good artists copy, great artists steal.' And we have always been shameless about stealing great ideas."

And he has said several times that he is a fan of Star Trek.  For example, when unveiling the iPhone 4, he commented, "I grew up here in the US with The Jetsons and Star Trek and communicators, dreaming about video calling, and it's real now!"

II. Samsung Must Deal With Technology Patents as Well

Apple's design patents are particularly troublesome given the apparent amount of prior art and the fact that it itself fictionalized a device that it would only later have the technology to commercially implement, when filing the iPad's design patent in 2004.

Also troubling about the design patents is Apple's selective enforcement.  Notably Apple has only gone after smart phones and tablets using Google Inc.'s (GOOG) Android operating system, while ignoring similar manufacturer Windows Phone 7 designs.  One possible reason for this is that Apple and Microsoft have some cross-licensing agreements and Microsoft Corp. (MSFT) owns a vast amount of user interface intellectual property, so Apple may be scared of trying to bully it in court, like it has Google.

However, even if Samsung can get by the trio of American design patents, Apple's case also references technology patent 7,469,381, which covers touch interactions and animations of page-turning elements of a graphical user interface.  

Nokia Oyj. (HEL:NOK1V) during its legal battle with Apple succeeded in getting a re-review of this patent with "the best prior art references Nokia could find".  Unusually, all 20 claims were upheld.  (Typically during re-reviews, at least some claims are invalidated.)

Again, there may be prior art here, but Samsung will have to dig to find it. 

III. Samsung Dealt Another Setback in Europe

In Europe Apple has cases pending in Netherlands and German European Union courts.  Last week Apple was caught apparently photoshopping pictures [1][2] for its court exhibits, offering visual representations that confusingly make Samsung different shaped devices appear as if they have the same dimensions as the iPad and iPhone.

Apple supporters are pointing to Apple's U.S. court filing to support their claims that Apple was in the clear.  In the filing Apple says that the "differences between the Samsung Galaxy Tab 10.1 and Apple’s patented design are trivial and legally insignificant: the aspect ratio, thickness, and edge profiles do not appear to be absolutely identical in the Tab 10.1 and Apple’s patented design."

Apple claims prior art is on its side, writing, "But as discussed above, a product infringes a design patent even if it differs in several details, so long as an ordinary observer would view the overall appearance to be substantially the same. These minor differences do not affect the substantial similarity between Samsung’s tablets and Apple’s claimed design when viewed as a whole, especially in light of the prior art."

Apparently the presiding Netherlands judge agrees.  In lieu of a final verdict to be published today, a Hague judge banned the marketing of the Galaxy family of Samsung devices and the Samsung Ace smart phone in the Netherlands.  It is unclear whether sales will be banned as well.

Samsung was found in violation of Apple's European Patent (EP) 2,058,868 2,059,868, which describes a "method of scrolling," EP 2,098,948 which deals with a "recording a flag in connection with multiple screen taps," and EP 1,964,022, a dragged slider phone unlocking GUI element.

Apple holds similar patents on this technology in the U.S., which it's using in its U.S. lawsuit.

Update:  As a Dutch-fluent reader pointed out (Thanks Entropy78!), initial sources (Engadget) were incorrect in posting the patents EP '948 and EP '022 were violated.  

The ruling actually points out that EP '022 had already been ruled null and void and thus was not suitable for the case. Further, it found that Samsung did not violate EP '948. It does ban sales and marketing of Samsung's Android 2.3 "Gingerbread" devices, as it find them solely in violation of patent EP '648.

The ruling states:

...De slotsom van het voorgaande luidt dat Samsung met de smartphones Galaxy S, S II en Ace inbreuk maakt op EP 868 maar niet met de tablet computers. Op EP 948 maakt Samsung geen inbreuk, terwijl EP 022 voorshands voor nietig is te houden. Er is geen

sprake van inbreuk door Samsung op de door Apple gestelde modelrechten of auteursrechten...


Samsung violates patent EP 868 with its Galaxy S, S2 and Ace model, but not with its Galaxy tablets. Samsung does not violate patent EP 948, while patent EP 022 was considered invalid. There was no violation by Samsung on any of Apple's design or copyright ...

The EP '648 violation comes due to the scrolling functionality in Gingerbread devices' gallery. Honeycomb devices, such as the Galaxy Tab 10.1 are not affected.

The judge goes on to write " kennelijk eenvoudig door haar uit te voeren aanpassing...", "meaning: it should be easy to technically circumvent the one patent it (Samsung) was found to violate."

The full ruling is available in Dutch here [PDF].

Samsung representatives reportedly told that they would be removing the scrolling feature from their smart phones, which should allow them to continue sales and marketing in the Netherlands.

Thus in the big picture Apple did win a minor victory in potentially temporarily halting sales of some Samsung phones, if only for anywhere from a few days to few weeks.  Further the case invalidates Apple's claim that Samsung violates Apple's patents on multi-tap recording GUI interactions -- patents which are used in multiple other Apple suits against various Android manufacturers internationally.

Thus in the big picture the ruling is somewhat of a loss to Apple.

The take home message seems to be that --in European courts, at least -- Apple may be able to pester Android manufacturers into minor updates, but its dreams of removing their devices from the market are unlikely to be realized.

Comments     Threshold

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RE: They have a point...
By Iaiken on 8/24/2011 10:52:24 AM , Rating: 3
As much as I despise Apple, this is not how it went down.

Your last point should read:

5. Apple licenses GUI technology from Xerox.

The interesting thing about this past case was that Apple's argument of "look and feel" was in respect to all of the design elements taken together. However, in the current cases, they have instead argued that "look and feel" applies to individual design elements that may be... different? Wha?

I call BS.

RE: They have a point...
By Tony Swash on 8/24/11, Rating: -1
RE: They have a point...
By The Raven on 8/24/2011 1:22:46 PM , Rating: 1
It's what Apple does - sweat the details.

That actually made me laugh out loud. Well done!*

You mean like copy/paste or how you hold the phone?

*Please don't sue for the double ironic "copy/paste" of your text ;-)

RE: They have a point...
By nolisi on 8/24/2011 1:56:55 PM , Rating: 2
it just makes it feel a little bit less intuitive.

Highly speculative- some users don't even get the idea of scrolling, the rubber banding idea may actually have a negative effect.

knocking off features taken from iOS one by one, because at the end Apple know they will have the polished UI that delights and Androids UI will plod.

The problem with this supposition is that Apple somehow has a more polished UI- something that is very hard to prove. It might have that reputation, but I would argue that it is far less intuitive and polished than Android (coming from a person who owns both an Android device + an iPad). I am continually frustrated by the limitations of the iOS UI- starting from the inability to search PDFs open from a website in Safari (a very basic function), to the cursor control function when editing text fields, even to the notification bar giving you direct access to notifications (iOS doesn't seem to have an equivalent function at all). Android has true multitasking that is intuitive while iOS purposely limits apps running in the background in spite of the iPad being a multicore device.

I find Androids interface far more functional and intuitive than Apples. You argue that Apple sweats the details- I would argue that Apple limits itself so that they only sweat the trivial details (like rounded icons) and then sue when a competitor comes out with a better experience that combines both a solid UI and truly useful functionality which improves the experience of the device as a whole.

The problem is that Apple hasn't gotten as far as real multitasking (including a smooth and well functioning task management interface, oh, and OTA updates that Android has always had) and other UI experiences that actually expand the functionality and subsequently the overall look/feel competitiveness of the device, so the basis of their litigation is on things like rounded icons and how many icons are in a row on the screen- items that don't have any real "idea" weight, and subsequent impact on functionality.

RE: They have a point...
By Tony Swash on 8/24/11, Rating: -1
RE: They have a point...
By nolisi on 8/24/2011 3:14:57 PM , Rating: 3
Apple is happy to live or die in the market place on the basis of the popularity of the devices it's make

Wow, you're embarassingly wrong here- you obviously missed the part where Apple doesn't want to license anything and is seeking injunctions and bans of sales.

A company that is happy to live or die in the market place doesn't sue, period.

- they just don't want people to copy them.

And I'm telling you, for the most part Samsung and Android didn't- and it hasn't been proven that anything was copied from Apple. No one has proven that Samsung sat down in design meetings and said "let's take this from Apple." They likely considered several designs with control groups before they settled on the design they produced.

Copying also implies exact replica- there are similarities, but so far there aren't exact replications of ideas, functionality, and appearance, there are simply similarities that Apple claims infringes on their product.

And considering Steve Jobs' stance on theft- Apple doesn't really care if someone steals- in fact, they applaud those who do (otherwise he wouldn't have used the word great). The fact of the matter is, Steve Jobs' view on stealing, combined with their unwillingness to license while filing for injunctions does not point to a company who is happy to live and die in the market place. It points to a company who wants to be a monopoly in the market place and cannot compete on the only important factor in the marketplace: innovation .

RE: They have a point...
By nolisi on 8/24/2011 3:43:50 PM , Rating: 2
- they just don't want people to copy them.

I have an addendum to my previous thought. There's a reason why Jobs applauds theft- he's encouraging his competitors to steal so that he can file for an injunction.

RE: They have a point...
By themaster08 on 8/24/2011 4:57:35 PM , Rating: 2
Whilst at the same time stealing ideas from competitors before they're patented.

RE: They have a point...
By Tony Swash on 8/24/11, Rating: -1
RE: They have a point...
By themaster08 on 8/24/2011 5:44:04 PM , Rating: 2
Apple is unusual in that they don't want to lisence their IP. That's their perogative surely. Lisencing is not obligatory.
No it's not, but it kinda debunks your "Apple is a market player" mantra.

Apple only wants to compete when its competitors are not a major threat to its sales.

RE: They have a point...
By nolisi on 8/24/2011 5:48:42 PM , Rating: 2
Apple is unusual in that they don't want to lisence their IP. That's their perogative surely. Lisencing is not obligatory.

You obviously missed the point and need class in reading comprehension. I know it's their perogative to not licnese. My point depends on the idea that they don't want to license. Not licensing shows is one of the factors that they're not interested in "living or dying" in the market place, in other words competing, but rather they're interested in becoming a monopolistic force in the market place. I understand there are a lot of big words, but the logic shouldn't be too difficult to understand.

Apple is happy to compete with anyone as long as they don't steal Apple's stuff.

No one stole anything of Apples, nor has it been proven. The case is about infringement, not theft- they are different ideas. Samsung is not guilty of any theft, but merely patent infringement. All this means is that Apple owns the patent on the idea. This does not mean that they created the idea, nor does it mean Samsung "stole" the idea. This is why they call it infringement rather than theft.

sueing, legal claims have any merit. That what the law is for.

My overall point- which I think you're avoiding on purpose because you're realizing your idea about Apple "living or dying in the marketplace" was mistaken - is that the courtroom is a different arena than the market place. Right now, Apple is competing in the courtroom, not the market place. The reason why they're competing in the courtroom is because they cannot compete in the marketplace with Android, as is shown by Android sales.

Your original comment:
Apple is happy to live or die in the market place on the basis of the popularity of the devices it's make

is clearly a fabrication based on your bias toward Apple. Apple is not competing on market popularity, but legal technicality. The courtroom is different than the market place.

RE: They have a point...
By DeluxeTea on 8/24/2011 10:08:24 PM , Rating: 2
Don't even try arguing sense with Tony Swash if his dear Apple and Jobs are being discussed. He's too far gone.

RE: They have a point...
By michael67 on 8/24/2011 7:38:21 PM , Rating: 1
Apple is happy to live or die in the market place on the basis of the popularity of the devices it's make including a distinctive UI.

The distortion field is strong with this one! ^_^

RE: They have a point...
By foolsgambit11 on 8/24/2011 7:16:39 PM , Rating: 1
Thanks for this post. The ruling on scrolling makes more sense to me now. The default Gingerbread (and previous Android versions?) action for lists other than the apps list isn't rubber-banding, but is in fact a highlight growing from the top/bottom of the screen. But the app list is a little like rubber banding in effect, though the physics appear slightly different - a little more like gravity than a spring. I can see why a judge would rule them substantially similar, though. Google will probably implement a different end-of-list visual cue after this ruling, thereby saving next-generation phones from having to deal with a similar lawsuit. There will still be other lawsuits, though, I'm sure.

RE: They have a point...
By Solandri on 8/24/2011 3:45:06 PM , Rating: 3
5. Apple licenses GUI technology from Xerox.

Apple didn't license the GUI from Xerox. They had an agreement where Xerox got to buy pre-IPO shares of Apple, and in exchange Apple engineers were allowed to visit PARC to look around, with an implicit understanding that ideas would be borrowed. There was no formal licensing in the legal sense.

Later, when Apple filed its famous "look and feel" lawsuit against Microsoft Windows, Xerox filed a similar suit against Apple. Xerox's suit was dismissed by the judge for unspecified reasons. Speculation among the tech industry and lawyers was that the statute of limitations had expired. Speculation among Apple fans was that the IPO/engineer visit arrangement shielded Apple from such suits. Unless you can get the judge to explain his reasoning, nobody can say who is right.

The interesting thing about this past case was that Apple's argument of "look and feel" was in respect to all of the design elements taken together. However, in the current cases, they have instead argued that "look and feel" applies to individual design elements that may be... different? Wha?

Well the old strategy of "look and feel" was denied by the courts in the 1990s. So of course they would have to try something different this time.

On the face of it, this looks like a huge win for Samsung (as well as the rest of the tech industry and all people who think IP laws have gotten ridiculous). All of Apple's claims were dismissed except for a single patent which is apparently easy to work around. My understanding from reading the translations is that the design patent which was the crux of the injunction in the Germany ban, was dismissed by the Netherlands court.

"There's no chance that the iPhone is going to get any significant market share. No chance." -- Microsoft CEO Steve Ballmer

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