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Final ruling is still pending; Judge believes that Samsung infringes, but Apple's patents are questionable

For the world's largest phonemaker and world's largest Android phonemaker, Samsung Electronics Comp., Ltd. (SEO 005930) some good news finally came in its lawsuit war [1][2][3][4] [5][6][7] with Apple, Inc. (AAPL). After seeing its flagship Galaxy Tab 10.1 banned from sale in Germany (on the grounds of design patent infringements) and in Australia (on the grounds of technology patent infringements) it has scored an early victory in arguably its most important court battle in the U.S.

I. U.S. Federal Judge to Apple: No Injunction for You!

On Thursday, Judge Lucy H. Koh, a justice in the Northern District Californian federal court, denied Apple's request to ban sales of Samsung's product for now, on one of its four patent claims.

Specifically Judge Koh commented that an injunction was not warranted based on Apple's sole technology patent in the case, U.S. Patent No. 7,469,381.  She called her decision on the patent, which covers document scrolling "tentative" and said she would issue a final ruling "fairly promptly".  She comments, "It took a long time to make that distinction"

Reuters' court reporter writes that the judge commented that she felt Samsung did infringe on Apple's patents, though the report does not clarify whether she indicated which patents she felt were infringed -- the three design patents, or the sole technology patent.  On the other hand, the report says the judge complained that Apple is having problems establishing the validity of its patents.

II. Apple's List Scrolling Patent and Samsung's Violation

The technology patent by Apple claims ownership to temporarily displaying a non-active region to a document, such as a webpage or list, when scrolling, zooming, or rotating.  Our testing indicates that in Android 2.3 Gingerbread -- the OS on the Galaxy S smartphone named in the suit -- that such a capability is indeed present in some places.

In the Gallery app when you scroll downward part of a black empty row is shown when you reach the end of the list of pictures and keeps scrolling.  When you release, the list bounced back to the last row.  

Android Gingerbread Gallery App
Samsung/Google's "slavish" infringement [Gallery App]
This scrolling feature is not found, based on our testing, on webpages in the built in browser.  However, a similar feature -- also covered by Apple's patent -- is present.  When you zoom out, you will see gray around your webpage when you reach the edges of the document.  Releasing the zoom pinch will bounce the document back to full screen, as mentioned in the Apple patent.

Browser App Gingerbread
Samsung/Google's "slavish" infringement [Browser App]

This patent seems relatively obvious in that it basically covers an animation and if GUI animations were broadly patentable video games as we know them couldn't exist today, software would be litigated into oblivion, and the web would be a ghost town.  That said Samsung will need to follow the path of obviousness and invalidate Apple's patent in court, as it clearly does use the animation technique covered in this patent.  

If Samsung cannot do that for some reason, it should be relatively trivial to remove this feature as the animation does not significantly improve the Android experience in our opinion.

(As a technical note it is operating system maker Google, Inc. (GOOG) who created the infringing design, but Samsung uses Google's OS so is being sued by proxy.)

III. Apple's Design Patents

Now that Judge Koh has tentatively denied Apple's motion for a preliminary injunction regarding the utility patent, the question becomes what she will do when it comes to the design patents -- U.S. Design Patent No. D618,677D593,087, and D504,889.

The first two patents cover the design of the iPhone 4 and iPhone (original), respectively.

The validity of these patents could be question mainly from the perspective of Apple's broad application of them.

Below we have diagrammed the differences between the iPhone designs and Samsung's Galaxy S, which Apple claims "slavishly" copied the iPhone.  Specifically note that the folowing features are different:
  1. Button count and placement
  2. Connectors
  3. Side profile of phone (note the lip on Samsung's design)
  4. Size of screen and general phone size.
  5. Logo/name placement on body
Smart Phone Comparison

Similar differences can be found between the Samsung Galaxy Tab 10.1 and the iPad, an early version of which is covered in the final patent.  We've detail these differences between the patent, the actual iPad, and the Galaxy Tab 10. below, which include:
  1. Only Galaxy Tab 10.1 has a camera (compared to the original iPad).
  2. The thickness in the design patent doesn't match the thickness of the iPad or Galaxy Tab (please measure this in an imaging software, in pixels, if you don't believe us).
  3. Bezel sizes don't match between any of the three designs.
  4. Connectors and buttons on the side are different.
  5. Screen sizes and aspect ratios are different.
  6. Only the iPad has a home button.
  7. All tablets are clearly and unambiguously branded.
  8. The back color doesn't match.
Tablet comparison

Really when you look carefully from an artistic perspective (presumably the criteria for merit on a design patent) in both the tablet and smartphone cases the biggest visual similarities are simply the general form factor (thin rectangles) and the color scheme.  In this sense the devices are somewhat similar in looks.

There was a bit of court room drama that's gathered much attention in which Judge Koh held up the Tab and iPad and asked Samsung's lawyer Kathleen Sullivan to identify her company's product.  Ms. Sullivan reportedly could not tell them apart at that distance (it was unclear if Judge Koh was covering the iPad's home screen button).

At that point Judge Koh asked, "Can any of Samsung's lawyers tell me which one is Samsung and which one is Apple?"

At that point one of Samsung's other lawyers finally coughed up the correct response.

While the incident was certainly humorous, it's important to not put too much weight in such court room drama, lest it leads one to misleading conclusions.  One need only remember the controversial O.J. Simpson/Johnny Cochrane "if the glove doesn't fit" showmanship to realize that.

While the designs are somewhat similar in a very general sense, it seems a slippery slope to grant Apple broad ownership of such a design for two reasons.  First, it would create ambiguity of exactly how broad Apple's design ownership is.  Second, it would essentially grant a monopoly on the state of the art smart phone and tablet form factor to Apple.  

Given the radical differences in the designs, it would seem if the designs are found to "infringe" that only Apple can make thin rectangular smart phones and tablets.  This kind of ruling could have a catastrophic effect on many emerging electronics markets.  After all, if this kind of standard was applied to the PC industry, Dell, Inc. (DELL) and Hewlett-Packard Comp. (HPQ) could be suing each other and Apple for copying each others' "general form factor".

Clearly this kind of broad design ownership hasn't been granted in other electronics markets, so it seems doubtful that Judge Koh will rule this way.  But stranger things have happened.

IV. Looking Ahead

In the U.S. patent battle, a final ruling on the preliminary injunction request with respect to all patents will soon be issued.  Given the pressure from wireless carriers Verizon Communications, Inc. (VZ) and Deutsche Telekom AG's (ETR:DTE) T-Mobile USA [1][2], and Judge Koh's previous statements, it seems likely that Apple's request will be denied.

The question then will become whether Samsung can successfully invalidate Apple's patents, or at least escape a design infringement ruling (as the utility patent's infring features could easily be removed).  Also pertinent is whether Samsung can succeed in its counter claim, which sues Apple on the grounds of infringing on many of its 3G communications patents.

There's also been recent action in the Netherlands and Australian arenas, we will update you on this shortly.

Source: Reuters

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RE: Missing the point
By Tony Swash on 10/16/2011 9:23:48 AM , Rating: 2
Scrolling and rubber-banding on a UI was invented long before iOS. Again you don't seem to understand. Apple seems to think just because they do things on a touch screen, that makes them unique and revolutionary. It's NOT.

Clearly if that is the case then those Apple sues over the rubber banding patent will win and you can relax. What's agitating you is the fact that Apple's case might have merit and they might well win.

Tough. You can't patent an "experience". It's time for Apple to grow up and let the products compete on their own merits. If a tangible piece of tech is infringed on, hey, by all means. But all this touching and feeling and experiences and happy thoughts with rainbows crap just doesn't cut it.

Jobs knew he was dying so he didn't care if his company poured billions into a legal black hole just to further his legacy. Maybe now that he's gone, cooler heads can prevail.

Apple is perfectly willing to let their products compete in the market place - fairly. That means other companies cannot copy any aspect of Apple's designs, either hardware or software, that Apple have a patent for. It means their competitors have to come up with their own designs.

Wishing away copyright and patents of aspects of software is not going to work and does not make sense. Suppose I start market a clone of Microsoft's operating system, including features like identical scrolling and window controls, a start menu with the same functionality in the bottom left corner, with a logo that looks pretty similar to the Windows logo, with the same names and structure for the menu system, etc, etc and I call that product 'MyWindows' would anybody be surprised if Microsoft sued. Would anybody think that Microsoft suing was some sort of attack on the principal of competition. Of course not. As I said what upsets people is that Apple actually has a case and will probably win enough cases so that Samsung and other will have to retreat from blatant copying.

I note that the president and chief operating officer of Samsung Electronics, Lee Jae-yong, has been invited to Apple Inc's private memorial service for Steve on Sunday and is then scheduled to have a meeting with Tim Cook Apple's CEO. Apple have been making clear moves to find alternatives to Samsung for its multi billion dollar supply contracts and with Apple's legal wins (and Samsung's legal loses) stacking up maybe Samsung can see they would be better off dropping the cloning and copying and moving on. Let's hope so.

RE: Missing the point
By DeluxeTea on 10/17/2011 12:20:35 AM , Rating: 2
Suppose I start market a clone of Microsoft's operating system, including features like identical scrolling and window controls, a start menu with the same functionality in the bottom left corner, with a logo that looks pretty similar to the Windows logo, with the same names and structure for the menu system, etc, etc and I call that product 'MyWindows' would anybody be surprised if Microsoft sued.

Of course Microsoft would sue if you do that because you copied their logo and used a very similar name/brand for it. Samsung never copied the Apple logo and never used similar branding for their Galaxy products.

You really love getting reamed in the ass by Apple, huh?

"A lot of people pay zero for the cellphone ... That's what it's worth." -- Apple Chief Operating Officer Timothy Cook

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