Apple's legal tactics won't keep competitors at bay

Apple will have a hard time bringing Samsung, HTC, Motorola (now Google) and others accused of being Apple copycats and patent violators to their knees.

For the last week, attorneys for Apple and Samsung have been arguing over rounded corners, icons, bezels, ornamental designs and horizontal lozenge-shaped slots.

After hearing testimony -- first from Apple's witnesses and then from Samsung -- a jury at the U.S District Court in the heart of Silicon Valley will decide whether Samsung's broad array of mobile products infringed on patents and designs associated with the iPad and iPhone. 

Samsung Galaxy S3 and Apple's iPhone 4S

Samsung is contending that its devices are not illegally derivative of Apple's products, and that Apple looked to Sony in developing designs for the iPhone. Apple maintains that its "Purple" iPhone concept pre-dated Sony's prototype.

Apple says it conceived a white iPhone-looking device with a thin body, prominent screen on the front, and menu button in 2005. (Credit: Apple v. Samsung exhibits)

Apple witness Russell Winer, the chair of the Department of Marketing at New York University's Stern School of Business, testified that Samsung's devices, such as the Galaxy Tab 10.1 tablet, caused "blurring," making it difficult to tell the difference between Apple and Samsung devices. The same, of course, could be said about TVs -- it's not easy to tell the difference between a group of black-edged devices with a screen.

Unlike the conclusions from Apple's expert witnesses, Samsung believes that people can tell the difference between an Apple iPhone or iPad and their Samsung counterparts.

Samsung's attorney showed the jury that the startup screen of its devices clearly has logos identifying the model and brand of the device. Apple argued that people don't necessarily turn on the device before purchasing it. Of course, a Samsung device wouldn't come in a box with Apple's famous, heavily marketed logo and packaging.

Last month, the High Court of England & Wales ruled that Samsung's Galaxy Tab models were sufficiently different from iPad. The  judge said the Samsung tablet  was "not as cool" as the iPad, and thus not likely to get confused with Apple's tablets.  

Apple's lawyers have keyed on Samsung's documented iPhone envy. An internal email from JK Shin, Samsung's head of mobile communications, described the user experience between Apple and Samsung's phones as "a difference between Heaven and Earth." "Let's make something like the iPhone," he wrote.

Indeed, in a confidential document (see the image below) in evidence from March 2010, Samsung engineers outlined 126 issues featured in the iPhone that should be integrated into Samsung's phone platform.

Samsung's Relative Evaluation Report on the Galaxy S1 and iPhone from March 2, 2010. (Credit: Apple v. Samsung exhibits)
Apple's '305 patent.
Apple's '305 patent covers the design of the iPhone's home screen. Apple is aiming the patent at numerous Samsung devices over what it says are design similarities, claiming that consumers could be confused. Apple/USPTO

This evaluation of Samsung versus Apple phones could be construed as damning evidence, but every company does competitive analysis. It's not irrational or illegal for Samsung to want to create something like an iPhone or to mimic its features.

In the courtroom, it's a question of whether "something like" is "like enough" or "too like" in a way that violates specific, and sometimes flimsy, patents that must hold up to the scrutiny of a judge and jury. Some "blurring" among devices isn't going to convince a jury that Samsung seriously fouled Apple, but closely following the visual appearance of Apple devices when other choices could be made might sway a jury's opinion. 

The case can get even more complicated, especially for jurors, as it goes beyond the "trade dress," visual appearance issues. Apple patent 7,469,381 was granted for the the "rubber band" effect, aka "intertial scrolling" that Apple claims is a unique invention. The rubber band feature allows a user to surface elements on the screen when a user scrolls past the end of a display area. Samsung will cite its own evidence that Apple's patent claim is invalidated by prior art.

Apple v. Samsung is just one chapter in the long history of Apple trying to protect what it perceives as its intellectual property through litigation, and thwart competitors drafting off its lead. 

More than two decades ago, Apple sued Microsoft, HP and others over graphical user interface patents and copyrights. At one point, Apple sought $5.5 billion in damages. In the end, after a lengthy court battle, Apple had little to show for its effort other than inserting a modicum of uncertainty into the marketplace. 

Steve Jobs' wasn't at Apple during the lengthy Microsoft lawsuit, but during his tenure he was very protective of the software and device designs that he believed defined Apple's unique selling proposition. 

He considered them unique works of art threatened by forgers, even if they were largely derivative. In 2003, Jobs reportedly threatened to sue Sun if it commercialized its Project Looking Glass, a slick graphical interface, according to former Sun CEO Jonathan Schwartz. And he famously implied to his biographer, Walter Isaacson, that he would take Google to court for copying the iPhone's software with its Android mobile platform. "I will spend my last dying breath if I need to, and I will spend every penny of Apple's $40 billion in the bank, to right this wrong. I'm going to destroy Android, because it's a stolen product. I'm willing to go thermonuclear war on this," he told Isaacson.

Jobs is no longer leading Apple, but his successors don't appear to be taking the nuclear option off the table for any company that tries to mimic its products too closely. Nonetheless, Apple will have a hard time bringing Samsung, HTC, Motorola (now Google) and others accused of being Apple copycats and patent violators to their knees. If Apple wins on some counts, the verdicts will be appealed, and dragged out over several years. All the companies dueling with Apple have plenty of money to burn on attorney fees and dueling patent portfolios. 

In the end, Apple knows that the best way to build a moat that keeps competitors at bay is to create products that customers crave. Creating legal challenges for competitors who borrow or steal ideas from Apple is part of the business game, but all the patent suits in the world won't prevent Apple from falling off its pedestal if it fails to repeat the success of the iPhone and iPad or follow the Steve Jobs way: "Simple can be harder than complex: You have to work hard to get your thinking clean to make it simple. But it's worth it in the end because once you get there, you can move mountains."  

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