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Thursday, May 31, 2012, 05:05 pm PT (08:05 pm ET)

ITC judge invokes 'Cheech and Chong' test in Apple-Samsung case

An International Trade Commission judge said on Thursday that Apple's ongoing patent infringement case may come down to what he calls a "Cheech and Chong" test, alluding to a bit by the comedy duo that involved dog feces.

According to Bloomberg, Judge Thomas Pender said that the patent design case may boil down to the "Cheech and Chong" test, which identifies an object using the following no-nonsense qualifications: “Does it look like it, feel like it, smell like it?”

For those unfamiliar with the 1970's routine, found here (warning: coarse language), Cheech forces Chong to feel, smell and taste a substance they believe to be dog feces before finally deciding that it was, indeed, excrement and that they were glad not to have stepped in it.

The humorous quip doesn't lessen the gravity of Apple's allegations, which assert that Samsung's Galaxy Tab and smartphone lineups copied the look and feel of the original iPad and iPhone. The Cupertino-based company first leveled accusations of patent infringement in an April 2011 suit that has ballooned into a worldwide dispute spanning multiple continents.

Judge Pender

U.S. Administrative Law Judge Thomas Pender. | Source: USITC


The statement was part of the case's opening arguments which saw Apple reiterate its long-held stance that Samsung flagrantly copied the design of the iPad and iPhone.

“Not content to copy the overall design and interface, Samsung has copied the smallest detail of the iPhone,” said Apple lawyer Harold McElhinny of Morrison & Foerster. “Samsung copied our original and iconic design.”

Samsung claims that it arrived at the designs after spending decades and $3.5 billion on research.

“Samsung has been in this industry, building and innovating to the point where Apple could enter the market,” said Samsung lawyer Charles Verhoeven of Quinn Emanuel. “We are anything but an also-ran trying to copy Apple’s technology.”

Verhoeven goes on to say that Samsung is "also known for its designs" and the company has been "recognized worldwide and compared favorably” to Apple.

Judge Pender will hear the Apple v. Samsung case through June 6 and is expected to deliver a ruling on Oct. 5.

The South Korean company has an ITC patent case of its own against Apple that is scheduled to be held from June 4 through June 15. Judge James Gildea, who previously handed down an unfavorable ruling against Apple in an HTC complaint that was later overturned, will be overseeing the case. A determination is expected to be reached by Sept. 14.

Apple recently filed for a U.S. injunction against Samsung's Galaxy Tab after it won an appeal against opposing findings from a California court.