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Thursday, August 23, 2012, 03:33 pm PT (06:33 pm ET)

Apple, Samsung portray different visions of the future given jury's decision


Apple ties Samsung's turnaround to 3 months of intense copying

"Samsung copied Apple's four years of work without taking any of the risks," McElhinny stated, direction attention to another internal document from March 2010 that presented 100 pages of "detailed instructions of what to copy," several of which were Apple's patented features, including its double tap to zoom utility patent and a icons with a 3D lighting effect.

As a result, "Samsung's smartphone sales steadily began climbing," and the company "began releasing a series of models copying iPhone."

In August 2010, Apple called Samsung executives to a meeting, informed them of the alleged infringements and asked them to stop. In response, McElhinny says Samsung "ginned up" patent infringement claims of its own.



McElhinny then charged that Samsung has subsequently "disrespected this process," refusing to bring any high level executives or important designers or inventors to testify and face cross examination under oath the way Schiller and Forstall had.

"Samsung did not bring a single witness who admitted seeing any of the copying documents," McElhinny said, noting the testimony of Samsung's chief strategy officer Justin Denison, industrial designer Jin Soo Kim and icon designer Jeeyuen Wang, all of whom disavowed having copied Apple's designs.

However, Wang had a copy of Apple's Human Interface Guidelines for iOS, and McElhinny pointed out that Google had informed Samsung's senior executives that its tablet design were "problematic," meaning that they had either "not bothered to tell" Kim, or that his testimony was not accurate.

Having wrapped up his chronological portrait of Samsung's top executives making a clear and directed effort to copy Apple's work in a three month period, and noting how this low-risk copying effort had quickly turned the company's fortunes around. Samsung's sales "took off after the first iPhone-derived product was added to the mix" in June 2010, McElhinny stated.

Apple's outlines its design patents

Having outlined its case of why, when and how Samsung copied, Apple's legal team then focused on what: specifics of the design patents, trade dress, and utility patents that Apple maintains that its largest supplier willingly infringed upon.

Design patents are Apple's strongest ammunition because if it can prove infringement, it can demand full payback of all of Samsung's related profits a number Apple estimates to be north of $2 billion, rather just damages or royalties, which would amount to millions of dollars (notably, less than the cost of the trial).

For infringement of design patents, Apple pointed out, accused products only need to be "substantially the same." McElhinny noted Judge Koh's jury instructions that stipulate "minor differences should not excuse infringement," and that infringement of design patents is a "resemblance designed to deceive an observer."

"No Samsung witness was called to refute similarity in design patents," McElhinny stated, adding that the company only "called attention to minor differences instead," such as differences in corner radii that can only be noted with precision calipers, the feel of a glass edge or the use of two different materials on the back of a tablet instead of the iPad's one.

While Samsung now claims Apple's patented designs are obvious and the simple result of functional necessity, the company didn't offer any evidence of obviousness, McElhinny stated, and contended that historically, the iPhone and iPad were both greeted with "initial skepticism, acclaim, commercial success and then copying," arguing for its novelty.

"Every smartphone does not have to look like an iPhone," McElhinny charged, depicting a variety of devices that are substantially different, including Nokia's Windows Phone.



Apple case for trade dress dilution and utility patents

In addition to design patents, Apple is also asserting both registered and unregistered trade dress rights, which are distinguished from design patents as a form of intellectual property, McElhinny noted. Trade dress claims have differing legal tests than patents he explained, defining trade dress as "non functional physical detail that identifies the product source and distinguishes it from others."

Trade dress claims are only protectable if they are non-functional and non-essential in nature "when taken as a whole" and convey secondary meaning to buyers (primarily, who makes it). Infringement of trade dress is defined in the case "if likely to cause consumers to be confused about the source."

McElhinny not only presented point-of-sale confusion (which Apple's team supported with comments that BestBuy had seen returns from Galaxy Tab buyers who thought they were getting an iPad equivalent) but also raised testimony from Schiller, who had commented on confusion in TV and billboard advertising.

Samsung's trade dress dilution, McElhinny charged, took something famous and caused it to look less distinctive. Samsung "led the way" and others have followed it, he noted, diluting what was at the time Apple's "world famous designs."



Emphasizing this, McElhinny recalled Denison's testimony that Samsung had spent $1 billion on marketing its products in US, "mimicking our designs."

McElhinny next added Samsung was "also busy copying user interface," including infringement of Apple's "bounce" and "double click to zoom," which he said expert witnesses has verified in Samsung's source code. Rather than presenting a defense of patent infringement, Samsung instead claims each Apple patent to be invalid.

However, the prior art Samsung presented failed to demonstrate all of the elements in Apple's patents as a whole, McElhinny said. He noted Mitsubishi's Diamond Touch (cited as click to zoom prior art) lacked a touchscreen and other elements in Apple's patent, while a Launch Tile app (cited as prior art in the bounce patent) "doesn't do anything in response to the end of the document being reached."

On page 3 of 4: Apple defends billions in damages