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Note to Judge Koh: Pics of the Samsung Epic Touch 4G With and Without the Google Search Box ~pj Updated 3Xs
Wednesday, August 08 2012 @ 11:18 AM EDT

The Verge reports on another scuffle between the judge in Apple v. Samsung, the Hon. Lucy Koh, and the Samsung lawyers:
Things at Apple v. Samsung kicked off with a bang this morning, as Samsung accused Apple of tampering with the icon layout of one of its phones to look more like the iPhone. At issue is a photograph of the Epic Touch 4G that Apple presented which shows an icon layout that closely mirrors that of the iPhone. Samsung objected, saying that it noticed yesterday that the phone doesn't represent the state of the Epic 4G Touch out of the box. Samsung presented its own photo — which its attorneys said had been taken last night — which featured a different layout with a larger number of homescreens.

Judge Koh, whose temper has been growing increasingly short with both parties, took Samsung's legal team to task, actually questioning whether Samsung's photo was legitimate. She pointed out the Samsung's image didn't feature the Google search widget — something the company's attorneys said was present on the device out of the box. "Why does your homescreen not show the Google search box when you're telling me the phone has the Google search box," she asked, eventually demanding to just see the device in question herself. She then pointed out that Samsung's image featured yesterday's date — clearly indicating that the photo had not been taken on Sunday as alleged. Samsung's attorney eventually admitted he misspoke about the date.

I think the judge may have been mistaken about what has to be on that phone's home page, or she just has negative ideas about Samsung. Or maybe everyone is feeling too much stress. I have three photographs to show you from doing a simple search on the Web, three of that very phone with no Google Search box and one with it. Apparently it varies. Nobody is doctoring anything. It's just a lack of tech fu in this picture.

Here are the photographs from the web showing that very phone with no Google Search box:
And here's the one with the Google Search box:
PhoneDog.
If the Verge's account is accurate, the judge probably owes Samsung's lawyers a public apology for impugning their integrity in a public courtroom.

I'm sure, by the way, that Apple's lawyer, Michael Jacobs, would never doctor anything either, just because we watched him for years in the SCO v. Novell case, and he was totally honest and above-board at all times, even when it was not advantageous to him and his side. Unless there has since been some Faustian bargain, which I'd never believe without absolute proof, or someone else on the team did it, knowingly or inadvertantly, I think everybody just needs to calm down, Samsung, Apple and the judge.

Yes, the headline is a joke. I'm sure Judge Koh won't be reading Groklaw. But if she did, she'd make fewer technical mistakes, methinks. As for law firms, they need more technically knowledgeable people. Judges too. Seriously. And someone needs to think about what this all means -- who decides which icons go on the phone? Is it the mobile phone companies, by any chance? If so, I see implications. Legal implications. I mean, if the accusation by Apple is that Samsung's icons are infringing Apple's trade dress or trademarks because there are the same number and/or they are arranged the same way as Apple's on the iPhone, hence confusing customers, and if it isn't Samsung doing the arranging or the choosing, now what happens to that claim? I can see implications for any damages too, even if Samsung were found liable.

Maybe Samsung tried to tell her all this, but she was too hot about what she was thinking was the case that she cut them off. We'll find out when the transcript arrives in a few months. There is a Scripture that talks about being slow to get angry, and I think I see why that is really good advice. It helps you figure out the real picture before you fly off the handle about something that turns out not to even be so.

Update: Here's a YouTube video showing a techie at TechnoBuffalo unboxing a Sprint Samsung Epic 4G Touch (Galaxy S II). You'll see the way it looks before you do anything. No Google Search Box on the first home page you see. But stay with the video. You'll see it. And the Groklaw volunteer who found it and left the comment about this put it, the Google Search Box "comes up to home screen 5, which has a Google Search widget at the top of it. And then when you swipe over one screen to the main home screen (4), it looks exactly like the picture Samsung presented. Finally at 5:44 we see what Apple claims the home screen looks like." Mystery solved. Everybody needs to apologize to everybody else.

Update 2: Another video on YouTube by PhoneDog of an unboxing of a Galaxy S 4G (the kind with the slide-out Qwerty keyboard too), starting with an unopened box. The Google search box is right there, right out of the box on one of the home screens. If there is no Internet inside the courtroom, your results may vary if you unbox there, because if you can't get on the Internet, some things will work, but others will not, I'm told. What the lawyers can do to verify is get two phones. Unbox one, shooting video of it, where you have Wifi or 4G. Then go somewhere where there isn't any Internet availability, and unbox it, shooting video. You will see the difference. The iPhone is pretty much the same, but the Samsung look varies greatly.

Update 3: The best coverage of the day, to my taste, is the quirky style of Above the Law's Christopher Danzig's "Above the Law Goes to Trial - Dispatch from Apple v. Samsung: ":

Not going to lie, it got pretty boring. Judge Koh, at some point, offered jurors the opportunity to grab caffeinated drinks from the fridge, because she probably saw some eyelids drooping (one of the jurors looks like he’s 14, I swear to God. He was also wearing a Doors T-shirt).

On cross-examination, Verhoeven employed the same strategy that he had with Bressler: look closely at the nitty-gritty aspects of the phones to see how different they really are. He spent time going through icons one by one, trying to force Kare to acknowledge they were different. He also highlighted the YouTube and maps icons on the iPhone, which are both Google products. Kare’s tone changed pretty quickly; her voice developed an edge to it. I wish I would’ve counted how many times she said, “I don’t know.”

In a flash of theatrics, which he repeated later in the day with an iPad, Verhoeven showed a Samsung phone on the video screen so everyone could watch the extensive intro where “Droid” and “Samsung” are flashed and beeped at the user repeatedly. He asked if anyone would be confused about which product they had after watching the intros. Ars Technica transcribed the conversation here.

Verhoeven’s calm intensity during cross examination was effective, and you could feel Kare deflating as questions continued. He ended by asking her how much Apple paid her to be in court. Answer: $550 per hour, and $80,000 total so far. Ouch.

Many more goodies in his account. I wish he could go every day. He says Judge Koh is awesome to watch.

  


Note to Judge Koh: Pics of the Samsung Epic Touch 4G With and Without the Google Search Box ~pj Updated 3Xs | 353 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Note to Judge Koh: Pics of the Samsung Epic Touch 4G With and Without the Google Search Box ~pj
Authored by: Anonymous on Wednesday, August 08 2012 @ 11:25 AM EDT
Looking like out of depth on this. Time for a clued up judge perhaps?

[ Reply to This | # ]

Verge's account
Authored by: rsteinmetz70112 on Wednesday, August 08 2012 @ 11:31 AM EDT
Link?

---
Rsteinmetz - IANAL therefore my opinions are illegal.

"I could be wrong now, but I don't think so."
Randy Newman - The Title Theme from Monk

[ Reply to This | # ]

German/Dutch Galaxy Tab case
Authored by: Anonymous on Wednesday, August 08 2012 @ 11:34 AM EDT
You can hardly blame Samsung for having a very close look at every photo Apple submits. They messed up big time in Germany.

[ Reply to This | # ]

"Out of the box"?, but which box
Authored by: whoever57 on Wednesday, August 08 2012 @ 11:38 AM EDT
Phones are customized for carriers, so it is likely that different carrier
versions of the same phone would have different home screens out of the box.

[ Reply to This | # ]

Samsung or the Carriers????
Authored by: Anonymous on Wednesday, August 08 2012 @ 11:43 AM EDT


Whether the Google box appears on the home page will be a decision made by
carriers not by Samsung or Android.

[ Reply to This | # ]

Why can't the photo have been taken yesterday?
Authored by: Wol on Wednesday, August 08 2012 @ 11:43 AM EDT
Okay, it's unlikely I know, but the date on a device is VERY rarely correct
"out of the box". I just set up a new camera for my daughter and the
date was 01-jan-12 00:00 until I setit up correctly.

But I seriously think Samsung need to get a whole load of court orders from
other cases about Apple and dump them on Koh as "background reading".

Cheers,
Wol

[ Reply to This | # ]

Note to Judge Koh: Pics of the Samsung Epic Touch 4G With and Without the Google Search Box ~pj
Authored by: Anonymous on Wednesday, August 08 2012 @ 12:16 PM EDT
Looked at the links with the pictures and the ones with out google search on the
home page is not the same phone as the one with the search on the home page.They
have different buttons across the bottom.

[ Reply to This | # ]

It has a search BUTTON!
Authored by: tz on Wednesday, August 08 2012 @ 12:17 PM EDT
I love my Samsung Galaxy Player 5.0, and it looks almost like a phone, but it
doesn't have that magnifying glass search button. Why would you need a widget
if you have a button that brings up the same thing?

[ Reply to This | # ]

Corrections here
Authored by: SpaceLifeForm on Wednesday, August 08 2012 @ 12:27 PM EDT
If any.


---

You are being MICROattacked, from various angles, in a SOFT manner.

[ Reply to This | # ]

OT here
Authored by: SpaceLifeForm on Wednesday, August 08 2012 @ 12:30 PM EDT
Please make any links clickable.

---

You are being MICROattacked, from various angles, in a SOFT manner.

[ Reply to This | # ]

News Picks commentary here
Authored by: SpaceLifeForm on Wednesday, August 08 2012 @ 12:33 PM EDT
Please include a link to the article you are referencing.

---

You are being MICROattacked, from various angles, in a SOFT manner.

[ Reply to This | # ]

Comes docs here
Authored by: SpaceLifeForm on Wednesday, August 08 2012 @ 12:36 PM EDT


---

You are being MICROattacked, from various angles, in a SOFT manner.

[ Reply to This | # ]

DNA
Authored by: wood gnome on Wednesday, August 08 2012 @ 12:41 PM EDT
What would be the options to MoFo, after being confronted with pictures that are
doctored by Apple? Mind you, I'm not saying Apple did present doctored pic's
right now, but they just might in the course of the case (wouldn't be the first
time). Would things like this have been discussed before MoFo accepted to take
Apple's case?
Just asking.

[ Reply to This | # ]

"...who decides which icons go on the phone?..."
Authored by: tiger99 on Wednesday, August 08 2012 @ 12:42 PM EDT
Yes, I think it is the mobile network operators who decide. OK, I am in the UK, and it might be different, but my HTC Legend, which I have just repaired*, displays a Vodafone logo while booting up, and has other unique features, including several icons and their default placement. It was accompanied by a Vodafone instruction manual and if I remember correctly came in a Vodafone box.

On the other hand, my Huawei dual sim U8520, which I bought in Australia when the Legend broke, was sold as unlocked (good price too, at Dick Smith's) and behaves exactly as per the manufacturers instruction manual.

* It broke last September because I tried to use an Australian Telstra SIM, to avoid paying the horrendous charges which Vodafone were going to apply, and it must have been slightly thicker than standard and strained the SIM retainer, so it was not pressing the SIM against the contacts properly. Finally, yesterday, I had nothing to do and used a screwdriver to bend the middle of the SIM retainer down, so it is always puting spring pressure on the SIM. Normal operation again!

Oh, and well off topic, but just try getting an Australian SIM, or at least registering it and topping it up, unless you are, or know, an Australian citizen with driving licence and a utility bill! No doubt intended to prevent criminals using pay as you go phones, but a very real nuisance to visitors.

Next job is to root the Legend, and get rid of the Vodafone branding. Some people really know how to annoy their customers, and sticking their brand on a phone is one way of doing it. Right now there are 45811 people accessing the xda-developers web site, which has 4,557,698 members so it is very clear that there are a lot of people dissatisfied with what their network has supplied them. I don't know of anywhere else, certainly not the Linux kernel, or any distro, which is within an order of magnitude of these numbers.

[ Reply to This | # ]

Really?
Authored by: Anonymous on Wednesday, August 08 2012 @ 01:02 PM EDT

Stock images from, PCWorld, Amazon, and The Android Invasion are your proof that
the judge is wrong? Really? It's not like those images couldn't be STOCK
IMAGES and not actually representative of what the user gets out of the box
because marketing never sends STOCK IMAGES that don't necessary represent what
the actual user gets.

PJ, **YOU** owe the judge an apology.

[ Reply to This | # ]

have you tried buying a high end phone?
Authored by: Anonymous on Wednesday, August 08 2012 @ 01:31 PM EDT
In the uk, i dont know of any shop that has these phones on the shelves. You
have to ask for the one you want, so the only confusion would be a retailer
giving you the wrong phone.
They have all the display models to look at to make sure you get the one you
want to, but anything you want they have to go out back and fetch.

[ Reply to This | # ]

Something Inconsistent with Verge account
Authored by: indyandy on Wednesday, August 08 2012 @ 02:03 PM EDT
From the Verge story:
Samsung slammed by judge after accusing Apple of tampering with evidence

By Bryan Bishop on August 7, 2012 12:14 pm

Ok so this report is dated Tuesday August 7th

Things at Apple v. Samsung kicked off with a bang this morning, as Samsung accused Apple of tampering with the icon layout of one of its phones to look more like the iPhone. At issue is a photograph of the Epic Touch 4G that Apple presented which shows an icon layout that closely mirrors that of the iPhone. Samsung objected, saying that it noticed yesterday that the phone doesn't represent the state of the Epic 4G Touch out of the box. Samsung presented its own photo — which its attorneys said had been taken last night — which featured a different layout with a larger number of homescreens.

(My emphasis)

So the courtroom drama took place Tuesday morning concerning photographs claimed to have been taken the night before - which is Monday in most jurisdictions.

She then pointed out that Samsung's image featured yesterday's [Monday's - indyandy] date — clearly indicating that the photo had not been taken on Sunday as alleged. Samsung's attorney eventually admitted he misspoke about the date.

So I think this gives us this gives us the following options:

  • The Verge got it wrong reporting when the photographs where declared to have been produced.
  • The judge mis-remembered the day and used that as yet another reason to castigate Samsung. The Samsung attorney admitted he misspoke because:
    • He was unsure what he had said and apologised in case he had mis-spoken.
    • He knew perfectly well what he had said but let it pass as the transcript would show yet more evidence of the judge's bias/competence issues for appeal.

Much as the reports of professional reporters are good I must say that I find the reports of Groklaw members are much better at clarifying details like this.

I look forward to reading the transcript when it is finally released

[ Reply to This | # ]

Home Page
Authored by: maroberts on Wednesday, August 08 2012 @ 02:07 PM EDT
The home pages are totally configurable in terms of what widgets you put on
them. In fact the home page is a virtual desktop with a number of home pages.

I fail to see therefore, how it matters what widgets happen to be deployed on
the first screen "out of the box".

[ Reply to This | # ]

Note to Judge Koh: Pics of the Samsung Epic Touch 4G With and Without the Google Search Box ~pj
Authored by: BobinAlaska on Wednesday, August 08 2012 @ 02:19 PM EDT
Ran across this thought everyone might enjoy. User Friendly for today

---
Bob Helm, North Las Vegas, NV

[ Reply to This | # ]

Samsung's photo contradicted its own statements, of course the Judge has questions
Authored by: Anonymous on Wednesday, August 08 2012 @ 02:20 PM EDT
Lets see, Samsung said that:
1) the Google widget is on the phone out of the box; and
2) the photo was taken last night.

However, the photo that Samsung is parading as evidence of Apple's tampering
is inconsistent with both of these statements. I would hope the Judge would
question Samsung on this.

What technical mistake has the Judge made? She pointed out inconsistencies in
what Samsung told her. Seems to be me, her technical understanding is right
on with this one. And it is laughable to think that either one of the law firms

here do not have a deep technical understanding of these patents. Do you
really think that with the money is on the line here the the lawyers do not have

access to the best technical people available?

[ Reply to This | # ]

If carriers control the screen layout
Authored by: Kevin on Wednesday, August 08 2012 @ 02:40 PM EDT
I can just foresee Apple's argument here: if the carriers control the screen
layout, then Samsung should still be held liable, because it didn't structure
the operating system in such a way as to forbid carriers - or for that matter,
end users - from configuring it to look too much like Apple's precious trade
dress. The fact that they didn't take active steps to prevent someone from
reskinning it is, of course, contributory or vicarious infringement.

Of course, taking such steps will mean either crippling the configurability, or
else having code that recognizes the protected screen layout and forbids
reproducing it. That code itself, of course, is an implementation of Apple's
trade dress in disguise, and will infringe unless it is licensed from Apple.


---
73 de ke9tv/2, Kevin (P.S. My surname is not McBride!)

[ Reply to This | # ]

Note to Judge Koh: Pics of the Samsung Epic Touch 4G With and Without the Google Search Box ~pj
Authored by: Anonymous on Wednesday, August 08 2012 @ 02:43 PM EDT
Isn't this all about "look and feel"? And didn't we go through
all of this many years ago with Apple and MS et. al?
Why are we going through this again?

[ Reply to This | # ]

Curiosity compels me ...
Authored by: cjk fossman on Wednesday, August 08 2012 @ 03:03 PM EDT
to ask if Apple's precious design patents indicate the radius
of the rounded corners.

I ask because every tangible rectangular object is going to
have rounded corners, even if the rounding isn't discernible
to the unaided eye.

So isn't Apple trying to claim a natural phenomenon as a
distinguishing design feature?

[ Reply to This | # ]

Which OS was it running
Authored by: Anonymous on Wednesday, August 08 2012 @ 03:04 PM EDT
The placement of the G search changed with ICS.

Older versions had the G search widget seen in that photo, it's a normal widget,
usually found on the default launch screen though carriers can change that.

On ICS it's no longer a normal widget but a fixed element with reserved screen
space at the top of every page. Again carriers can change that. Not sure if
users can move it on stock ROMs, there are settings buried deep in the 3rd party
ROM I use that might not be standard.

I would guess Apple really did mess with the layout because virgin phones tend
to ship with either nearly empty home screens OR jam packed with flashy carrier
crud including the large widgets iPhone simply doesn't support.

[ Reply to This | # ]

The date inconsistency is probably due to time zones
Authored by: Anonymous on Wednesday, August 08 2012 @ 03:17 PM EDT
The disagreement over whether the photo was taken on Sunday or
Monday is probably due to confusion arising from the time zone
difference between California (UTC-7) and Seoul (UTC+9).
Someone took a picture on Monday morning, sent it to Samsung
headquarters where it was Sunday evening and gets described as
having been taken on Sunday, and the description gets sent
back to California without a time zone correction. Seems
immaterial, and not something the judge should be getting
angry about.

[ Reply to This | # ]

Note to Judge Koh: Pics of the Samsung Epic Touch 4G With and Without the Google Search Box ~pj
Authored by: Anonymous on Wednesday, August 08 2012 @ 03:50 PM EDT
You do not speak for me. I do not wish anyone the illness that comes from a
breakdown. And I do not feel such disrespect so as to speak so bad abut this
judge.

[ Reply to This | # ]

Prior art
Authored by: Anonymous on Wednesday, August 08 2012 @ 04:06 PM EDT
I was just thinking of prior art with respect to rounded corners. I don't
remember anyone mentioning this but if they did I'm sorry to repeat it.

I remember my first tablet having rounded and square corner models. It was the
pocket edition with rounded corners and the larger tablet had square corners. At
that time it was called Etch A sketch.

[ Reply to This | # ]

Carrier skins
Authored by: Anonymous on Wednesday, August 08 2012 @ 04:09 PM EDT
Goodness gracious me, how can we expect a fair trial here when
the judge appears to have no clue about the tech on trial, and
the lawyers for both sides appear incompetent in preparing
sound sensible briefs. Anybody who knows anything about
this industry, and that includes plaintiff and defendant, both
of whom ought to have informed their lawyers, knows that
what appears on the Android bootup screen is decided by the
vendor in the local market. He may choose to leave it as it comes
from factory, he may choose to customise it according to what he
wishes the local market to have.

Is everybody in the courtroom mesmerised by the iPhone where
the bootup screen is not varied by the vendor, it always
complies with the stone carvings on Mt Cupertino?

This case should be transferred to Alsup J.
He'll have it sorted before lunch.

[ Reply to This | # ]

Note to Judge Koh: Pics of the Samsung Epic Touch 4G With and Without the Google Search Box ~pj Updated
Authored by: Anonymous on Wednesday, August 08 2012 @ 08:50 PM EDT
The judge seems to be extremely biased towards apple. I am expecting apple to
win, but Samsung to have enough arguments for a mistrial.

[ Reply to This | # ]

Is the appearance of the screen part of the lawsuit?
Authored by: Anonymous on Wednesday, August 08 2012 @ 09:09 PM EDT
I mean, icons, and other stuff that any user can easily customize. I read one
of the exhibits comparing the iphone to a samsung phone, and kinda can agree
with Apple's point about Samsung trying to make stuff look like an iphone, but
the question I have , is the idea of using different colors for the icons and
removing a border around them, protected by Apple's trade dress design patent?

How about changing the layout of of a calculator emulator when it is flipped
from portrait to landscape?

This kind of stuff seems so obvious that it can't be novel.

[ Reply to This | # ]

discussion of Apple, Samsung, and innovation
Authored by: Anonymous on Thursday, August 09 2012 @ 08:01 AM EDT

An interesting discussion of the Apple vs Samsung trial is taking place at the EE Times website.

[ Reply to This | # ]

Ignore me, I'm just rambling.
Authored by: Ian Al on Thursday, August 09 2012 @ 12:19 PM EDT
A comment in another place got me musing:
Apple has a dilema - it's design philosophy is simplicity, pureness, elegance- The iphone was certainly the first phone to simplify the look - a smooth touch screen interface devoid of busy buttons. But this also makes it difficult to patent. It is easier to patent complex buttons and shapes
In PJ's previous piece she reported a comment that
Chris Stringer, for example, was there to give testimony that Apple made the choices that it did to make a beautiful product, not for function alone.
She also linked to this explanation of trade dress:
Therefore, product design trade dress or other designs that cannot satisfy the ‘inherent distinctiveness’ requirement may only become protectable by acquiring ‘secondary meaning.’ Secondary meaning requires that the product design acquire an association in the public mind with the producer of the goods.

Under the functionality doctrine, trade dress must also be nonfunctional in order to be protected. If the element is functional, protection should be sought under patent law. What is functional depends upon the particular product. To be nonfunctional, it cannot affect a product’s cost, quality, or a manufacturer’s ability to effectively compete in a non-reputational way. For example, color is functional in regard to clothing because that product is purchased substantially because of its color and appearance, but color is not functional on household insulation, which is purchased purely to be installed in a wall and is never seen. In fact, courts have found that the color of certain building insulation constituted protectable trade dress.
In another article, PJ mentioned two competing restaurant chains:
"a festive eating atmosphere having interior dining and patio areas decorated with artifacts, bright colors, paintings and murals. The patio includes interior and exterior areas with the interior patio capable of being sealed off from the outside patio by overhead garage doors. The stepped exterior of the building is a festive and vivid color scheme using top border paint and neon stripes. Bright awnings and umbrellas continue the theme."
I remembered the English judge's comment that other phones just did not look as cool as the iPadPhone. I recalled the pivotal moments in Steve Job's debut presentation for his recent products. The first thing he did was slip the Apple MacBook Air out of a sleeve to show you how sleek it was and the quality appearance. There was a similar presentation of the iPhone and the iPad.

All these thoughts spun around my head like a baby's mobile. Other comments note that there is no possibility in most of Apple's markets for purchasers to be confused about whether they were buying Apple, or not because of the strict Apple retail rules.

Just in case the court does not come to that conclusion, let's consider Apple and trade dress. Apple products have a simplicity, pureness and elegance for a number of reasons.

The first is that colourful icons and lack of buttons and screen widgets makes use intuitive. ('If the element is functional, protection should be sought under patent law.')

The second is that the very appearance gives an impression of high quality. ('To be nonfunctional, it cannot affect a product’s cost, quality, or a manufacturer’s ability to effectively compete in a non-reputational way. For example, color is functional in regard to clothing because that product is purchased substantially because of its color and appearance.")

Finally, trade dress is all about non-functional decoration as with the Mexican restaurants. The only non-functional decoration I see on an iPhone and iPad is the rounded corners. The rest of the proposition fits in the clothing exclusion in the description of trade dress principles. So, it seems to me that Apple are suing Samsung for making a phone that has 'simplicity, pureness, elegance' and a lack of non-functional decoration or ornamentation, SCO sued for the use by IBM of negative knowledge. Now Apple sue Samsung for negative decoration.

---
Regards
Ian Al
Software Patents: It's the disclosed functions in the patent, stupid!

[ Reply to This | # ]

Note to Judge Koh: Pics of the Samsung Epic Touch 4G With and Without the Google Search Box ~pj Updated
Authored by: Anonymous on Thursday, August 09 2012 @ 02:53 PM EDT
To me whether samsung copied or not apple's design is
irrelevant. For individual design elements, the prior art is
abundant. Even if you consider them all together there are
examples that are very close, like the lg prada. Most of the
dial buttons on phones are phones in green or with green
background. All end call buttons are red. This is usability
design 101.

As for trade dress, much of the design of the phones in
question is functional:

1) a rectangular product with four evenly rounded corners ->
Most of the phones are rectangular with rounded corners to
make them easy to hold in your hands and fit in a pocket.

2) a flat clear surface covering the front of the product;
Functional... display covers most of the phone surface and a
big display is functional. A curved cover over a lcd would
be difficult for the viewer

3) the appearance of a metallic bezel around the flat clear
surface; Ok, this one is aesthetics only AFAIK

4) a display screen under the clear surface; functional, see
2

5) a substantial back borders above and below the display
screen; FUNCTIONAL Hard buttons down close to your thumb and
speaker up close to your ear demand space at top and botton
of the phone

6) when the device is on, a row of small dots on the display
screen;

7) when the device is on, a matrix of colorful square icons;
When the samsung phones are on, the home screen is not just
a colorful matrix os square icons. It has widgets and icons.
Even if it were equal, this is functional. UI design 101
again. Colors helps us differentiate icons, matrix
arrangement helps us locate icons quickly. Icons can't be
too big or you are wasting space or to small or you'll have
trouble differentiating them. Size of the phone determines
how many rows and columns.

8) a bottom dock of colorful square icons. FUNCTIONAL
again... most common features like dial, contacts and
messages need to be available most of the time. Bottom close
to your thumb is the best place to place them.

The judge explained the task of the jurors related to trade
dress as being: “Apple’s trade dress infringement claim will
require you to resolve different issues. You will need to
determine whether Apple’s trade dress had acquired
distinctiveness before Samsung started selling its accused
products, and whether Samsung’s accused products are likely
to cause confusion about the source of Apple’s or Samsung’s
goods.". Even if we consider the trade dress valid (I don't
because most of it is functional) I'd answer yes to the
first question but no to the second one: Very distinct logos
(Have you ever seen an apple product without the apple?),
splash screens when booting with samsung and android
animations and sound, and store placement are enough to make
it extremely hard to mistake them.

[ Reply to This | # ]

Because Software dose not a Machine Make.
Authored by: BitOBear on Thursday, August 09 2012 @ 07:47 PM EDT
The thing the judge -should- be taking away from all this is that Software
doesn't make a Machine.

If I unbox a screw-gun I get the same thing every time.

If I unbox a smart phone I get whatever is on it, which is a feature set. Some
people have pointed out that the finial result of that unboxing may vary based
on what services and selections you have and make at the moment of unboxing.

Software is about the ever-mutable "now", and how that "now"
is intrpreted with respect to the inifinite "just before now".

We call these state machines. There is a state, and an input, and that nets a
new state. So now there is a state and an input, and that nets a new state. On
and on forever.

The operator and the operations are what allow for and indeed cause convergence.
I could make my linux box look very like my windows box if that's what I want to
converge.

So Apple has and interest in converging the smasung and apple phones, and
samsung has no such interest.

So we are, what? Amazed that one party deliberately or subconsciously converged
the appearance while another did not? No such amazement here.

So howdy judge, the correct ruling you should make is "this is clearly not
patent eligible since it's arbitrary and non/unfixed."

You might as well call a lump of clay to be in violation otherwise since it
-can- be configured to look and feel like an iPhone etc. User Interfaces on
"smart" devices are almost infinitely motile.

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Note to Judge Koh: Pics of the Samsung Epic Touch 4G With and Without the Google Search Box ~pj Updated
Authored by: Anonymous on Friday, August 10 2012 @ 09:42 AM EDT
Judge Koh has got to go. She is clueless and also completely
incapable of handling this case as can be seen since this
whole fiasco started.

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Testimony about Steve Jobs
Authored by: pem on Saturday, August 11 2012 @ 09:57 AM EDT
Teksler: "We were shocked" when Samsung introduced smartphones that Apple says are unfair copies. Jobs & Cook complained to Samsung..
Does this statement about the reaction Jobs had to the phone open the door for Samsung to be able to point out that Jobs was already prejudiced against Android and ready to go thermonuclear on it?

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