decoration decoration
Stories

GROKLAW
When you want to know more...
decoration
For layout only
Home
Archives
Site Map
Search
About Groklaw
Awards
Legal Research
Timelines
ApplevSamsung
ApplevSamsung p.2
ArchiveExplorer
Autozone
Bilski
Cases
Cast: Lawyers
Comes v. MS
Contracts/Documents
Courts
DRM
Gordon v MS
GPL
Grokdoc
HTML How To
IPI v RH
IV v. Google
Legal Docs
Lodsys
MS Litigations
MSvB&N
News Picks
Novell v. MS
Novell-MS Deal
ODF/OOXML
OOXML Appeals
OraclevGoogle
Patents
ProjectMonterey
Psystar
Quote Database
Red Hat v SCO
Salus Book
SCEA v Hotz
SCO Appeals
SCO Bankruptcy
SCO Financials
SCO Overview
SCO v IBM
SCO v Novell
SCO:Soup2Nuts
SCOsource
Sean Daly
Software Patents
Switch to Linux
Transcripts
Unix Books
Your contributions keep Groklaw going.
To donate to Groklaw 2.0:

Groklaw Gear

Click here to send an email to the editor of this weblog.


Contact PJ

Click here to email PJ. You won't find me on Facebook Donate Paypal


User Functions

Username:

Password:

Don't have an account yet? Sign up as a New User

No Legal Advice

The information on Groklaw is not intended to constitute legal advice. While Mark is a lawyer and he has asked other lawyers and law students to contribute articles, all of these articles are offered to help educate, not to provide specific legal advice. They are not your lawyers.

Here's Groklaw's comments policy.


What's New

STORIES
No new stories

COMMENTS last 48 hrs
No new comments


Sponsors

Hosting:
hosted by ibiblio

On servers donated to ibiblio by AMD.

Webmaster
PJ A scorched earth approach by Samsung. | 311 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Please post Corrections in this thread
Authored by: nsomos on Sunday, August 05 2012 @ 11:16 PM EDT
A summary in posts title may be helpful.
Before suggesting a correction to any brief or transcript,
please check against the PDF, as errors in the original source
are not to be corrected here.

Thnk U -> Thank You

[ Reply to This | # ]

Trade Dress idiocy
Authored by: Anonymous on Sunday, August 05 2012 @ 11:22 PM EDT
I have a Kindle DX and people see me reading it and ask if it's a iPad, or ask
me how I like my iPad.

the Kindle looks vastly different than the iPad, but some people assume that any
tablet is an iPad.

I sure hope that the fact that there are people stupid enough to think this
doesn't mean that all tablets infringe on the iPad "Trade Dress"

does anyone really think that the following picture could be confused with an
iPad by anyone who knows anything about an iPad?

http://www.google.com/imgres?imgurl=http://reviews.cnet.com/i/bto/20090506/Kindl
e_DX_horizontal.JPG&imgrefurl=http://reviews.cnet.com/8301-18438_7-10235053-
82.html&h=361&w=540&sz=195&tbnid=9hXmBjtTrHSGNM:&tbnh=90&
;tbnw=135&zoom=1&usg=__zHzBIsid_lwiwPP7Fopw25NK9JU=&docid=fWlhZ9RdrC
hleM&sa=X&ei=MzgfULCuBcHuigKpgIGgDg&ved=0CG4Q9QEwBA&dur=5835

[ Reply to This | # ]

Off Topic thread
Authored by: Tufty on Sunday, August 05 2012 @ 11:31 PM EDT
Off tropic too

---
Linux powered squirrel.

[ Reply to This | # ]

News Picks
Authored by: Tufty on Sunday, August 05 2012 @ 11:32 PM EDT
When will the first news of Curiosity break or will Curiosity break?

---
Linux powered squirrel.

[ Reply to This | # ]

Corrupt and dishonest judges
Authored by: Anonymous on Monday, August 06 2012 @ 12:02 AM EDT
"There are a lot of variables, including the inclinations of a
judge."

Judges claim vehemently that they rule on the law and the law alone. If what
you say above is true, then they are either self-deluded or liars, or both.
Either way, it is not good for the law.

I would much prefer a judge that knew she could be swayed emotionally than the
corrupt fools we currently have on the bench that think they are immune.

[ Reply to This | # ]

Isn't it obvious...
Authored by: Anonymous on Monday, August 06 2012 @ 01:40 AM EDT
The correct response is to issue an injunction for Apple against Samsung for its
claims and an injunction for Samsung against Apple for the counterclaims. No
Galaxy... No Iphone... everyone loses!

[ Reply to This | # ]

hidden barriers/prejudices and late filings
Authored by: reiisi on Monday, August 06 2012 @ 01:41 AM EDT
PJ quotes this in Apple's filings:

"Samsung's position is based on self-serving, hypothetical testimony from
its own engineers, as translated by Samsung's in-house litigation
attorneys."

It occurs to me that Samsung is fighting the language/culture barrier in
addition while trying to fight Apple. That will create a delay in turnaround
between management and counsel on important decisions like where to use what
evidence.

That said, even if there were no such barrier, if suits always proceeded
according to choreography, there would indeed be no point. Evidence is evidence,
whether it's late or not. Unless there is reason for the judge to believe the
late party is deliberately engaging in ambush tactics, there should be a bit of
leniency.

[ Reply to This | # ]

How can anyone be confused?
Authored by: Anonymous on Monday, August 06 2012 @ 02:47 AM EDT
From Apple:-
Likely confusion can occur before a purchase, at the moment of the purchase ("point of sale"), or "post-sale," such as when a consumer sees somebody using a Galaxy Tab 10.1 in a cafe and wrongly assumes that person is using an iPad. Apple relies on both point-of-sale and post-sale confusion.

Prior to sale, you will be looking at ads, brochures, and so on. iPad material will have the Apple logo all over it. Galaxy Tab material will have Samsung's logo all over it. Confusion is impossible.

At the point of sale, again, logos will destroy any confusion. Is the sales assistant going to plonk down a Galaxy Tab instead of an iPad and you are not going to realise until you get home?

Post sale is an interesting one. There are 6 scenarios.

Scenario 1. You see someone in a cafe using a Galaxy Tab and think "That's a Galaxy Tab - I'll buy one." No confusion.

Scenario 2. You see someone in a cafe using a Galaxy Tab and think "That's an iPad - I'll buy one." You buy an iPad and decide it is rubbish. Is it Samsung's fault they set the bar too high for Apple to reach? Would you have felt better if you had seen an iPad in the cafe?

Scenario 3. You see someone in a cafe using a Galaxy Tab and think "That's an iPad - I'll buy one." You buy an iPad and decide it is brilliant. A win for Apple. What are they complaining about?

Scenario 4. You see someone in a cafe using an iPad and think "That's an iPad - I'll buy one." No confusion.

Scenario 5. You see someone in a cafe using an iPad and think "That's a Galaxy Tab - I'll buy one." You buy a Galaxy Tab and decide it is rubbish. Well, Apple set the bar pretty high and Samsung couldn't reach it. Good for Apple, but you are not going to blame the iPad for being rubbish if you bought the Galaxy Tab.

Scenario 6. You see someone in a cafe using an iPad and think "That's a Galaxy Tab - I'll buy one." You buy a Galaxy Tab and decide it is brilliant. Confusion, but the only way it can be a problem for Apple is if the Galaxy Tab is a good product. Otherwise, we are back at Scenario 5.

There are so many makes of tablet around now, no one is going to notice the rectangular shape with rounded corners and assume an iPad. The train left that station long ago. It is like seeing someone with a device with a hinged screen and keyboard and deciding that it is a Dell laptop rather than another brand.

[ Reply to This | # ]

playing interference...
Authored by: Anonymous on Monday, August 06 2012 @ 02:53 AM EDT
Is it possible that a seperate entity could step in and present the
evidence to the judge? My Motorola Droid (yes, the first one, and I'm
still having a blast with it) has rounded corners (at least, I haven't cut or
stabbed myself on them)... this is just ludicrous.

[ Reply to This | # ]

A Trick For Understanding Trials - Apple's Trial Brief as text, and Trade Dress ~pj
Authored by: Anonymous on Monday, August 06 2012 @ 04:18 AM EDT
Why go on and on about ad campaigns and how much money they spend on it? It may be interesting. But what does it prove? Why should the jury hear about that? Why does the lawyer ask about ad campaigns in a trial about patents, design patents, and trade dress?
...
I told you when we posted Samsung's trial brief as text that parties file their trial briefs just as the trial is about to begin, and it has the purpose of letting the judge know what each side plans to present, what it hopes to prove, and what the contested legal issues are likely to be.
Does the Jury get a copy of the trial briefs so that they can understand why all these apparently irrelevant questions are asked?

Or is this what the opening statements are for - to let the Jury know what is going to be proved, etc, ie [a summary of] the trial briefs?

[ Reply to This | # ]

Is the informed user the yardstick?
Authored by: Anonymous on Monday, August 06 2012 @ 08:49 AM EDT
In the recent UK judgement
(http://www.judiciary.gov.uk/Resources/JCO/Documents/Judgments/samsung-apple.pdf
), the UK judge, while concluding that the Samsung product wasn't as cool as
Apple's, considered whether an **informed user** could confuse the two. I
haven't seen any mention about that in the present case.

[ Reply to This | # ]

Samsung in Trouble...!
Authored by: Anonymous on Monday, August 06 2012 @ 08:52 AM EDT
This isn't good under any measure...not good at all.

Samsung has almost 80% of its requests denied while Apple has at least 80% of its requests accepted.

I now see why Samsung's attorneys did what they did. Whether it will help, I really doubt.

[ Reply to This | # ]

Apple is a US company - Samsung isn't
Authored by: Anonymous on Monday, August 06 2012 @ 08:55 AM EDT
This is 21st century trade protectionism in action. The injunctions and
sanctions that the court is so desperately eager to award to Apple are just
tariffs and quotas pretending to be something else.

[ Reply to This | # ]

Post-sale confusion
Authored by: hardmath on Monday, August 06 2012 @ 10:19 AM EDT
If one of the factors for the jury to consider is post-sale
confusion by "ordinary observers", do we not have to ask a
couple of questions about the underlying principle?

1. Is this evidence of Apple being harmed or helped?
Suppose someone sees me peering at my Android phone and
(being only an "ordinary observer") says to themselves that
it must be an "iPhone" (because Apple's brand prominence is
so much greater than any specific Android brand). Does this
hurt Apple somehow? Or does it in fact benefit Apple by
(falsely) reinforcing their branding?

2. If the basis for confusion as to the brand of phone is
due primarily to Apple's marketing success, is Samsung (or
Motorola/Google, etc.) liable because of the confusion? If
Apple has received a "design patent" for a product, but that
product itself never had recognition except as to naming, is
there protection for something more than the naming?

I believe marketing studies would easily show the iPhone
name is better known than the product, and that "ordinary
observers" are confused as to distinguishing iPhones, iPads,
and iPods. Are we harming Apple by the confusion that
arises from their own branding strategy?

iNquiring iMinds want to know...


---
Hate the math. Don't hate the mathematician!

[ Reply to This | # ]

Solving the confusion
Authored by: Anonymous on Monday, August 06 2012 @ 10:27 AM EDT
Samsung could put a leaflet inside the box so that when the consumer opens the
box they can read the following:

"Thank you for buying a SAMSUNG product.

We'd like to take the time to make sure that you are aware that this product is
NOT an APPLE product and therefore it is NOT an iPad/iPhone/iWhatever.

If you purchased this product thinking it was an APPLE iPad/iPhone/iWhatever
then you are an idiot and your demonstrated lack of intelligence means that we'd
like to ask you to return this product back to the place of purchase and ask for
a refund.

If you purchased this product knowing that it is not an APPLE
iPad/iPhone/iWhatever then you have adequately proven to us that you are not an
idiot and we hope you enjoy using our product."

j

[ Reply to This | # ]

Samsung's lawyers
Authored by: Anonymous on Monday, August 06 2012 @ 10:28 AM EDT
It looks to me like Samsung's lawyers aren't exactly covering themselves in
glory here.

If you fight hard and lose the case on its merits, well - that's just how the
game goes sometimes. But to lose a case because you weren't allowed to put your
best evidence into the record - to me that looks like a failure of lawyering.

[ Reply to This | # ]

Clicks vs Sixshooters helpful
Authored by: cbc on Monday, August 06 2012 @ 10:33 AM EDT
I found the C licks vs Sixshooters decicion helpful in understanding "protectable trade dress" and "confusion" issues. Also noted that it is a Ninth Circuit decision.

[ Reply to This | # ]

A Trick For Understanding Trials - Apple's Trial Brief as text, and Trade Dress ~pj
Authored by: Anonymous on Monday, August 06 2012 @ 01:08 PM EDT
This whole entire thing is utterly ridiculous to me about confusion. Can anyone
actually buy a new Samsung or iPhone product and not see the logo/company OEM
information when it boots? Do any retailers actually misrepresent the devices
from one OEM as devices from the other? My Samsung devices clearly display the
company logo (the Galaxy Tab has the logo on the back in fairly large letters
and the logo comes up every time it boots, as do my phones). Can a stupid
individual be confused by looking at a photo of each device? I'm not, but I
don't put anything beyond terminally ignorant people. Yet, how does that
translate into a confused purchase and profit for a competitor? Are there really
phone stores selling Samsung phones as iPhones?

[ Reply to This | # ]

PJ A scorched earth approach by Samsung.
Authored by: Anonymous on Monday, August 06 2012 @ 01:18 PM EDT
Much of what has been said here, is what concerns me about
this trial and the reason why I wrote a post of what
Samsung's scorched earth appeal approach is.

Last I looked no one replied to that trhread, probably
because I posted when interest waned. But I would really
like to know. What is the approach if Samsung has to decide
it needs to get some of these rulings in front of the
appeals court right now. Interlocutory appeals/writs of
mandameus/etc what is the procedure.

Also what is the procedure for getting a judge recuded for
bias?

----------------------------------------------------
MouseTheLuckyDog who cannot gfet a groklaw account :(

[ Reply to This | # ]

How will SCOTUS rule on these "design pattents".
Authored by: Anonymous on Monday, August 06 2012 @ 01:28 PM EDT
Since the CAFC hasn't met a patent it doesn't like, we know
how they well rule.

What do you expect SCOTUS to rule on "recvtangular with
rounded corners and ? ( And if the CAFC upholds these
patents, I'm fairly sure that they will grant certiorari. In
view of Bilski, Mayo and the remand of Myriad?

Apple's strategy may simple be to get out as much as they can
now before they get ridiculed in the SCOTUS oral arguments.

[ Reply to This | # ]

A Trick For Understanding Trials
Authored by: Anonymous on Monday, August 06 2012 @ 03:06 PM EDT
Simple three step method for understanding trials, no matter what they are:

#1 - The system is corrupt
#2 - The judges are corrupt
#3 - The lawyers are scum

Nothing I've read on this site since 2003 has done anything but reinforce these
beliefs.

[ Reply to This | # ]

Before and After IPAD
Authored by: Anonymous on Monday, August 06 2012 @ 03:41 PM EDT
Who's following who? Apples evidence pictures of before and after i-pad could be
interpreted as Apple copied Samsung. The progression from Apple's Newton to
Apple's i-pad is nearly the same progression as the whole industries.

[ Reply to This | # ]

  • History... - Authored by: Jamis on Monday, August 06 2012 @ 07:31 PM EDT
    • History... - Authored by: Anonymous on Monday, August 06 2012 @ 08:06 PM EDT
    • History... - Authored by: Jamis on Monday, August 06 2012 @ 08:55 PM EDT
      • In the US Yup - Authored by: Anonymous on Tuesday, August 07 2012 @ 10:18 AM EDT
A Trick For Understanding Trials - Apple's Trial Brief as text, and Trade Dress ~pj
Authored by: Anonymous on Monday, August 06 2012 @ 09:03 PM EDT
I wonder if this quote
Likely confusion can occur before a purchase, at the moment of the purchase ("point of sale"), or "post- sale," such as when a consumer sees somebody using a Galaxy Tab 10.1 in a cafe and wrongly assumes that person is using an iPad. Apple relies on both point-of-sale and post-sale confusion.
says it all? Not that Apple is afraid that people will buy a Galaxy instead of an iPad, but that they'll buy an iPad after seeing all the things that the other person was doing on the Galaxy, and realize that they got screwed. Have a great day:) Patrick.

[ Reply to This | # ]

One more thing
Authored by: Anonymous on Monday, August 06 2012 @ 10:38 PM EDT
You can let others use it, but you have to license it to them if you don't want
to lose it for being generic.

[ Reply to This | # ]

Apple Builds a Bar and Microsoft, Google, and Samsung Walk in
Authored by: Anonymous on Tuesday, August 07 2012 @ 12:49 AM EDT

Let me suggest that Apple's approach is motivated by the mid-80s when their platform partner suddenly had a me-too product. That partner was Microsoft who was invited to write applications for the Mac while it was an unreleased project. Apple sued Microsoft, but lost badly when the court said look-and-feel is not protected by copyright.

Fast forward twenty-three years and Steve Jobs introduces the iPhone that puts a good browser on a big-screen one-button phone whose apps are controlled (and updated) by Apple, not the carriers. "And, it's patented." he proclaimed at that MacWorld keynote. And then, within 36 months two partners go into competition, one having revamped its phone os interface to be iPhone rather than Blackberry-esque. The other, proud of its ability to get a phone designed and manufactured in 6 months.

Thus the acrimony usually found in divorces. We know Apple is moving Google out of the featured slots on iOS and OS X. Are they looking to find or build up alternatives to Samsung?

On a side note, I've heard two generally pro-Apple, but independent, journalist say there's a memo from Google to Samsung warning it of a too similar design and there's another item where a big reason for returns at retail of a Samsung tablet was "It wasn't an iPad." Obviously this is a rumor being propagated by some anonymous guy and hardly any thing close to evidence. I suppose if it was going to be presented to the jury, it'd be in a trial brief.

As a satisfied Apple customer, this competition by litigation and Apple's way of taking things personally is embarrassing. That said, the company takes risks in putting out products that redefine our relationship with computing and loses it when it sees knock-offs. As I said, embarrassed but understanding.

[ Reply to This | # ]

If Apple wins soon you may only have no choice for cell phones.
Authored by: Anonymous on Tuesday, August 07 2012 @ 03:57 AM EDT
Look at the chart associated with this article:

http://news.yahoo.com/apple-swallowed-77-mobile-industry-profits-q2-005049394.ht
ml

Apple currently takes 77% of all cell phone profits, and Samsung most of the
remainder. If Samsung is removed then Apple will be taking something like 95%
of ALL profits in the mobile industry. Talk about being a monopoly and the
ability to price gouge! Do consumers win??

[ Reply to This | # ]

Oops - A Trick For Understanding Trials - Apple's Trial Brief as text, and Trade Dress ~pj
Authored by: Anonymous on Tuesday, August 07 2012 @ 07:21 AM EDT
Watching a commercial. Shows people taking pictures, sharing among large
number of people, sharing gps info, and so on. There is no clear
identification of the device being used. Thought to myself, what is that? An
iPhone commercial. At the end, it identifies it as a Samsun Galixy. Oops...

While I think that a patent on a rectangular phone with rounded corners is very
stupid, airing commercials where you don't make it clear at the very beginning
that this is the Android phone, instead of these "upscale"
commercials, (could almost have been advertising American Express advertisement
for example), is under the circumstances, a foolish thing to do.

[ Reply to This | # ]

A Trick For Understanding Trials - Apple's Trial Brief as text, and Trade Dress ~pj
Authored by: Anonymous on Tuesday, August 07 2012 @ 01:41 PM EDT
I've had to deal with outrageous accusations made in court filings, where, if
the defendant is lucky, a judge might, emphasize *might*, grant a motion to
strike the most unsubstantiated, heinous accusations. YouTube, Twitter,
Facebook, while they are indeed private companies, they are not court rooms, not
legal arenas.
To accuse or even hint, in these days and times, that an individual has engaged
in any violation of civil and/or criminal law, there needs to be a redress with
teeth, a strong penalty to false accusations. Corporations take it very
seriously when corp. reputation takes an unfair hit because of false
accusations.
Somehow, after who knows how much of the total readership of these sites has
seen a public accusation of IP theft or misappropriation by an individual, a
simple "oops, we made a mistake" just doesn't cover it.
The more these companies insist on people using their real names and identities,
the more serious should be the repercussions for making false accusations
against real people. Of course, in a day when companies such as Microsoft can
sandbag shareholders by earmarking legal slush funds of billions of dollars (M$
at $4.1 billion two years ago, all just for paying legal fines and fees), fines
mean next to nothing.

[ Reply to This | # ]

Wow! Samsung is the evil copyist after all.
Authored by: Anonymous on Wednesday, August 08 2012 @ 07:04 AM EDT
132-page document shows full extent of iPhone's influence on Samsung
interface design.

http://www.theverge.com/2012/8/8/3227289/samsung-apple-ux-ui-
interface-improvement#add-comment.

Word-for-word. Samsung copied Apple's iPhone design.

[ Reply to This | # ]

  • Careful - Authored by: Anonymous on Wednesday, August 08 2012 @ 08:51 AM EDT
About those photos...
Authored by: Anonymous on Wednesday, August 08 2012 @ 09:30 AM EDT
I notice one thing that I would think would sink Apple's claims.

Every Samsung phone has "Samsung" in big letters on the front and
back.

The iPhone has nothing on the front and the Apple logo on the back.

How can the two be confused? How can stamping your company name on a product to
distinguish it from other products dilute trade dress?

[ Reply to This | # ]

Groklaw © Copyright 2003-2013 Pamela Jones.
All trademarks and copyrights on this page are owned by their respective owners.
Comments are owned by the individual posters.

PJ's articles are licensed under a Creative Commons License. ( Details )