By Matt Macari and Nilay Patel
After over a year of drama, the patent battle between Apple and Samsung heads to trial in California today. While there’s no doubt both sides will do their best to present theatrical and emotional arguments, in the end the jury will be left with a defined set of intellectual property rights asserted against a specific list of devices — mostly variants of the Samsung Galaxy S, Galaxy S II, and the Galaxy Tab 10.1. (Remember that the Galaxy Nexus and Galaxy S III aren’t part of this trial — they’re part of another case between these two companies scheduled to go to trial sometime next year.)
All that may not be nearly as sensational as eight-sided iPhone prototypes and other glimpses into Apple and Samsung’s inner workings, but understanding what’s really at stake is the key to organizing the deluge of information we’ll see over the months ahead. So let’s review what Apple and Samsung are really fighting over, as well as the stories each company will try to tell. There’s a lot going on.
Sticky TOC engaged! Do not remove this!
Apple's case against Samsung
Apple’s told just one simple story in nearly every brief and official statement since the beginning of this lawsuit: Apple invested great resources into developing the iPhone and iPad, they’ve become the benchmark for competitors and consumers, and Samsung deliberately chose to copy Apple’s products and designs rather than fairly competing. If Apple has its way, the jury will hear this narrative so much it will seem like an established fact, and the details of the legal arguments will blur into an overall pattern of copying by Samsung. We’ve already seen Apple produce internal Samsung documents that allegedly show Samsung was obsessed with beating Apple. To counter, Samsung will obviously want to disprove Apple’s story, and show that it developed its products independently of what Apple was doing.
If Apple has its way the details of the legal argument will blur into an overall pattern of copying by Samsung
In terms of the legal details, Judge Lucy Koh hasn’t been shy about wanting Apple and Samsung to reduce the number of infringement allegations they’ve hurled back and forth during the course of the lawsuit — mostly to keep the length of the trial down and the jury reasonably sane. So while Apple started off in full assault mode with a colossal list of trademarks, trade dress registrations, design patents and technical utility patents in its complaint, everything has been trimmed back for trial: all of its trademark claims have been dismissed, only one registered and limited unregistered trade dress claims remain, and the patent infringement allegations have been reduced to four design patents and three utility patents.
That's a significant reduction, but it's far from svelte — especially considering both sides are only allotted 25 total hours to argue their respective cases. What Apple may have going for it, however, is the relative simplicity of its arguments. There’s nothing terribly technical or complex here.
Apple's design patent Claims
Apple’s design patents are about as simple as they get: two design patents on the iPhone, one on the iPad, and one on the general iOS icon layout. Each design patent presents the ornamental features of an invention in drawings; the solid lines are the patented elements. Remember that: the dashed lines in the drawings provide context, but aren’t part of what’s patented, and aren’t considered in determining whether a Samsung device infringes or not.
US Patent D618,677
The front speaker slot, uncluttered front face, display borders and the edge-to-edge glass of a smartphone.
US Patent D593,087
The home button, uncluttered front face, rounded corners and the front edge border of a smartphone.
Samsung's calling it "Apple's black rectangle problem"
Samsung will almost certainly argue that these patents are invalid for being too broad — we’ve heard the company use the phrase "Apple’s black rectangle problem" in the past few weeks. The pendulum will also swing far in the other direction: Samsung will argue that its products don’t infringe because they’re not exactly what’s in the drawings. This part of the case will involve the most legalistic discussion of design elements, and will almost certainly seem a bit silly compared to the more holistic discussion around trade dress.
Apple's trade dress claims
You’ve probably never heard of trade dress before, but you encounter it every day: it’s the elements of a product design that indicate it came from a certain brand or company. The classic example is the Coke bottle: the distinctive shape of the bottle is just as recognizable as the trademarked word "Coke" itself. (That's a vastly simplified explanation, but it's good enough for our purposes.) Trademarks and trade dress are all about protecting consumers from being deceived in the marketplace — the idea is to clearly indicate the source of a product or service.
trade dress might be easier for Apple to argue than design patents
That means the trade dress case will likely be much easier for Apple to make than the design patent case. Apple's relying on one federal trade dress registration on the iPhone, US 3,470,983, which covers the front face and distinctive grid of icons on the homescreen, as well as other unregistered claims relating to the iPhone and the iPad. With trade dress, Apple can focus more on the general characteristics of the iPhone and iPad's appearance and whether a meaningful number of consumers are confused by Samsung's products before and after they’re sold. And some evidence offered so far suggests that consumers are indeed confused.
According to Apple's trial brief, it plans on presenting evidence of media comparisons between Samsung and Apple products, as well as actual consumer confusion to support its claims. We've already seen a part of this story in court documents revealing Best Buy customers returned the Galaxy Tab because "the customer thought it was an Apple iPad2 [sic]." That's far from conclusive, but it’s a piece of Apple’s bigger narrative intended to color Samsung as a wrongdoer and its products as copies — a theme Apple will try to keep in front of the jury at every turn.
Apple's utility patent claims
Apple’s case also goes beyond the design of Samsung’s products — it includes a number of utility patents that cover functionality as well. Unlike design patents, the pictures don't mean a whole lot; the real substance is all in the often opaque and dry patent claims.
Apple's feature patents are fairly easy to understand and relatively straightforward
Apple has three remaining utility patents heading into trial, all of which cover interface elements. Narrowing it down to these three was no accident on Apple’s part: these patents and what they cover are fairly easy to understand and relatively straightforward, making them much more accessible to the jury. That said, we’ll still have to endure some extremely technical arguments about how each of these elements actually works.
US Patent 7,469,381
This is the famous iOS "scrollback" or "rubberbanding" patent, where a background texture is displayed when you scroll beyond the edge of a document or webpage. We’ve covered how Android manufacturers are designing around this one in depth.
US Patent 7,844,915
Determining when a user is using one finger to scroll versus two or more fingers to zoom.
US Patent 7,864,163
Gesturing (tapping) to zoom on a screen area with multiple content areas displayed.
This part of the case will likely turn on how well Apple can keep the focus on the overall interface elements claimed and not the specific technical implementation — if it gets into a battle of competing technical experts testifying about minute implementation differences, the jury will likely stop paying attention. On the other hand, Samsung will first try to prove all of these patents are invalid, and then dig deep into the implementations to show that its products don’t infringe anyway.
Allegedly infringing Samsung products
Apple’s case loses some of its tight simplicity when it comes to the specific Samsung products involved. While Apple was willing to reduce the number of patents and other claims in the case, it's still going after nearly every Samsung product it can. That may appear to be a solid plan, buttressed with redundancy, but when you're pressed for time at trial and the attention of the jurors, it can be a back breaker. Apple has the burden of proving infringement for every single Samsung product in its lawsuit, which at last count was around 25 — including the Galaxy S, S II, Epic 4G, Captivate, Vibrant, Infuse 4G, Droid Charge, and the Galaxy Tab 10.1.
Apple’s logistical challenge is almost unimaginable
The logistical challenge of comparing each product and its applicable Android / TouchWiz OS version against every patent and trade dress claim is almost unimaginable. Apple has asked the court for permission to divide Samsung’s products into representative groups to simplify its argument, but it's unclear if that will be allowed and exactly how many of those groups will be created. With just 25 hours of argument scheduled, it's odd for Apple to risk getting bogged down in granular details instead of keeping the jury locked into its bigger narrative, but we’ll see how the lawyers plan to handle it.
It’s also worth remembering that while the court denied most of Apple’s preliminary injunction requests back in December, it did ultimately hold that the ‘677 and ‘889 design patents, as well as the ‘381 utility patent, were likely valid and infringed — implicating potential problems for the Galaxy S, Infuse, Droid Charge and the Tab 10.1 (which is currently subjected to a ban in the US). That decision doesn’t guide the jury at trial, but Samsung needs to do a better job of convincing the jury on the issues of non-infringement and invalidity than it did Judge Koh.
Apple's damages claim
Calculating damages in a patent case can be just as complicated as the technical arguments involved. Happily, there’s no real need to break down the nuances and alternate theories presented by Apple — we just need to generally understand the numbers. In addition to financial damages linked to the sales of the accused Samsung products, Apple is asking for its own lost profits of $500 million and a $2 billion disgorgement of Samsung’s wrongful profits associated with any infringement. All in all, Apple’s total monetary demand is $2.525 billion. Yes, billion. And if the jury finds that Samsung’s infringement was willful — e.g., with actual knowledge and bad intent — the total damage award could be as much as tripled by the judge at the end of the trial. That’s some real money, even for these two companies.
All in all, Apple wants $2.525 billion
Obviously, Samsung’s first retort is that it doesn’t infringe any valid and enforceable patent in the case. But it had to come up with its own numbers in case infringement is found, and it estimates that Apple would be entitled to much less. Samsung says Apple isn’t entitled to any lost profits or disgorgement money, emphasizing that "damages are meant to compensate, not confer an absurd windfall at the expense of competition and consumers worldwide." Apple has indicated that Samsung proposes a mere $28,452 in compensation for infringement. Yes, thousand.
Chances are the actual monetary award won’t be near either of these estimates if infringement is found and damages are required. They both seem insanely skewed toward opposite ends of the spectrum.
Samsung's case against Apple
Samsung has to keep the focus away from the FRAND controversy
As you might guess, Samsung’s most important task is to get the jury away from Apple’s narrative. In order to do that, it has to tell its own story — one that makes Samsung seem equally if not more inventive than Apple, while making Apple seem anticompetitive for using patents to block Samsung’s products rather than fairly competing in the market.
That story won’t necessarily be hard to tell. Samsung spends billions on research and development, and it owns thousands of patents, some of which cover elements of standardized technologies like 3G cellular networking. According to its trial brief, Samsung will argue that Apple is a relatively new player in the mobile market that’s using decades of Samsung research without paying for it — or entering into industry-standard cross-licensing agreements. Samsung will also try to show that Apple wasn’t inventing from scratch, getting inspiration from industry veterans like Sony along the way.
What’s more, Samsung can point to its 20-year history in selling mobile devices to demonstrate that it was independently developing products similar to the iPhone before Apple entered the market. That may be a bit of a tough sale, but it’ll really depend on how believable the connection is between what Samsung was doing, or preparing to do, before the iPhone hit the market in 2007.
Two of the five patents Samsung’s asserted against Apple cover parts of the 3G wireless mobile standard, which involves what has now become an international controversy: the use of standards-related patents in litigation. Standards patents are required to be licensed under fair, reasonable, and non-discriminatory (FRAND) terms, and the use of FRAND patents in litigation is currently being investigated by the US FTC and the EU. Samsung has to keep focus away from all this controversy during the trial — Apple will try to convince the jury Samsung isn’t playing fair.
Samsung’s standard-essential patent Claims
Samsung’s use of standards-related patents is going to be a major issue at trial: Apple’s going to argue that Samsung illegally hindered competition and acquired monopoly power through "standard-setting deceit" — the use of its standards-related patents to squeeze unfair rates from competitors.
It’s not that important for our purposes to examine the technical aspects of these standards patents — just know that they relate to 3G wireless networking:
According to Apple, Samsung wants $14.40 per iPhone or iPad sold
Since these patents are "essential" to 3G, there really isn’t much of a debate over whether the iPhone and iPad infringe. The issue is that Samsung claims that it extended a reasonable offer to Apple, and Apple disagrees. Apple argues that Samsung’s demand of 2.4 percent on the "entire selling price" of the iPhone and iPad is "unfair, unreasonable, and discriminatory," going on to claim that Samsung "has never sought or received a 2.4 percent FRAND royalty from any licensee, and indeed cannot even explain where that number came from." According to Apple, Samsung wants $14.40 per iPhone or iPad sold, or more than Apple pays for the entire wireless baseband chipset it uses in those devices. Interestingly, Samsung’s trial brief doesn’t give any real details on what dollar values or percentages it requested from Apple.
It’s in Samsung’s best interest to remind the jury that it’s been participating in standards organizations for decades without issues like these, and that the larger controversy around FRAND patents doesn’t excuse Apple’s use of Samsung’s technology without paying for it. We’ll see how that plays out during trial.
Samsung’s utility patent CLAIMS
The other three Samsung patents in the case involve technology more understandable to humans: things like emailing photos from a camera phone, multitasking with music playing in the background, and switching between a live camera shot and a photo gallery.
US Patent 7,577,460
Covers a method of transmitting emails, with and without embedded images, from a mobile phone with a built-in camera.
US Patent 7,456,893
Covers switching between photo and image display modes. When the user switches back to display mode the most recent image viewed before the mode switch is shown (e.g., rather than the photo taken).
US Patent 7,698,711
Covers selecting an "MP3 mode" on a mobile device and playing music in the background while performing other multi-tasking functions, with the display continuing to indicate that music is being played in the background.
Samsung’s arguments here will look a lot like Apple’s — it’ll try to keep the jury looking at the broad strokes of these patents, while Apple will claim they’re invalid and then focus on specific technical differences in implementations to say they’re not being infringed anyway.
Unlike Apple, Samsung can keep the jury focused on just two devices
Photo by blakespot
Allegedly infringing Apple products
As you might guess, Samsung’s list of accused Apple devices is much smaller: every iPhone and iPad. That gives Samsung a distinct logistical advantage: where Apple will be juggling evidence for around two dozen allegedly infringing products, Samsung can keep the jury focused on two iOS devices which most jurors will be familiar with.
What to expect at trial
Apple has a simple story, but a complicated case
With so much at stake, and so many issues on the table, there’s no doubt this is going to be a crazy, whirlwind trial. But confusion and mental fatigue may be Samsung’s ally: as the primary plaintiff, Apple carries the substantial burden of proving each element of each of its infringement claims — and we’ve seen just how many claims and accused devices it’s committed to pursuing. Apple has a simple story, but a complicated case.
Samsung will almost certainly try to force Apple into getting bogged down in technical nuances and product details to kill momentum and dilute Cupertino’s otherwise simple narrative. Again, this may be exacerbated by the 25-hour testimony limitation imposed on both sides. On the other hand, juries can be rather unpredictable and Samsung risks looking like it’s trying to spin its way out of trouble by obfuscating the real issues — especially when it’s fair to assume that at least some of the jurors will come into this with a preconceived appreciation for Apple and its successes. (You can bet Samsung will ask potential jurors what kind of phones they have at jury selection.) It’ll be a difficult balancing act for both Samsung and Apple.
Putting Ive on the stand probably doesn’t seem like a great idea to Samsung’s lawyers
Apple’s Scott Forstall, Phil Schiller, Greg Joswiak, Samsung’s US president Dale Sohn
You can also expect to see some major names from both Samsung and Apple take the witness stand over the course of the trial. While neither Tim Cook or Jony Ive are expected to testify at this stage, the list does include Apple’s Scott Forstall, Phil Schiller, and Greg Joswiak, as well as Samsung’s US president Dale Sohn. We’ll see if that changes, but for now Apple isn’t about to expose its key executives to the witness stand unless it’s absolutely necessary, and Samsung likely doesn’t want to give Apple the chance to make itself even more appealing to the jurors. Putting Ive on the stand to talk about how he and Steve Jobs developed the iPhone and iPad probably doesn’t seem like a great idea to Samsung’s lawyers.
Of course, there’s also the chance that Apple and Samsung will both finally come to their senses and settle this case before the jury ever gets a chance to deliberate. We’ll be live from the courtroom every day until there’s a verdict or a settlement, so stay tuned.