- 05-26-2011, 08:56 PM #2
- 05-26-2011, 09:27 PM #3
- 05-26-2011, 11:32 PM #4
- 05-26-2011, 11:44 PM #5
In this case it won't be a big deal. Apple won't have time to alter whatever products it plans to release this fall (next iPhone, possibly some sort of iPad refresh or product line expansion) and the Samsung products in questions are shipping soon. It's just to let Apple decide whether they want to put them on the lawsuits injunction.
To be honest, Apple should have a weak case hear, although possibly some of the icons used for apps (like the call icon) on Touchwiz are too similar to iOS. Either way we shouldn't be looking at a serious stoppage of Samsung products, even if Apple does get to take a peak early.
Really, Apple can argue till they're blue in the face, but they didn't invent the idea of a touch UI, and they certainly didn't invent the idea of clicking on icons to launch applications. Tablets were out (if not terribly popular) for literally years before the iPad. They are making a difficult case, and it's mostly just because they realize they are losing.
Patent trolls aren't just tiny companies it turns out.
- 05-27-2011, 12:05 AM #6
Here's Nilay Patel's analysis of it:
And a choice quote that sums up why Samsung is screwed:
So that’s the rundown — the sixteen specific claims Apple’s making against Samsung, as well as what it’s asking the court to do. Taken as a group, it feels like a remarkably solid case — Samsung can’t just up and countersue Apple with its own patents and hope to walk away with a handshake and a cross-license because of the various trademark, trade dress, and design patent claims. How the company decides to deal with those issues remains to be seen; there’s no question in my mind that Samsung designed TouchWiz to look and feel as much like iOS as possible, and then marketed it as such. (More than one of my friends has come back from a Verizon store with a Fascinate having been told that it’s “basically the same as an iPhone.”)
- 05-27-2011, 01:38 AM #7
- 394 Posts
I'll admit, I did wonder from the first time I saw touchwiz on Android it looked a little like an iPhone, what with its side-scrolling apps. It was a little disappointing, because Samsung has the ability to make much better devices than the iPhone, if they just would. They have to start by differentiating, rather than copying their competition. I like Samsung more than Apple, but I do hope they start to create a new image, mimicking the iPhone only continues to reinforce its market dominance, rather than pushing it to the side with something better.
Honestly though, I don't see how Apple could get much more than a large fine payment from Samsung, if that. I understand that a company's image and "brand experience" is valuable intellectual property, but it is very difficult to say exactly when someone is simply making a similar competing product, and when they're actually stealing intellectual property. The fact is, most Android phones on the market are sleek black rectangles made mostly of screen, with colorful icons, advanced multimedia capabilities, and a touch UI. However, they are in no way mimicking Apple, they are making a competing product that is similar by nature, just as a Toyota Camry is similar to a Honda Accord.
Again, I agree that Samsung has gone over the line, but its still very hard to legally define that line in order to extract punitive damages. And I can't imagine Apple seriously thinks they can get an injunction. After all, Samsung is their main hardware provider, and designs the SoC's that run iOS. If Apple were to successfully hurt Samsung's mobile business, Sammy could simply refuse to deliver any more product to Apple while defending all their patents and past agreements, forcing Apple to not only find another provider, but also force them to use a different SoC design. This would take quite a long time for them to do, especially to develop the level of "smoothness" and efficiency they seem to promote and in any significant volume. I realize that this would ultimately hurt Samsung as well, considering they surely make a good bit of profit from Apple's hardware needs. Yet they could effectively prevent Apple from being able to bring any new iDevices to market for a year or more, including the upcoming iPhone5, and could likely create massive shortages of the iPhone4. This would surely hurt Apple tremendously in the short term.
Again, I don't see it as a likely possibility, but I would definitely expect Samsung to play their trump card if Apple actually does win a trade injunction, so the mere threat of this would likely be enough to scare Apple off from pushing for such a result. I just hope Samsung has the guts to stand up to them if it comes to that.
- 05-27-2011, 02:13 AM #8
One word. Ridiculous. Just read the article. I've used a Fascinate and didn't come away from the experience saying "its basically iOS" whoever said this is frakking clueless and hasn't used an iPhone. Touchwiz is no where near the polish of iOS. Totally different look and feel. I'm sorry but anybody that feels that touchwiz is basically iOS is legally blind.
Dear Apple, your insecurities don't look good on you. I see you're feeling the heat but don't worry people still love your product despite the growing number of Android users. Now do us all a favor and......
I don't swear on message boards but I feel like ending the letter with a nice acronym that starts with gt and has 2 other letters
Sent from my Droid
- 05-27-2011, 02:33 AM #9
It doesn't matter though; all Apple has to prove is that Samsung intended TouchWiz to look like iOS, which is clear. The way trade dress claims work is that Apple only has to prove that a regular consumer could easily confuse the two, which they could. There are also several design patents that Apple has that Samsung very clearly copied. (encapsulating all of Android's icons in colorful boxes is going to bite them in the ***) Samsung made a (poor) attempt to capitalize on the experience Apple has with the iPhone, and now they're going to end up paying dearly for it.
Our opinions don't really matter. Samsung has an uphill battle fighting against this suit, because cases like this favor the company that filed the suit.
Last edited by Droid800; 05-27-2011 at 02:42 AM.
- 05-27-2011, 02:40 AM #10
I also don't think Apple will get an injunction either. The court will probably order Samsung to change their packaging and other things like that, and Samsung will pay Apple an obscene amount of money for past infringement and to keep using TouchWiz as is, or with some changes.
As I said above though, the case favors Apple by default, and the claims they're making are very, very hard to defend against. Samsung can try, but they could end up losing big if they don't know when to fold and pay up.
- 05-27-2011, 10:25 AM #11
- 1,458 Posts
- Something Buttery
FWIW, I have a Fascinate, and TW did feel a bit like using an iPhone/iOS (which I have used on many occasions with my friends' iPhones). I remember telling my wife how it was maybe an easier UI to get used to over Sense (we were considering the HTC Incredible at the time), mainly bc it felt simpler and more user friendly to Android newbies, and I compared it to using an iPhone. I got rid of TW within a few days of having the Fascinate, use Launcher Pro Plus. So if TW really is like iOS, I guess I made the right choice by going with an Android device so I had the choice to customize my device to my liking.
- 05-27-2011, 02:47 PM #12
The reality is that very few people win these sorts of lawsuits; it's very hard to win cases saying someone is copying your sense of aesthetic in packaging, unless they are purposely ripping you off to try and make it look like they have official approval from your company (i.e. selling a product that they want customers to think is associated with Apple when it isn't). Apple managed to win a few judgements a while back like that, but those companies explicitly wanted people to think they were selling Apple-approved products and accessories.
Samsung most definitely does not want people to confuse their products as being Apple products, they are just using a similar sense of uncluttered minimalizm to try and convey a sense of being high-end. That is a far harder case for Apple to win.
As for the UI, it's possible that Apple may make a single score on the issue of the call icon, and possibly the flower "photo" icon, although even there many people before Apple used the green handset to indicate a call button (RIM's been doing it on Blackberries for years). Since Apple niether invented the green handset to indicate the dialer, nor invented the idea of little icons to launch apps, they're risking losing their copyright almost as much as they have a chance at winning copyright infringment there.
Apple inexplicably included a bunch of things in their lawsuit that will make it even more difficult for them to win a significant judgement against Samsung; they attempt to include the entire UI, not just the two or three icons that are somewhat similar; Apple is simply not going to win a judgement that they own the IP to "colorful icons that launch applications". Worse, they stupidly included the Nexus S in the lawsuit, even though it runs a stock Android experience that is not at all similar to the iOS UI. That makes it look like Apple is simply trying to cast as wide a net as possible to tie down Samsung because Samsung's devices have become perhaps the primary opposition to Apple's. This will increase their burden of proof, and they already were not going to have an easy time.
There are one or two patent applications that I can't evaluate, like the mechanism that articulates the volume rocker; it's entirely possible that Samsung may be in violation of that patent. But that's why Samsung has launched similar patent suits against Apple in multiple jurisdictions; they likely outcome is that both companies will win on 2-3 patent applications, so they'll reach an agreement to mutually license each others' IP.
I still think Apple was hoping not to end up in court but to force Samsung into getting them more supplies for iPhone and iPad models this fall; perhaps Apple is actually scared enough that they intend to see this trade infringement lawsuit through to the inside of a courtroom, but they're fools who have bought their own PR if they do. And worse, it will show how desperate they have apparently become over the Android onslaught if this gets to court.
- 05-27-2011, 02:56 PM #13
As I said above though, the case favors Apple by default, and the claims they're making are very, very hard to defend against.
- 05-27-2011, 06:44 PM #14
Samsung will have a very difficult time fighting against Apple's claims. They can't just say 'no we didn't', because their products speak for themselves. The facts of the claims made against Samsung make it nearly impossible for Samsung to defend against the trade dress claims, and every reputable legal analyst has come to that conclusion. Trade dress claims are among the most potent a company like Apple can make against their competitors, and the similarities between TouchWiz and Samsung's products, and Apple's are going to end up making Samsung's defense very, very difficult.
So, like I said above, what's going to happen is that Samsung is going to be paying Apple a large sum of money for their infringement, and will be forced to change their packaging and some aspects of TouchWiz along the way. Their products won't be banned, no, but Samsung will end up paying dearly.
Last edited by Droid800; 05-27-2011 at 06:51 PM.
- 05-27-2011, 06:51 PM #15
The claims are stronger than you give credit, no doubt due to the creepy crawling of your inner fanboy into the argument
- 05-27-2011, 06:55 PM #16
- 05-27-2011, 07:04 PM #17
- 05-27-2011, 11:21 PM #18
Here's an idea, rather than just quote tech bloggers with an agenda, why don't we take a look at what a somewhat more objective source:
To bring your attention to the most relevant parts, current U.S. Trade Dress laws (since the suit is based in Cupertino) is based on the Lanham Act, and of course recent court precedent based on it. The Lanham Act is specifically "intended to protect consumers from packaging or appearance of products that are designed to imitate other products; to prevent a consumer from buying one product under the belief that it is another." (emphasis added)
It is NOT designed to say that no one can make a product who's packaging has a similar aesthetic to yours, it's designed to prevent manufacturers or retailers from creating a false impression or association on the buyer that a product is endorsed or otherwise related to a third party. Samsung isn't trying to create the impression that their products are made by Apple, they are simply trying to convey a similar level of quality by using a similar minimalist packaging design. The burden will be on Apple to demonstrate that their packaging is making customer thinks Samsung products are built or endorsed by Apple. It is NOT like copyright law, where all you have to do is demonstrate that someone clearly borrowed from your IP without licensing it. (As a total aside, I'd note that Samsung doesn't provide anywhere near the build quality of Apple products - their products are usually plasticy and cheaply built. Odd thing for a "fanboy" to admit, eh?).
Worse for them, the icon copyright will almost certainly not be able to be included in trade dress portion of the product, as those are related to functionality. Here is the relevant part:
"To gain registration in the Principal Register or common law protection under the Lanham Act, a trade dress must not be “functional.” That is, the configuration of shapes, designs, colors, or materials that make up the trade dress in question must not serve a utility or function outside of creating recognition in the consumer’s mind. For example, even though consumers associated a distinct spring design for wind resistant road signs with a particular company, the spring design was not protectable for trade dress purposes because the springs served the function of withstanding heavy wind conditions."
That means that the UI is going to be utterly off-limits in the Trade Dress claim. That will have to rest on copyright law, and as I already explained in earlier posts Apple has a shot at making a claim on perhaps 2-3 icons, although they risk also losing their copyright on some, since (for example) their icon for the dialer app is clearly based on prior art used by earlier phone manufacturers (if you think "prior art" is a colloquial term I beg you to spend some time looking into copyright law before responding).
Even worse, Apple spends a lot of time making dress claims about the iPad's general design (presumably this is why they included the Galaxy Tab, which otherwise cannot be mistaken for any Apple product). Alas, their generic "it's sort of like our iPad" arguement has been explicitly contradicted by previous rulings. The relevant entry is here:
"However, product design, that is the design or shape of the product itself, may not be inherently distinctive, and must acquire secondary meaning to be protected." (Emphasis added)
So here's the crux of it: Apple makes sweeping trade dress claims. Their claims are far out of line with current trade dress law. If this isn't dropped prior to pretrial hearings their UI and "general design" claims for trade dress infringement will be thrown out immediately. They will be left having to prove that Samsung's packaging is intended to deceive the consumer into thinking that Samsung products are Apple products (or otherwise sponsored by Apple) and that will be a difficult argument to make, one I'm incline to give them at best a 40% chance of winning initially, and a much lower chance of winning after appeals.
They have a separate set of copyright claims. Samsung clearly didn't literally copy their icons, yet they also clearly took a cue from them. I wouldn't be surprised if Apple wins on 1-3 of them, in particular the use of a yellow flower for their photo icon seems actionable. At the same time, Apple has miserably confused the argument about this because they are attempting to extend trade dress into UI claims, which is against current precedent and will only hurt them in their copyright claims unless they drop the trade dress issue altogether and really focus on that. As I mentioned, while the flower icon seems reasonably legit, the dialer icon (which is the most similar) is actually very problematic, as the green handset icon was used as prior art by several manufacturers before Apple, and they actually risk losing this copyright even as they may win a small judgement for the photo icon.
Finally, they may have some real patent claims. I mentioned previously that I don't know what the inside of a Samsung volume rocker looks like, but if it matches Apple's patent then they clearly have a claim there. There are one or two others that could possible be valid. Of course Samsung has now filed for 18 or so patent infringements in other jurisdictions, and will probably win somewhere between 2-6 of them. So in the end Apple and Samsung are just going to cross-license those patents.
The absolute best case wet-dream version that is possible for Apple would be they can force Samsung to change their packaging and maybe get a small judgement for 1-2 icons that are copyright infringement. We're not even talking 10's of millions there. The worse case for Apple is they get the entire dress trade argument thrown out, they lose several copyrights on icons, and end up with fewer patent infringement claims then Samsung wins, and Apple ends up paying Samsung a small fee for them.
Apple pays their lawyers a LOT of money. I can't imagine that they haven't been advised on the outcomes that can be reasonably expected. Apple is trolling pure and simple here, hoping to shake Samsung into agreeing to provide more parts for Apple products this fall, rather than running into the same problem HTC had last year. I agree with you that Samsung won't actually use those deals as leverage in this case, but that doesn't mean that Samsung will capitulate either. Apple basically has pulled a Pearl Harbor here: they were hoping to cudgel their opponent into giving them what they wanted quickly, but they are now stuck in a larger fight they probably can't win. I expect a settlement to be made and no details to be released publicly.
You can name-call all you want, but legal rulings do not uphold the claims you are making. The fact that you can quote another blog does not make them correct. And if you doubt the wikipedia entry, I encourage you to follow their citations and look at the rulings and acts yourself.
Last edited by ottscay; 05-28-2011 at 01:13 AM.