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.