Samsung: Apple Didn’t Invent the Rectangle

Responding to charges that it copied the iPhone and iPad, Samsung lawyers on Tuesday told a federal jury that the design of the iPhone is less revolutionary than Apple would have them believe.

“There’s more to the story than what you just heard,” Samsung attorney Charles Verhoeven told the jury, beginning his opening statement. He showed other phones that predate the iPhone and have large rectangular screens taking up most of the area, most notably the LG Prada phone from 2006.

“Apple didn’t invent that,” he said. “That was already out there.”

There is a difference, Verhoeven said, between commercial success and inventing something. Verhoeven also showed an HP and Fidler tablet from years before the iPad that featured a large rectangular screen with rounded corners.

Earlier in the day, the same jury heard Apple lawyers argue that Samsung chose the easy road and copied Apple rather than innovating in response to the iPhone and iPad.

In the highly-watched case, Apple is seeking billions of dollars in damages for patent and trade dress infringement, while Samsung has denied it copied the products, and further charges Apple’s wireless products use its patented technology.

Apple, in its opening, showed a series of Samsung designs that predated the iPhone and some that came after.

Samsung countered that Apple showed only part of the story, noting that Samsung had large rectangular phones before the iPhone and makes non-rectangular ones today.

“Unlike Apple, that makes only one kind of phone,” Verhoeven said, “Samsung makes all kinds of phones for all kinds of people.”

There has been an evolution in technology, Verhoeven said, with technology allowing for more features. “As that functionality increased, the entire industry moved to [larger screens].”

No one, he said, was going to want to watch movies on tiny screens, so screens got bigger.

“It’s not just Samsung,” Verhoeven said. “The evidence will show it is the entire industry.”

Verhoeven said that Samsung isn’t trying to say that the iPhone wasn’t successful, or even that it wasn’t inspiring. It inspired the industry and inspired competition, he said.

“Everybody does it in the commercial marketplace,” he said, adding, “There’s nothing wrong with that.”

Update, 11:38 a.m.: Verhoeven giving an update on Samsung’s participation in the mobile industry. He notes that the company has been in the market since 1991, long before Apple. They’ve spent $35 billion in R&D from 2005 to 2010. Over 20,000 engineers working on R&D worldwide with more than 1,000 designers.

“Samsung is not some copyist,” Verhoeven said. “Samsung is a major technology company that develops its own innovations.”

Verhoeven is talking about Samsung’s local presence in Silicon Valley.

Samsung also supplies 20 percent of the components (by cost) in the iPhone.

“The guts that make this phone work, the flash memory in the phone, the main memory in the phone, the application processor in the phone, they are all supplied by Samsung,” Verhoeven said.

“Clearly, Apple thinks Samsung invented something,” he said.

Samsung also supplies the Retina display and produces the A5x chip in the latest iPad.

11:44 a.m.: There’s nothing wrong with being inspired by competitors, Verhoeven said. Indeed, Apple was inspired by Sony, pointing to an email from Richard Howarth to Apple design chief Jony Ive. That document was allowed, while other Sony-related evidence has been excluded.

Apple was inspired to move to something more Sony-like. “They were inspired by a competitor.”

11:48 a.m.: Verhoeven downplayed the importance of the Samsung market studies comparing its products to the iPhone and iPad.

“Everyone benchmarks against each other,” Verhoeven said. Apple does the same thing, he argues, citing the pretrial testimony of Apple vice president Greg Joswiak.

“If you are going to be the best at something, you have to know what your competition is doing,” Joswiak said in a deposition.

Verhoeven noted that Apple had teardown studies of the Galaxy S phone and Galaxy Tab 10.1 tablet.

“Does that mean that Apple is a copyist?” Verhoeven said. “No, it means it is a competitor. There is nothing wrong with that.”

11:51 a.m.: Turning to the specific allegations, Verhoeven starts with Apple’s trade dress infringement claims.

Verhoeven argues there is not likely to be confusion, a necessary element of trade dress infringement. A tablet, Verhoeven said, is an expensive product that people research before buying.

“It is not something that someone walks into the store, makes a mistake and just casually buys,” Verhoeven said.

11:58 a.m.: Verhoeven is noting that Samsung makes a lot of different phones which not only have different shapes, but different home screens.

“Samsung phones are different,” Verhoeven said, pointing to a screen showing the Droid Charge and several other phones.

12:01 p.m.: There is also no dilution of Apple’s trade dress by Samsung, Verhoeven said, noting that there are tons of other smartphones and tablets that look similar to both Samsung’s products and Apple’s.

12:02 p.m.: Lunch! We’ll reconvene at 1.

1:04 p.m.: Court is back in session; jury should be here momentarily.

1:06 p.m.: Jury is back and Verhoeven is addressing Apple’s allegations of design patent infringement claims.

The first he deals with is a patent related to the iPad design.

“As you can see it is a very simple design,” he said. It’s basically a large rectangular design with rounded corners and minimal ornamentation.

Verhoeven said it is not new and original, pointing to the 1994 Fidler tablet that Samsung referenced earlier in its opening statement. He then holds up a model of an Apple tablet (one much thicker than even the original iPad) that Verhoeven said was the model for the patent in question.

(Don’t forget, Apple first started working on the iPad before even the iPhone’s debut, so likely it would have been a lot thicker had it come to market then.)

Comparing the Galaxy Tab 10.1 to that really thick model, Verhoeven notes there is a clear difference.

1:15 p.m.: Also, part of what Apple’s designers testified made the iPad unique — a single piece housing — isn’t an element of the Galaxy Tab 10.1, Verhoeven said.

“The evidence does not add up,” Verhoeven said. “An ordinary observer could tell the difference.”

1:18 p.m.: On to the iPhone design patents.

“There’s a lot of prior art out there,” Verhoeven said, saying there are a lot of design patents for similar phones with large rectangular screens.

Also, Verhoeven notes that, unlike the patented phones, Samsung’s accused phones don’t have a bezel that is flush with the screen, something that Apple’s designers say is part of what made the iPhone design unique.

And while Apple’s design patent covers a phone with a bezel of uniform thickness, some of Samsung’s accused phones either have no bezel or one of varying thickness.

So, Verhoeven is arguing that if Apple’s design patent is valid, than it is these features that make the patent different from prior art and Samsung isn’t infringing on those elements.

1:25 p.m. PT: The next patent covers the iPhone home screen image.

“The ordinary observer could easily tell the difference,” Verhoeven said, showing the Captive, Droid Charge, Vibrant, Gem, Mesmerize and Showcase, each of which he says has a different home screen and is also clearly different from Apple’s patent.

1:28 p.m.: Moving on to the three utility patents being asserted by Apple, Verhoeven said he wants to cover a few different points.

He starts to address the jury instructions and Apple objects that he is starting to argue the law.

Verhoeven shifts tactics a bit.

“The patent office doesn’t know everything,” he said. Sometimes there is prior art the patent office doesn’t know about. “That is the case with each of these patents,” Verhoeven said.

Samsung is showing a program called FractalZoom that it says shows one, single-fingered gesture being used for panning and a second two-fingered gesture for zooming. That, Verhoeven said, is the same thing that Apple is patenting. There is also a similar gesture approach in a separate “Nomura” patent.

Finally, Verhoeven introduces Jefferson Han’s well known Ted talk from 2006 on multi-touch computing. “He also showed this very same functionality,” he said. “This patent that Apple is (alleging infringement of) is not valid.”

1:36 p.m.: Another patent, relates to centering an object on a screen, Verhoeven said, also was not new. He is showing a product called LaunchTile, demonstrated in April 2005, that he said acts similarly. Microsoft, he said, filed for a patent on similar technology later that year.

By the way, while Samsung is arguing that the Galaxy Tab is easily distinguished from the iPad, colleague John Paczkowski reminds me that Samsung’s own lawyers have had some trouble making the distinction.

As with the other two utility patents, Verhoeven says the evidence will show that there is prior art on the “bounce back” patent.

Samsung will also argue it doesn’t infringe on the patents, but Verhoeven said that he doesn’t have time to get into that.

1:40 p.m.: Instead, he is shifting to a discussion of the patent claims Samsung is making against Apple.

Verhoeven starts by rebutting the notion put forth by Apple that it is significant that Samsung didn’t allege infringement until after Apple filed suit.

“Samsung isn’t in the habit of suing its business partners,” Verhoeven said. “Samsung isn’t the one who decided to compete in the courtroom instead of the marketplace.”

1:42 p.m.: Verhoeven says that Samsung’s data transmission patents are the kinds of things that allow the iPhone to do things like send pictures and surf the Internet.

“These aren’t minor features of your touch screens,” Verhoeven said. “These are core innovations.”

In addressing a second utility patent, Verhoeven stresses how important these technologies are, taking a second swipe at Apple. They are “much more fundamental patents than neat things you can do on a touch screen.”

Verhoeven also said that the evidence would not support Apple’s claim that Samsung breached a duty to share its patent applications with the relevant standards bodies.

1:50 p.m.: On to the three other patents, which relate to camera and music technology.

In discussing one patent on camera technology, Verhoeven notes that Samsung was the first to offer a camera phone with three methods for sending photos: one for sending a plain text message, another for a message with text and photos and a third for sending an image from a photo gallery.

The technology was so important in the iPhone, Verhoeven said, that Apple highlighted it during the product’s introduction, playing a clip of late Apple CEO Steve Jobs sending a photo from the gallery to Senior VP Phil Schiller.

“That is cool technology, I admit it,” Verhoeven said. “The issue is Samsung invented it.”

1:57 p.m.: A second patent covers being in a photo gallery, taking a new picture and returning to the same place in the gallery, while the final patent covers playing music while doing another task.

Verhoeven now wrapping up.

“I think the evidence is going to show here that Samsung hasn’t done anything wrong,” Verhoeven said. “Samsung is an innovator. If anything what we have here is infringement by Apple.”

And, with that, opening arguments are done and the court takes a five minute break.

Apple versus Samsung Full Coverage