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How Samsung lost against Apple and why Apple may lose the appeal

Posted: , by Michael H.

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How Samsung lost against Apple and why Apple may lose the appeal
We all know that Samsung is going to appeal the $1.05 billion loss it suffered to Apple last week, and if the company follows a few simple rules, the appeal should help a lot towards getting Samsung out of the hole it has dug for itself. We talked before about how the ruling shouldn't cause problems with the Android ecosystem as a whole, and Google even echoed that idea. But, the more information that comes out about the trial, the more we feel like Samsung lost this case far more than Apple won it. 

Don't get us wrong, we still stand by the fact that according to the law as it stands, Samsung was pretty much destined to catch heat for its Galaxy S and early TouchWiz designs, and it may have been inevitable that Samsung lost the lawsuit to Apple, but it really shouldn't have been as lopsided as it was. And, maybe it wouldn't have been so lopsided if Samsung's legal team had been a bit more competent, and maybe followed Google's lead a bit more. 

What would Google do?

How Samsung lost against Apple and why Apple may lose the appeal
Throughout this entire saga, the prevailing narrative came from Apple's side, which was that Samsung "copied" Apple designs, and infringed on the patents. One of the major issues was that Samsung never set up a compelling counter-narrative to that. Take for example the obvious parallel in Oracle v Google: Oracle said that Google "stole" code, and Google made very sure that everyone heard its side of the narrative which was "you can't 'copy' what is an integral part of a language". 

If it were Google v Apple in this case, we would have been sure to see a prevailing narrative from Google showing not only prior art, but flat out attacking the validity of the patents in question. Google would have put the entire USPTO on trial for granting patents for a "rectangular product with four evenly rounded corners", "a flat, clear surface covering the front", and "a display screen under the clear surface". Instead, we saw Samsung bungle it the entire way, even right to the end, where it just came out that the jury somehow considered prior art in making its decision, and even after coming to the conclusion that it was impossible to think that "there was no prior art, that there wasn't something out there before Apple", the jury still found the patents to be valid.  

Samsung's failure

That was a huge failure by the Samsung legal team. It isn't like there is a shortage of prior art from which to draw, even if you aren't allowed to go back to 2001: A Space Odyssey. Samsung showed a number of images of its smartphone designs that predated the iPhone, and yet still looked quite a bit like the iPhone. Sure, Samsung didn't really have a good case to defend itself from the claims regarding the TouchWiz UI, but there was certainly enough evidence to support Samsung against Apple's hardware claims. Yet, somehow Samsung wasn't even allowed to put the designer of the Samsung F700 on the stand, because the testimony was somehow ruled to be of little value. 

The F700 wasn't a smoking gun, but it would be hard to fathom that Samsung could have designed that device in the one month between the iPhone announcement in January 2007 and the first sighting of the F700 in February. It would be even better if Samsung didn't even have to show prior art (which it could have anyway), just parallel development. It's not like anyone saw the iPhone before January 2007, and the world of technology is filled with examples of completely independent teams coming to the same product at the same time, and the case could be made that is exactly what happened here. Of course, the patent law as it stands rewards the first to market, and the most successful products, and independent development doesn't matter, even if it proves that no "copying" could have taken place. 

Even the evidence that Samsung was able to bring somehow didn't make a dent, which points even more to a failure of Samsung's legal team. For example, Samsung played this video during the trial, which shows touchscreen technology with pinch to zoom and the bounceback animation which were part of Apple's patent arsenal. Except the video was of the Diamond Touch, a product that Apple was shown by the developers back in 2003. 


Samsung had Mitsubishi engineer Adam Bogue testify to the fact that he showed the design to Apple in 2003, but the jury still found Samsung to be in violation of that patent. And, one big reason why the jury sided that way wasn't just that the jury apparently ignored the question of prior art in its deliberations (although that was a big issue); it was more that Samsung allowed the jury to ignore those questions. If you take a look at the jury instructions that were used in the deliberations, the first 10 questions all pertain to whether or not Samsung infringed on Apple patents. It isn't until question 11 (on page 9 of the 20 page document) that the question is asked whether or not these patents are valid.

If this seems backwards to those (like us) who don't have an intimate knowledge of the law, it should certainly at least be a point of contention for the Samsung legal team. It should have been set up to determine the validity before determining infringement, because the second completely depends upon the first. Of course, as we said before, somehow the jury did determine that there must have been prior art, but still found the patents to be valid, which points to a huge failure by Samsung to adequately explain prior art and the importance of determining the validity of patents. 

Appeals: the second chance

Samsung can't appeal everything from the verdict. Samsung can't appeal the infringement or trade dress dilution rulings, because those are "findings of fact", and Samsung would have to prove that the jury was not a "reasonable jury". Samsung will have a hard time proving that the jury wasn't reasonable, they just weren't given the right instructions by the Samsung team, but that argument won't go too far. However, Samsung can certainly appeal the matters of law, which would go specifically towards whether or not Apple's patents are valid. Given that this jury saw plenty of prior art, it should have been easy to prove the patents to be invalid, but Samsung failed on that point. The appeals process will give Samsung a second chance on that. 

Samsung will still be on the hook for a huge fine because of this current ruling, but if the Samsung team can present its case properly in appeals, it could potentially notch a win against Apple's patent portfolio, although we're not sure how much faith in Samsung's lawyers we have at this point. At least the list of devices that Apple wants banned after the ruling is made up mostly with devices that are coming up on the end of their life-cycles. 

Samsung just has a few things to focus on with the appeal to this verdict. The first is easy: just present the same examples of prior art that convinced the jury this time around. The second is apparently more difficult for Samsung: to adequately explain to the jury what that prior art means in regards to determining the validity of Apple's patents. At the very least, Samsung should try to make sure that the jury instructions are written properly. And, lastly, Samsung needs to make sure that its narrative gets through, because evidence doesn't mean much if the jury has already decided on day one that there is infringement. 

172 Comments
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posted on 27 Aug 2012, 16:37 63

1. msa1988 (Posts: 418; Member since: 30 Mar 2010)


Apple should, and deserves to lose this case. How can they say Samsung copied them? All the phones are similar. There are so many things (voice command, cameras, etc.) that phones had before the iPhone. So apple copied that? This whole case is ridiculous. There's no way you can state anyone coped off anyone. I open a restaurant down the street, and another one opens. It's a restaurant, so they copied me?! It doesn't work that way. It's called competition, Apple, get over it.

posted on 27 Aug 2012, 16:48 16

3. Jay_F (Posts: 236; Member since: 29 Nov 2011)


Samsung blatantly copied Apple. Any reasonable person can see that. That part is over with though. Now what Samsung has to do is get some of the ridiculous patents Apple has invalidated.

posted on 27 Aug 2012, 17:29 23

17. structureman116 (Posts: 139; Member since: 14 Sep 2010)


The jury was clearly biased in Apples favor. One of the jurors came out and said already that it was all Apple from day 1,and it was just a matter of determining the damages. While Samsungs lawyers sucked an egg, had they been given opportunities to produce their prior art and call their design witnesses this case would have turned out completely different. And Samsung should not be held liable for copying when they CLEARLY have prior art that looks similar to an iphone!

posted on 27 Aug 2012, 23:03 6

96. a_tumiwa (Posts: 373; Member since: 16 Mar 2012)


Jay_F, i am sure you dont know what "copy" means

posted on 28 Aug 2012, 01:42 3

109. willard12 (Posts: 1727; Member since: 04 Jul 2012)


The Samsung F700. any reasonable person can see that...its on the photo right above.

posted on 09 Sep 2012, 01:57

171. Hemlocke (unregistered)


Even Android websites were debunking the "F700 conspiracy theory." You would have to be a blind moron to believe that a fat, resistive-screened, QWERTY slider dumbphone has ANYTHING to do with this case.

posted on 28 Aug 2012, 01:59 5

114. anywherehome (Posts: 971; Member since: 13 Dec 2011)


nicely brainwhashed

why don't you show comments like "Samsung blatantly copied" but you hid "Apple steals"??????

ever YOU are paid by Apple??

"
and apple ripped off several windows mobile phones before it. Apple doesnt innovate it steals. Only reaon they won the case is becasue its an American company vs a foreign company and from the sounds of it.. they basically ignored samsung during delirbartion and already had decided against them. This jury was full of biased people who really just wanted apple to win.
"

posted on 28 Aug 2012, 03:21

129. danny_a2005 (Posts: 167; Member since: 06 Oct 2011)


cmon ive copied my homework since i was a kid... im in jailk? i dont think so.. and I bet all of you have copied in tests or whatever at least once so STFU and buy whatever you want... Apple i you want to earn customers, innovate

posted on 28 Aug 2012, 06:27 2

133. remixfa (Posts: 14255; Member since: 19 Dec 2008)


never copied a test that wasnt open book... or online only. :)

posted on 28 Aug 2012, 08:11 1

135. android8 (Posts: 23; Member since: 07 Aug 2012)


Apple just got the advantage of being at home country. The claim from Apple did not had any weight.

posted on 27 Aug 2012, 16:57 3

8. ardent1 (Posts: 2000; Member since: 16 Apr 2011)


>How can they say Samsung copied them?

Samsung had a fair trial, not a perfect trial, and 9 jurors all arrived at the same conclusion -- not only did Samsung "steal" Apple's IP, Samsung did it "willingly and knowingly".

And by the way, your example is dumb -- a restauant idea or concept is not the same as patented IP. Patented IP is innovation and America wants people and companies to innovate, so America protects its IP.

Here's my recommendation, please don't argue like the Samsung lawyers that lost the trial -- you need better arguments or you need to "get over it" yourself.

posted on 27 Aug 2012, 18:04 3

37. Hemlocke (unregistered)


The best part is? Samsung could get soaked for 2-3 times what the damages were. THAT would be hilarious.

posted on 28 Aug 2012, 01:47 5

110. willard12 (Posts: 1727; Member since: 04 Jul 2012)


Did you just completely ingnored the F700 and this entire article on "prior art." We wouldn't want you to get bogged down on prior art....so keep calling it Apple's IP, though it arleady existed. Maybe you were a juror

"We were debating heavily, especially about the patents on bounce-back and pinch-to-zoom. Apple said they owned patents, but we were debating about the prior art [about similar technology that Samsung said existed before the iPhone debuted]. [Velvin] Hogan was jury foreman. He had experience. He owned patents himself...so he took us through his experience. After that it was easier. After we debated that first patent -- what was prior art --because we had a hard time believing there was no prior art."

"In fact we skipped that one," Ilagan continued, "so we could go on faster. It was bogging us down."

posted on 28 Aug 2012, 10:31 2

142. Fallout09 (Posts: 421; Member since: 17 Oct 2011)


Ironicly Hogan has a patent for a DVR device that was granted 3 years after TIVO was released to the market. Meaning he didnt want to discuss "Prior Art" because prior art existed before his patent and could render his patent invalid.

posted on 28 Aug 2012, 18:21 1

158. jroc74 (Posts: 6015; Member since: 30 Dec 2010)


This case gets more n more interesting....even after its over with.

posted on 28 Aug 2012, 06:07 3

132. SGSatlantis (Posts: 226; Member since: 20 Jul 2011)


Guys please have mercy on ardent1, I hate pressing "show" for every comment he makes:)

posted on 27 Aug 2012, 17:43 2

21. Hemlocke (unregistered)


The problem is that your narrative is flawed. iOS had voice control, multitouch, pinch-to-zoom, the first capacitive touchscreen smartphone OS...almost every modern smartphone, and every Android phone, derives itself from the iPhone. There are so few things Android had first, and none of them are major in light of the fact that Android is a 180 degree change of direction from the original intended product in the wake of the iPhone's introduction in 2007.

posted on 27 Aug 2012, 17:53 14

23. audiblenarcotic (Posts: 111; Member since: 16 Nov 2011)


His point was that smartphones around before the iPhone had these features. iPhone took from others as much as Samsung took from iPhone. Its called being competitive. Yes the original version of Android was more aimed towards Blackberry but then iPhone came out and Google saw that as the real competition and revised Android to compete against it. There is a fine line between copying and competing. Coke doesn't sue Pepsi just bacause they had a Vanilla variant first.

posted on 27 Aug 2012, 18:04 1

38. quickweevil (Posts: 51; Member since: 21 Dec 2011)


You can't patent a flavor. That's a poor example.

posted on 27 Aug 2012, 18:13 4

41. audiblenarcotic (Posts: 111; Member since: 16 Nov 2011)


Its about as patentable then anything Apple is trying for.

posted on 27 Aug 2012, 18:19

45. quickweevil (Posts: 51; Member since: 21 Dec 2011)


Wrong, because what Apple has patents for (prior art aside simply because I'm not sure what evidence is out there) are legally patentable. Smells and flavors cannot be patented...

posted on 28 Aug 2012, 12:07

145. -box- (Posts: 3991; Member since: 04 Jan 2012)


@quickweevil I dunno, you might be able to patent a flavor if it was new and unique and required a lot of crafting... or at least patent the process or the ratio of X ingredients to make said flavor. Doesn't seem much different than patenting new materials (i.e. Kevlar) in concept

posted on 27 Aug 2012, 17:59 6

32. jroc74 (Posts: 6015; Member since: 30 Dec 2010)


First capacitive touch screen smart phone OS goes to what was on the LG Prada.

Voice control was out before iOS.

I will give Apple multi touch and pinch to zoom on phones....but thats about it as far as firsts.

posted on 27 Aug 2012, 18:03 2

35. Hemlocke (unregistered)


Voice control may have been on Nokia, but not Android. Check your facts.

The first capacitive touchscreen smartphone was the Prada, but they were almost simultaneous debuts. You think Apple copied them in a couple of weeks? Where are LG's patents if they had development first?

posted on 27 Aug 2012, 19:17 2

69. jroc74 (Posts: 6015; Member since: 30 Dec 2010)


Never said anybody copied anybody.

I just addressed what you thought were first for the iPhone and iOS.

posted on 27 Aug 2012, 19:18 2

71. jroc74 (Posts: 6015; Member since: 30 Dec 2010)


I never mentioned Android.

You basically said every modern smart phone is derived from the iPhone. Thats not entirely true.

posted on 27 Aug 2012, 20:08 5

83. tedkord (Posts: 12312; Member since: 17 Jun 2009)


The point is, as has clearly been shown, Apple copies just as much as anyone else. And worse, they then patent what they copied, and try to stop others from using it.

The more things change,v the more they stay the same. This is the same thing Apple pulled with the GUI. They stole it from Xerox, then tried to sue Microsoft for stealing it from them. Fortunately, we had saner patent laws back then, or for the next twenty years if you wanted a home computer other than an Apple product, you'd have had to stay in a command line DOS type environment.

posted on 28 Aug 2012, 00:14 3

107. luxzy801 (Posts: 140; Member since: 16 Jun 2010)


LG could not patent capacitive screen technology, neither could Apple because it was patented back in 1976 by GE (i believe, I might have the year wrong). I also believe multi-touch was patented back in 2003 by NEC or 3COM. The only credit that I will give Apple is the pinch to zoom.
The iPhone was several months behind the Prada, the prada was already being sold when the iPhone was going through the FCC.

posted on 28 Aug 2012, 12:01 3

144. MAS10X (Posts: 38; Member since: 26 Jul 2011)


and you think that the F700 copied the iPhone with just one month release difference??? Is that plausible in your logic?

posted on 28 Aug 2012, 18:26 1

159. jroc74 (Posts: 6015; Member since: 30 Dec 2010)


E X A C T L Y!

BUT...Apple actually said this in the trail: It took Samsung 3 months to copy what we've been developing for 5 years.

http://www.phonearena.com/news/Apple-vs-Samsung-closing-arguments-It-took-you-three-months-to-copy-what-weve-been-developing-for-five-years_id33572#1-

In Apple eyes, and the fanboys....Samsung could have made the F700 in a month.

This case was a sham from the beginning, period.

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