SAN JOSE, Calif. -- An eight-person jury on Friday handed back a mixed verdict in the Apple v. Samsung patent-infringement case, determining that both companies were guilty in some aspects but not guilty in others.
The jury found all of Samsung's accused gadgets infringed Apple's '647 "quick links" patent but that none infringed the '959 "universal search" patent or the '414 "background sync" patent. Results were mixed for the '721 "slide to unlock" patent, with some Samsung devices, such as the Galaxy Nexus, found to infringe, and others found not to. Judge Lucy Koh, in a pretrial judgement, had already ruled that Samsung infringed the '172 "automatic word correction" patent, and the jury simply calculated damages.
The jury awarded Apple only $119.6 million for Samsung's infringement, much less than the $2.2 billion it had requested.
Meanwhile, the jury also determined that Apple infringed Samsung's '449 patent for photo and video organization in folders and awarded the Korean company $158,400. Samsung had accused Apple of infringing two patents and asked for damages of about $6.2 million.
The jury will return Monday at 9 a.m. to reconsider one of the damages figures. It awarded Apple no damages for one version of the Galaxy S2, but Apple believes it should be awarded some money for Samsung's infringement of the '172 patent.
Asked for a response to today's events, a Samsung spokesperson said, "It is inappropriate to comment while the jury is still deliberating."
Apple said in a statement that it's "grateful to the jury and court for their service."
"Today's ruling reinforces what courts around the world have already found: that Samsung willfully stole our ideas and copied our products. We are fighting to defend the hard work that goes into beloved products like the iPhone, which our employees devote their lives to designing and delivering for our customers."
Apple v. Samsung - completed jury form
The jury reached its verdict shortly before 4:30 p.m. PT Friday, the end of the third full day of deliberations. The verdict was read to the court about half an hour later.
The results of the trial are less clear cut than the previous patent-infringement case and damages retrial that netted Apple about $930 million. However, the results likely will be viewed as a victory for Samsung. The damages amount owed to Apple fall far below the company's request, and Samsung wasn't found to infringe all of Apple's patents. In addition, Apple was found to infringe one of Samsung's patents, something that didn't occur in the previous trial.
"This outcome feels like a defensive victory for Samsung, but not a particularly shocking one," said Brian Love, assistant professor at the Santa Clara University School of Law. "With Google directly involved in developing the allegedly infringing software, Apple's claims that Samsung blatantly copied the iPhone never rang true."
Almost two years after Apple and Samsung faced off in a messy patent dispute, the smartphone and tablet rivals returned to the same courtroom here to battle once again over patents before Judge Koh. Apple argued that Samsung infringed on five of its patents for the iPhone, its biggest moneymaker, and that Apple was due $2.2 billion for that infringement. Samsung wanted about $6.2 million from Apple for infringing two of its software patents, and it argued that even if it did infringe all of Apple's patents, it should have to pay only $38.4 million.
While the companies asked for damages, the case is about more than money. What's really at stake is the market for mobile devices. Apple now gets two-thirds of its sales from the iPhone and iPad; South Korea-based Samsung is the world's largest maker of smartphones; and both want to keep dominating the market. So far, Apple is ahead when it comes to litigation in the US. Samsung has been ordered to pay the company about $930 million in damages.
The two companies presented their closing arguments Tuesday. The case was then handed to the jury of four men and four women shortly before 3 p.m. PT that day. The jury was made up of tech novices such as a police officer and a retired teacher. Only one member, a former IBM software executive, had experience in technology, while another works in renewable energy.
In the case, Apple and Samsung accused each other of copying features used in their popular smartphones and tablets. The trial involved different patents and newer devices than the ones disputed at trial in August 2012 and in a damages retrial in November 2013. For instance, the new trial involved the iPhone 5 , released in September 2012, and Samsung's Galaxy S3 , which also debuted in 2012.
Most Samsung features that Apple said infringe are items that are a part of Android, Google's mobile operating system that powers Samsung's devices. All patents except one, called "slide to unlock," are built into Android, Samsung said. Apple has argued the patent infringement trial has nothing to do with Android. However, Samsung called Apple's suit an and said that Google had invented certain features before Apple patented them. It came out during the trial that Google has been helping Samsung fund its defense against a couple of Apple's patent claims because of a "Mobile Application Distribution Agreement" for Samsung to use Google's apps.
Suing Google wouldn't get Apple far since Google doesn't make its own phones or tablets. Instead, Apple has sued companies that sell physical devices using Android, a rival to Apple's iOS mobile operating system. In particular, Apple believes Samsung has followed a strategy to copy its products and then undercut Apple's pricing.
The monthlong trial, which kicked off March 31 with jury selection, included about 52 hours of testimony, three hours of opening arguments, and four hours of closings. It covered everything from the invention of the technology at issue in the case to what damages should total. Apple argued throughout the trial that its case was about Samsung, not Google, and that Samsung copied Apple out of desperation. Samsung, meanwhile, argued that Apple's suit was about hurting competition and Android.
An appeals court ruling April 25 in Apple's related patent-infringement suit against Motorola threw a wrench in the Apple v. Samsung case, extending the duration of the trial by one day to give the parties one additional hour each -- on top of the 25 apiece they already had -- to present more evidence. The US Court of Appeals for the Federal Circuit on Friday upheld a ruling by Judge A. Posner of the Northern District of Illinois that determined a specific interpretation of Apple's '647 "quick links" patent. Koh had allowed the patent, particularly the use of an analyzer server, to be interpreted in a way in the current trial that differed from Posner's accepted meaning, so she allowed Samsung and Apple to address the patent Monday.
There were seven patents at issue in the latest case -- five held by Apple and two by Samsung. Apple accused Samsung of infringing US patents Nos. 5,946,647; 6,847,959; 7,761,414; 8,046,721; and 8,074,172. All relate to software features, such as quick links for '647, universal search for '959, background syncing for '414, slide-to-unlock for '721, and automatic word correction for '172. Overall, Apple argued that the patents enable ease of use and make a user interface more engaging.
Samsung, meanwhile, has accused Apple of infringing US patents Nos. 6,226,449 and 5,579,239. The '449 patent, which Samsung purchased from Hitachi, involves camera and folder organization functionality. The '239 patent, which Samsung also acquired, covers video transmission functionality and could have implications for Apple's use of FaceTime.
The Samsung gadgets that Apple said infringe are the Admire, Galaxy Nexus , Galaxy Note , Galaxy Note 2, Galaxy S II, Galaxy SII Epic 4G Touch, Galaxy SII Skyrocket, Galaxy S3, Galaxy Tab 2 10.1, and the Stratosphere. Samsung, meanwhile, said the iPhone 4 , iPhone 4S , iPhone 5, iPod Touch (fifth generation), and iPod Touch (fourth generation) all infringe. Samsung initially accused the iPad 2 , iPad 3, iPad 4, and iPad Mini of infringing its '239 patent, but it later dropped those claims. That also reduced the amount Samsung wanted in damages to $6.2 million from its originally requested $6.8 million.
The trial contained testimony by numerous technical and damages experts, as well as people who invented the technology at issue in the case.
The first day of arguments featured testimony by Phil Schiller, Apple's head of marketing. Other witnesses who have testified for Apple include Greg Christie, an Apple engineer who invented the slide-to-unlock iPhone feature; Thomas Deniau, a France-based Apple engineer who helped develop the company's quick link technology; and Justin Denison, chief strategy officer of Samsung Telecommunications America. Denison's testimony came via a deposition video.
The crux of Apple's case came with two expert witnesses, John Hauser, the Kirin professor of marketing at the MIT Sloan School of Management; and Christopher Vellturo, an economist and principal at consultancy Quantitative Economic Solutions. Hauser conducted a conjoint study that determined Apple's patented features made Samsung's devices more appealing, while Vellturo determined the amount of damages Apple should be due for Samsung's infringement: $2.191 billion.
Samsung, which launched its defense April 11 after Apple rested its case, called several Google engineers to the stand to testify about the early days of Android and technology they created before Apple received its patents. Hiroshi Lockheimer, Google vice president of engineering for Android, said his company never copied iPhone features for Android. Other Google Android engineers, Bjorn Bringert and Dianne Hackborn, also testified about features of the operating system.
High-ranking Samsung executives, including former Samsung Telecommunications America CEO Dale Sohn and STA Chief Marketing Officer Todd Pendleton, also took the stand during the monthlong trial. The two executives testified about Samsung's marketing push for the Galaxy S2 and other devices, saying a shift in the Korean company's sales and marketing efforts -- not copying Apple -- boosted its position in the smartphone market.
The latter half of the trial largely featured experts hired by Samsung to dispute the validity of Apple's patents and to argue that Samsung didn't infringe. David Reibstein, chaired professor of marketing at the University of Pennsylvania's Wharton School of Business, refuted Apple expert Hauser's testimony from earlier in the trial. Judith Chevalier, a professor of economics and finance at the Yale University School of Management who was hired by Samsung, said her analysis determined that a reasonable royalty for Samsung's assumed infringement would be $1.75 per device, or $38.4 million overall. Apple had argued it deserved $40 per device for infringement as well as lost profits for a total of $2.191 billion.
After presenting its defense, Samsung on April 21 launched its own infringement suit against Apple. Dan Schonfeld, a professor of computer science at the University of Illinois at Chicago, testified that Apple infringed the '239 patent in its iPhone through the use of FaceTime and a feature for attaching video to messages and mail. And Ken Parulski, another expert who was part of the Kodak team that developed the world's first color digital camera, testified that Apple infringed another Samsung patent for organizing video and photos in folders.
James Storer, a professor of computer science at Brandeis University hired by Apple as an expert witness, then testified April 22 that Apple didn't infringe Samsung's patents. The company then called witnesses such as Apple engineers Tim Millet and Roberto Garcia to testify about the creation of technology used in iPhones and iPads. Millet serves as senior director of platform architecture at Apple, helping create the processors that power iOS devices. Garcia, meanwhile talked about the creation of the FaceTime technology that has been accused of infringing a Samsung patent.
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Background: The following long-form post is based, in part, on the seminar sponsored by the New York Technology Council / UX Design Track titled: “Apple vs. Samsung: What the case means to software development and UX design”2 . The session was held in New York on October 23, 2012. The session featured presentations by Christopher V. Carani Esq.3 , Robert S. Katz Esq.4 and Charles L. Mauro CHFP5 . The seminar was created and moderated by Charles L. Mauro.
How Important Is This Case?
No other U.S. patent case in recent history has consumed as much media bandwidth and generated more discussion than the recent Apple v. Samsung case in the Northern District of California6. That case resulted in the largest jury award for patent infringement in history (1.05 billion dollars). However, this is by no means the first patent case with potentially massive implications for the technology we have come to rely on to improve our daily lives. Other cases have had similar impact including the famous Wright Brothers7 patent litigation involving fundamental aircraft design and the battle between Alexander Graham Bell and Western Union over misuse of Bell’s telephone patent8. Over the past 100 years there have been a handful of patent cases that have fundamentally impacted how products in major commercial sectors are designed and commercialized in the U.S. market. While it is too early to place the Apple vs. Samsung case at the same level of impact as the Wright Brothers litigation, it is likely that the case has altered how smart companies going forward will create and protect innovations in the mobile platform space.
More Than a High Profile Legal Case
Lawyers see this case as simply a series of patents and related protections litigated brilliantly to the financial benefit of Apple. Surprisingly, the legal position is not the most important fall-out from the verdict. The case will certainly have an impact on Product Design, User Interface (UX) Design and Software Development. This fact will remain valid whether or not aspects of the case are overturned on appeal. Specifically, when one peels back the veneer of the case and views the judgment from the perspective of Product Design, User Interface (UX) Design and Software Development, surprising insights emerge which a legal analysis fails entirely to frame. There is far more to the case than simple financial or legal precedent.
What Was Apple Really Trying to Protect?
The answer to this question is found in detailed examination of the patents that Apple chose to assert against Samsung. Below is a list of the patents that the parties asserted against each other in this matter9.
Apple initially accused Samsung of infringing:
- `381 patent: touchscreen interactions
- `915 patent: using an API to scroll through documents
- `163 patent: tap-to-zoom
- `677 patent: general outline and ornamental design
- `087 patent: general outline and ornamental design
- `889 patent: ornamental design
- `305 patent: GUI for a display screen
Samsung countersued, accusing Apple of infringing:
- `941 patent: mobile phone 3G capabilities
- `516 patent: mobile phone 3G capabilities
- `711 patent: MP3 playback on a mobile device
- `460 patent: device that functions as a phone and a camera
- `893 patent: method for remembering user’s place in a gallery
When one decomposes the patents asserted by Apple against Samsung it is clear that Apple was intensely focused on protecting more than individual patents taken at random from its portfolio of about 1,300 patents10 related to mobile devices. The palette of patents asserted against Samsung is a clear and convincing example of the concept that “the whole is greater than the sum of its parts.” Based on a detailed analysis of these patents and their relatedness, it is clear that when combined the Apple patents create, as closely as possible given the complexity of the litigation, the “Total User Experience (TUX)“11 of the iPhone and related Apple iOS devices.
Protecting More Than Patents Claim
The asserted Apple patents covered the look of the iPhone, the style of the screen-based interface, design of the icons and related screens, and some of the essential gesture-based interaction behaviors of the iPhone product. The sum of these patents covered essentially the iPhone you may or may not have in your hand from the standpoint of what you cognitively experience when you use the device. In retrospect this was a brilliant strategy because it gave Apple the opportunity to secure (conceptually) protections well beyond those that accrue to any single patent related to iPhone technology.
This was likely an essential legal strategy of Apple since it is the Total User Experience (TUX) of the iPhone that drives commercial success, not any individual feature or function as presented in a single patent asserted. It is interesting to note that Samsung asserted against Apple a series of garden-variety utility patents, which the jury found Apple had not infringed. The Samsung patents did not appear to have any specific rationale for selection other than they might have been broadly applicable to cellphone infrastructure. In this regard Samsung’s legal team seemed clueless with respect to the larger strategy by Apple to fence in the TUX of the iPhone through careful selection of key patents that combined to create a far broader protective screen around the iPhone product offering.
Mind Math: 1+1=5
This approach of conceptualizing the iPhone as comprised of many highly engaging features which combine to create an experience which is greater that the sum of its parts fits exactly with advanced research12 in UX design which posits the view that a company’s most valuable corporate asset in the future will be the total user experience of its products, not a subset of features covered by discrete, individual patents or related IP. The cognitive science behind this approach is well understood by those who develop such products but ignored entirely by the current legal IP system. The human mind does not approach the world as a series of disconnected features but assembles experiences from the world we inhabit to form a mental model that is robust and determines what we find engaging and meaningful.
Smart companies going forward will work with their IP counsel to frame patent applications and related litigation toward protecting the total user experience of their products. But the road to an IP strategy like Apple’s that focuses on the total user experience may not be an easy one. The current legal system works in exactly the opposite direction by requiring inventors to slice up their products into many features that can be described in patent claims or in other forms of narrowly defined legal descriptions. Trade dress13 protection is a notable exception but is understood to be, in its current state, both unwieldy and difficult to assert.
The Fundamental Problem with the Current IP System
Some of have said this “divide and define” legal framework is a fundamental conceptual and structural problem with the current patent system and its ability to protect these new massively interconnected, screen-based, software-driven, globally distributed, high-technology products and services. Furthermore, patent litigation currently requires attorneys, working with the aid of economic experts, to place a dollar value on features that have been infringed. One can see immediately the friction between the value of individual features and the value of the combined total user experience where a given feature or features may reside. This is not a new concern and has recently become a source of considerable debate and rancor within the legal system and the larger software development community.
In the future, it may be conceptually impossible, from a business perspective, to decouple individual features from a highly successful product, like the iPhone, in a manner that allows the courts to assign a meaningful dollar value to infringement of piecemeal features. This is a heated topic of debate in the legal community that has surprisingly brought out opinions ranging from lawyers to federal court judges. Nowhere has this issue been made more obvious than in the recent Federal Circuit rulings and writings of Judge Richard Posner14 in the case of Apple vs. Motorola15. In his recent rulings in the Apple v. Motorola case, Judge Posner was so upset by the testimony of the economic experts of both sides when establishing the value of features found infringing that he called the experts in formal legal opinions “Dummy” and “Dummkopf”16.
Judge Posner went on to write a surprisingly candid review in The Atlantic17 of the current US Patent system that has been characterized alternatively as a “rant”18 and the opinions of “an influential loose canon.”19
Judging Judge Posner
When viewed in the context of the new forms of technology that allow companies to create highly engaging and successful total user experiences like those found in the iPhone, Judge Posner had it exactly right. In the context of business impact Judge Posner’s frustration with piece-meal valuations of asserted and infringing features is both deeply insightful and functionally correct. Assigning an asset value to individual features of an overall user experience like that of the iPhone makes little practical sense in the context of how such features actually contribute to the overall user experience of the product. All truly successful products are carefully conceived combinations of features, which, as we have said, can create engagement at a level that makes customers the world over stand in line to purchase an iPhone.
The difficult problem is determining how one assigns the proper value to a given feature or set of features in a manner that is objectively related to the commercial success of a product like the iPhone.
The marketing sciences have been dealing with this question for over a decade as marketing experts are constantly testing the marketplace to identify clusters of features that will produce enhanced purchase decision behaviors. The current patent litigation system has no such sophistication either conceptually or technically, hence Judge Posner’s frustration. As previously noted, in the Apple v. Samsung case, Apple focused on protecting the total user experience by asserting a cluster of patents that combine to drive high levels of user engagement. This raises the profoundly interesting question of exactly how many features and functions protected by patents does one have to remove before the iPhone user experience is also removed. This is probably a conversation Samsung bet the farm on but somehow failed to understand completely. The finding of infringement based on this palette of IP protections is a massive win for Apple both tactically and strategically. In fact, in terms of long-term business impact, this aspect of the win is vastly more important than a billion dollars in cash. It is also a strategy that others can learn from in a big way.
The Long Ball
Ultimately what Apple has to be reaching for in the future is a way to protect the iPhone TUX under the legal concept of a comprehensive trade dress20 judgment. Under that legal framework, Apple will have virtually no time limit on protection and will be able to objectively tie the iPhone TUX to core consumer purchase decision behaviors and product recognition. It is important to note that some measure of trade dress protection was achieved in this litigation but when taken in the larger context Apple can objectively claim a much larger field of user engagement or customer touch points when defining its overall user experience. Such trade dress claims can easily be conceptualized as including all primary and secondary consumer touch points such as retail, Genius Bar, web site, etc., all integrated into a truly Total TUX.
While there do not appear to have been patents claiming the total user experience design as patentable subject matter it is only a matter of time before companies with highly engaging and successful TUX solutions file for such patents. In a critical way this is the future of product and service design protective strategies as it allows companies to protect the combined “whole” of their user experience solutions across all relevant customer touch points.
Judge Koh’s Strategy and Opinions on UX Design and Infringement
Judge Koh21 was, by most measures, an outspoken jurist with her own clearly stated opinions accompanied by a well defined strategy for keeping the case on track and both sides within bounds. This was no simple task. Her formal statements from the bench resulted in surprisingly strong opinions on the merits of the case along with decisions that allowed for a case of such profound impact. Specifically, Judge Koh allowed a wide range of legal IP protection forms to be litigated in the same case at the same time. She allowed Apple to assert infringement based on several major forms of IP protection (utility patents, design patents and trade dress)22 in the same trial, a fact that some have said was a dramatic benefit to Apple in implementing its ultimate legal objective of producing a “walled garden” of IP protection which combined design patents, utility patents, and trade dress.
By allowing consideration of such a wide palette of IP protection in this single matter Judge Koh may have established a critical precedent that will impact both legal strategy and product development. The legal teams and product development staff of companies large and small involved in UX design and software development should clearly benefit in a big way by making use of the widest range of IP protections possible and UX design should be conceptualized as an effort which optimizes against the total UX experience, not just individual features and functions and related infrastructure.
Judge Koh’s Opinions and the Design Experts
It is important to note that much of the coverage of the case in the mass media focused on the look of the iPhone or its “overall shape, style and appearance” as compared to that of the Samsung products. Even though Apple successfully executed a broader strategy of protecting the overall UX design of the iPhone, the design patent aspects of the case did generate by far the largest portion of the total financial award of 1.05 billion dollars23. The design patent aspects of the case were of special interest to Judge Koh as she expressed her opinion related to the similarity of the Apple and Samsung products during various pre-trial hearings. To say that she believed the products to be similar is an understatement. In one exchange with the two legal teams present she essentially held up the two products and challenged the Samsung team to tell the difference.
This exchange24 apparently left the Samsung lawyers speechless if not totally flummoxed. The surprising aspect of this exchange and the judge’s expression of likeness between the competing products was that Samsung lawyers gave the Judge a complete free pass on her opinion and never offered up expert analysis or testimony for the judge or jury on the cognitive science of shape perception. It turns out that such science reveals surprising insights on the question of shape equivalence. There was a great deal of expertise and science available to Samsung related to shape perception that could have helped educate the judge and jury on the realities of the ordinary observer test25. Surprisingly, throughout the entire trial, Samsung did not use expert testimony to educate the judge and jury on the science of shape perception.
Certainly such lack of insight and expertise on the part of Samsung’s legal team gave Apple a free ride on the design patent infringement. Would such testimony have altered the findings of the jury? One will never know, but clearly Samsung could have provided the judge and jury with a far more reasoned and research-based understanding for reaching the finding of infringement on the design patent issues.
Why Protecting the Total User Experience (TUX) is Critical for Apple
While the media frenzy surrounding this case created surprising awareness and discussion ranging from skits on Saturday Night Live26 to Conan O’Brien27, the fact is that this case was not only about the current products in question but more specifically about future products to be created by Apple, Samsung and many other corporations that will populate our world in the next 10-15 years. In this regard the case is more about what is not on the table than what is.
Looking Beyond This Case to the Larger Technology Trends
There are a number of important trends in technology that are critically important when determining the impact that this case will have on product and software development over the longer term. Of the several important trends, the “connectedness” of devices is the most compelling in the context of this case. This trend estimates the number of products across eight major product categories that will be connected by some form of interactive network over the next 10-15 years. Research from numerous sources suggests that the so-called “Internet of Things” is going to take place on a massive scale, unlike anything we can imagine today. When one examines this data, for example shown in the chart below, it can be seen that the largest number of devices that will likely be networked are not computer clients but consumer products, followed by pallets and cases, appliances, machinery, vehicles, and hand held devices28.
The Numbers Game of UX Design in the Future
While the impact of this trend is beyond the scope and purpose of this discussion, it is clear that companies like Apple, Samsung and thousands of other entities large and small will soon create products under their own brands which will be connected to a common universal network. Each of these products, devices or even entire processes will require a user experience that informs the customer of that specific product’s status and features.
What Matters Most
In this new world of connectedness between all manner of devices, one key factor, more than any other, will drive success, and that is the delivery of a common, highly engaging and easy-to-learn user experience that resides cognitively in the same form across many customer touch-points. The future goes to those who have the greatest control over the most productive user experience design running on the greatest number of devices.
This is a fundamental structural concept for a world of connected things. When companies have a compelling and easy-to-learn user experience running across many devices they provide the customer/user with one huge benefit: positive transfer-of-learning from device to device. This dramatically reduces the cognitive workload of customers and reduces friction at the point of sale. One can see this principle in action when walking into an Apple retail store where the iPhone behaves much like the iPad which in turn behaves like the iPod…and so on.
Samsung’s Thousands of Products vs. Apple’s Twenty
Samsung and other large corporations are peering into a future of connectedness without a TUX interaction model that will allow them to control the mind, wallet and learning profile of the consumer across many, many product categories. In fact, the chart above, which shows the number of products to be connected by product category, reads like the global product catalog of Samsung.
The sheer number of devices, products and entire systems that Samsung produces and the fact that many will be connected in coming iterations places far more demand on Samsung’s management than Apple’s in terms of creating a unified UX design framework that will map across not a dozen or two dozen devices like Apple but across thousands of SKUs ranging from smartphones to vacuum cleaners29. It is therefore somewhat of a mystery as to why Samsung played this case so badly on several levels given the strategic impact of the verdict.
Does Anyone Have All the Pieces?
This specific matter of Apple v. Samsung is only one of hundreds of cases being litigated in the smartphone/tablet space at this time. The chart below shows some of the recent activity in terms of litigation, patent purchases, and licensing agreements taking place between parties in this technology space.
The most interesting point is that there are many other parties including non-practicing entities (NPEs), private inventors and other corporations that may hold key patents related to smartphone product design, UI design and infrastructure. Neither Apple, Samsung nor any other entity has the ultimate treasure trove of patents necessary to control this space.
Where Is the Prior Art?
Many of the patents that may be relevant in terms of prior art31 references flow from the mid to late 1990s. Searching this older body of prior art is not only time consuming, complex and costly but it leaves even the best, most recent intellectual property protection vulnerable to questions of both obviousness and invalidity. In fact, prior art accumulated by Samsung in this case, which was not allowed due to an error on the part of Samsung’s counsel32, is a case in point.
It is interesting to think about how that prior art found by Samsung might have or have not influenced the outcome of the trial had it been properly dealt with and allowed into evidence. In the end what this means is a landscape of scorched earth litigation that is not only complex, time-consuming and costly but highly unpredictable given that there are many patents and other forms of viable prior art still valid and relevant but that have not surfaced in the process of this litigation or other matters of strategic importance. This is a major problem for legal and development teams striving to create and protect innovative user experience design solutions like those at the center of this litigation.
Who Owns What?
The question of who owns the necessary IP to control the smartphone market is a point of considerable interest to lawyers and corporate executives, not to mention UX design and software development teams. The technical term for the underlying technology required to produce a successful (or even unsuccessful) smartphone system in known as “the stack”. The stack is divided into 4 primary layers, which together create technology to do what smartphones do. In his broadly read and widely quoted article in ArsTechnica titled Owning the stack: The legal war to control the smartphone platform33, Law Professor James Grimmelmann divides the stack into essentially 4 layers: the UI/application layer, operating system layer, the device layer and the cellular network layer.
He goes on to describe how the current wave of litigation is focused on two factors: 1) owning or controlling the entire stack (not possible, but every player’s fantasy) and 2) owning a critical portion of the stack that other layers touch or pass through, so that a patentee can hold others participating in the smartphone market hostage by way of licensing fees.
Up and Down the Stack
Professor Grimmelmann goes on to say essentially that the current litigation is bi-directional (within a layer or between layers). For example, Oracle vs. Google in operating systems as in this litigation where Apple is trying to control two critical layers of the stack: the UI/Application and the Product layers. Currently no single company has anything like control of the entire stack, although Apple has the greatest proprietary control of any smartphone player through control of three levels of the stack: the UI/Application layer (iOS interface design), Operating System layer (iOS) and Device layer (iPhone). The only factor keeping Apple from owning a complete stack is control of the cellular network layer held by the likes of Verizon, AT&T and other telecommunications companies. However, were Apple to use its massive cash balance (70+ billion dollars at last count) to purchase one of these cellular networks, Apple would then have the only complete smartphone stack.
When Cognitive Science Trumps Computer Science
Ultimately the lower layers of the stack will become commoditized and less valuable than what the customer ultimately interacts with: the overall user experience design (UX + Device). It is the combination at the center of this case that makes possible actual user engagement with the new, massively connected world around us. The most advanced thinking related to UX design suggests that operating systems are in most ways irrelevant when considering whether or not a given UX design is infringed.
It is a technical reality that most modern operating systems (iOS, Android, Java, etc. have a robust GUI layer that can be employed in the implementation of advanced UX design solutions. Against this conceptual backdrop the measure of infringement is a cognitive science problem, not a computer science problem.
In this regard there is going to be a shift in the value of IP toward UX design and device design and away from deep-level smartphone infrastructure. Ultimately, several billion users couldn’t care less about anything going on behind the glass. All they care about, and what they employ in making purchase decisions, is what happens at the glass, hence at the UX Design and Product Design layers. In this regard this case may be a precursor to a new process for determining core asset value from IP going forward.
The Current Business Realities of the Smartphone Industry
While the legal issues of this case are interesting, the more important question for those who create technological innovations and seek protection is: what is the business rationale for this litigation? One might assume that the case is simply about two corporations who have a strong dislike for each other. That is not the real story. Apple and Samsung share massive production commitments outside of this litigation. A look into the underlying business environment of smartphones shows instantly that this case is about two companies that together totally dominate the smartphone market and more specifically capture between them a staggering level of profitability from this product category. This is shown in stark relief by the chart below, which shows that Apple and Samsung combined capture over 95% of the profit from the sale of smartphones.
In this competitive landscape Apple’s market share combined with Samsung’s market share makes up essentially the entire market. All other manufactures combined realize a negative percentage of the profitability of this market, when taking into account the current negative operating profit value of once prolific companies like Motorola, RIM, and Nokia. One can see the staggering impact that failing to create a compelling user experience can have on a previous world leader in smartphones by tracing the path of Nokia in the chart above as they went from essentially owning the profitability of the smartphone market to almost zero. There is one key player not at the table in this litigation but one whose products go to the heart of the case. That is, of course, Google34.
The Massive Migration to Mobile
Over the past two years there has been considerable discussion about the trend toward consumers engaging on an increasing level with their mobile devices for tasks previously undertaken on desktop devices. This migration to mobile for more complex tasks by the consumer has been driven to some extent by the success of the iPhone User Experience and other devices of similar inherent ease of use. However, this trend known as “Mobile-Migration” has not been well documented in objective terms that could be mapped to reliable business implications. However, all that changed when Google recently released an important study titled The New Multi-screen World35.
The Future Is Not What It Used To Be
In that study one can discern both the structure and extent of mobile-migration and the importance of protecting and optimizing the user experience for mobile devices like that of the iPhone. Based on the Google study one can see in stark relief the staggering shift in user behavior toward engaging with smartphones first as their primary entry point for a wide range of tasks that have critical business impact. Nowhere in the study data is this behavioral change more apparent than in basic search, where now 65% of all tasks involving “Searching for Info” start on the smartphone. As can be seen from the summary chart below, other critical tasks are also being started on mobile smartphones and then continued on the computer and to a much smaller percentage on a tablet.
This data suggests (although we have not seen the raw data) that those who own a smartphone have made a fundamental transition to the mobile user experience for critical tasks. This removes, for the most part, the question of whether or not consumers will adopt mobile user experiences for tasks that are known to fundamentally impact business performance for companies that rely on connected user behaviors. Therefore, when taken from a strategic point of view one can see that the design and protection of a robust mobile user experience like the iPhone’s may actually determine the success or failure of a given business entity, even one as large as Apple.
The Perfect Storm
In this regard the case happens to have surfaced at exactly the same time that mobile user experience design has transitioned to a critically important interaction framework for users of such technology. One can also glean from this data the apparent connection between mobile and desktop user experience design and the related human performance requirement to minimize negative transfer between these two hardware platforms. This awareness is likely at the heart of recent developments by Apple and Microsoft related to common interaction frameworks for the PC desktop/laptop, tablet and smartphone.
Controlling the Trial Narrative in the Context of Brand Messaging:
At the highest level the case has been framed in the media based on the narrative of “The Good” (Apple: market leader and innovator) versus “The Bad” (Samsung: market follower and copier). The creation and propagation of this narrative was a primary and well executed legal strategy of the Apple litigation team37. This simple narrative abounds in Apple trial material including filings, trial testimony, visual aids and summation arguments.
An Old Idea Well Executed
There is nothing especially new or insightful about this approach since creating such a narrative is a basic litigation technique. However what is unusual in this case is the extent to which Apple was able to structure and control this narrative in the courtroom in a manner consistent with Apple’s brand strategy. The surprising fact is that this ability to control the highest-level narrative of the case was simply a reflection of how Apple has aggressively, and one can say brilliantly, controlled its brand narrative in the actual consumer marketplace. This clarity related to brand positioning in the marketplace, some have said, is responsible for premium pricing of Apple products.
However, in this litigation, it is clear that Apple’s control of the trial narrative was simply a extension of its branding strategy which has focused on delivering attributes of innovation and leadership to the market place through its brand delivery channels and the actual design of its overall user experience.
When Branding Meets the Legal System
Mapping this same brand positioning narrative into such a complex litigation is no simple matter and was likely a key factor in Apple’s success as the jury received a trial narrative consistent with Apple’s advertising and brand positioning strategy in the actual marketplace. This is not a trivial matter as jury members, no matter how media averse, had easily encountered the Apple brand messaging thousands of times prior to the case in various passive forms through the mainstream media including TV ads, billboards in the Valley, magazine advertisements, Apple retail store experiences or mall/store walk-bys. It is safe to assume that the jury had ample exposure to the global brand messaging of Apple for years prior to the case. It is well known from brand research studies that Apple has one of the top 5 simplest brands in the world, and that this simplicity is a desirable brand trait for which consumers are willing to pay a premium28. The psychology behind delivery of a consistent brand image is well known and when extended to trial-based communications reduces the jury’s likelihood of confusion during deliberation by removing a question of conflict between market brand positioning and the way a party is presented in litigation.
Giving Up the High Ground
Conversely, Samsung’s legal team39 failed to either alter the trial narrative or call into question Apple’s positioning of the “good” versus “bad” structure. Samsung had ample opportunity to provide an alternate narrative or to weaken Apple’s high-level structural messaging but seemed unable or even unaware of the importance of this aspect of the case. It is safe to say that this case demonstrates that in order to prevail in the protection of critical user experience IP, brand positioning needs to extend to trial strategy at the highest level.
What this means to those who develop software and UX Design innovations is that ultimately your brand will be on trial along with your products. Therefore, having a clearly defined and well articulated brand strategy in the consumer or commercial marketplace is likely to be very helpful when defending against issues of infringement or when asserting your IP against possible infringers. To be clear this means that those developing UX Design software-based solutions should not overlook the importance of developing a simple, clear and meaningful brand strategy based on a simple messaging structure.
All of this assumes your legal team can carry the narrative to the jury as Apple did in this case and that you have a positive narrative that is supported by brand positioning that actually delivers attributes that consumers find aligned with the functionality of your total user experience. In other words the best brand strategy possible will not replace a dysfunctional user experience either in the marketplace or at trial.
The Persistent Question: Did the Case Damage Innovation?
In the final analysis we are left with the question that has consumed more blog bytes than any other issue related to this case: “will the verdict have a negative impact on innovation?” The answer is almost certainly no. There is one important reason.
From this case a new strategy for product development and IP protection has emerged. The change dictates a shift to innovation to total user experience design. This is a fundamental change that has now been shown to provide companies with a massive core asset in a world that is rapidly becoming an interconnected lattice of billions of devices where product design, usability and ease of learning are the most important factors in achieving business success.
Ease of Use Matters, the Operating System Does Not
What the Case Teaches
This case marks the beginning of a very different future for teams tasked with product and software development for this category of devices. Below is a partial list of key legal and development strategies flowing from this case.
It is important to note that this litigation surfaced in parallel with several important trends that together are setting in place a perfect storm of new technology and massive consumer demand for the next generation of mobile devices and related systems. In the end this case is simply a mileage marker on a new and exciting road to a world of massively connected mobile devices where the user experience is all that ultimately matters. Protecting such innovations, in light of the available protections, will require as much innovation as the design of the devices themselves.
8 Key Insights from the Apple v. Samsung Case
- Develop products and services in this space that focus on the total user experience (TUX): The future of robust IP protection for products in this category is going be determined by how well your total user experience is protected. In this regard, focus innovations on ALL critical customer touch points covering hardware and software interactions.
- Create clusters of IP protection that capture the total user experience (TUX): IP practitioners should make use of all available forms of IP protection including design patents, utility patents, copyright, trademark and in litigation, trade dress, to create an interlocking set of protections that cover the look, feel and function of your products and services.
- Develop a robust interactive brand that supports your overall TUX strategy: Consider carefully protecting core brand positioning elements and messaging as part of the overall IP protection strategy. In the best user experience design solutions in the future your brand will be delivered by (and be indistinguishable from) your total user experience.
- Practice tighter integration between legal and development teams: Waiting until an innovative new user experience is complete before developing a legal strategy for protection will no longer be productive given the large body of prior art, rapid release schedules and litigious nature of the marketplace.
- Focus on “mobile-first” design strategy: The larger trends which are surfacing in parallel with this litigation strongly suggest that business-critical user interface and product design solutions should implement a “design-for-mobile-first” strategy that is then migrated across the other 3-4 screen types known to capture user behaviors.
- Do not rely on specific software operating systems or platforms for user experience design IP innovations: This is more complex than it sounds since good IP strategy may well include utility patent filings. However, it is critical to think of TUX design innovations as platform agnostic.
- To the extent possible secure trade dress rights through litigation: This is an issue for the legal team. If you are going to go for litigation consider doing so based on trade dress as this form of legal protection is likely the most robust option. Be aware of the complexity of such cases before proceeding.
- Use design patents to secure visual design protection on UX design solutions: Consider the visual (non-functional) aspects of your solutions absolutely worth protecting and make sure that your IP counsel understands design patent filings and related methods. There are many ways to employ design patents beyond those adopted by Apple in this litigation.
Charles L Mauro CHFP
President / Founder
Find out more about Charles L Mauro
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Detailed Assistance by Emily Fisher MSE
We would like to thank the following colleagues for review of drafts of this post: Rob Tannen PhD, Chris Carani Esq, Rob Katz, James Grimmelmann PhD, Erik Grimmelmann PhD, Mark Moore Esq, Eric Hopkins PhD, Hilary Hinzmann, John Blake
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1 In the context of this article, “UX” refers to the user’s experience with a product, process, or system. UX is differentiated from product design and user interface design in that UX refers to the combined experience of these and other aspects of the product or service, such as utility, ease of use and efficiency.
3 Christopher V. Carani, Esq. Partner at McAndrews, Held & Malloy Ltd in Chicago. Attorney Carani is a CNN Legal Expert/Commentator and widely quoted attorney related to this case. Mr. Carani holds an undergraduate degree in engineering from Marquette University and a JD from the University of Chicago. He is a leading litigator of design patents and related IP matters. http://www.mhmlaw.com/profile/ccarani
4 Robert Katz Esq. Partner at Banner & Witcoff in Washington, DC. Mr. Katz is a leading attorney with extensive experience in complex UX and product design patent prosecution and enforcement. He works with leading corporate clients on a wide range of UX design and product design IP matters on a worldwide basis. Mr. Katz was previously a patent examiner at the USPTO and holds undergraduate degree in Mechanical Engineering from Carnegie Mellon University and a JD from George Washington University. http://www.bannerwitcoff.com/rkatz/5 Charles L Mauro CHFP, Moderator: Mr. Mauro is President of MauroNewMedia founded in 1975 specializing in UX and Product Design, usability engineering and new media strategy. He holds numerous US and international patents covering UX and product design. He has been responsible for complex UX design solutions currently running on major world markets. Charles is the Chairman of the Design Protection Section of the Industrial Designers Society of America and is the IDSA liaison to the USPTO for Design Day 2011-12. He has received awards and citations from the Human Factors and Ergonomics Society, Association of Computing Machines and, NASA. He has been quoted in Science, New York Times, BusinessWeek, Wall Street Journal. He served as expert witness in over 50 cases covering GUI design and product design. Mr. Mauro recently represented leading corporate clients in related mobile UX cases. Mr. Mauro is NYTECH UX Design Track founder and session moderator.
8 Anton A. Huurdeman (31 July 2003). The Worldwide History of Telecommuncations, John Wiley & Sons, pp. 176-177. ISBN 978-0-471-20505-0. Retrieved 7 August 2012.
11 Total User Experience (TUX) in the context of this discussion refers to the combined look, feel and function of a product comprised of the physical product design, screen design, interaction design/related behaviors and the graphic look of the screens of the device. In the larger context TUX refers to the customer’s total experience with a product or service as defined by comprehensive task analysis covering all critical touch points that impact the user’s perception, use and maintenance of the device.
12 From “How Recent Critical Trends in Industrial Design Will Impact Design Patent Prosecution and Defense” presented at Fifth Annual USPTO Design Day (2011) http://www.idsa.org/charles-mauro-and-lawrence-murphy-speak-fifth-annual-uspto-design-patent-conference
25 ‘‘in the eye of an ordinary observer, giving such attention as a purchaser usually gives, two designs are substantially the same, if the resemblance is such as to deceive such an observer, inducing him to purchase one supposing it to be the other, the ﬁrst one patented is infringed by the other.’’ Gorham Co. v. White, 81 U.S. 511, 528 (1871)
37 http://www.mofo.com/ and http://www.wilmerhale.com/
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