Apple-Samsung jury may just eyeball the devices to reach a verdict

Apple and Steve Jobs’ strategy of obtaining intellectual property protection for every and anything possible may be about to pay big dividends in the “patent trial of the century” that is currently taking place in a federal courtroom in San Jose, California. Apple is seeking over $2 billion in damages (which can be trebled if Samsung’s infringement is found to have been willful) and an injunction barring the sale of certain Samsung smartphones and computer tablets in the United States.

Most patent trials can be tedious and boring affairs involving complex technologies and the construction of difficult to understand utility patents. However, by protecting its well-known products using all types of intellectual property, including design patents, Apple has been able to turn what could have been a month-long patent litigation trial involving a number of highly technical patents into what it hopes is a simple referendum on whether Samsung copied the appearance and graphic user interface of the iPhone and iPad. Considering the similarity of Apple and Samsung products, Samsung may have a difficult time convincing the jury that there is more than meets the eye and that Samsung should not be held liable for infringement.

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There are two general categories of patents that can be obtained from the United States Patent and Trademark Office, utility patents and design patents. Utility patents are the most common type of patents and generally involve the way an invention is used and works and may be granted to anyone who invents a new and useful method, process, machine, device, or any new and useful improvement of the same. In this case, Apple is asserting that Samsung infringed three Apple technical utility patents involving features of a multi-touch user interface.

While design patents are litigated far less frequently than utility patents, and many companies do not even seek design patent protection, infringement of a design patent may be far easier for a jury to understand. A design patent protects only the ornamental appearance of an invention, not its utilitarian features. The general test for infringement for a design patent is relatively simple: Does the alleged infringer’s product design appear substantially the same as the patentee’s design? While a patentee can buttress its evidence of the similarity of designs through the testimony, for example, of industry observers, consumers, and business partners, jurors can use their own eyes for a side by side comparison and decide for themselves if the products look substantially the same. It certainly does not depend on understanding highly complex technical matters.

In addition to the utility patent infringement claims, Apple has accused Samsung of infringing a tablet design patent and graphical user interface patent for the iPhone. Thus, instead of having to convince the jury through highly technical evidence that Samsung infringed a number of utility patents, Apple can argue to the jury that the products are so physically similar that Samsung must have copied the designs from Apple and that the jury can make this determination with its own eyes.

In comparison to the relatively easy-to-understand Apple design patents, Samsung’s counterclaims against Apple involve Samsung’s patents covering the inner workings of cellphones. Such claims are technologically complex, and two of Samsung’s patents are “standards-essential patents,” which protect inventions that are incorporated into broader technology that an entire industry has agreed to use. Samsung alleges that it offered to license two standard-essential patents to Apple on fair terms, as legally required but that Apple refused and used the technology for its iPhones anyway.

While the law in this area is unclear, a recent decision by an influential jurist suggested that remedies for claims of infringement of a standard essential patent are limited.

The Apple-Samsung trial is expected to take a month. Both sides are expected to offer evidence supporting their claims and defenses from a variety of sources. Much of the evidence will be highly technical, and despite the best efforts of the attorneys on both sides to make the technical details comprehensible to a jury, the outcome may come down to simply whether the jury believes with its own eyes that Samsung copied the appearance of the iPhone and iPad.

Peter Toren is an intellectual property litigator and computer crimes expert with Weisbrod Matteis & Copley in Washington, DC.

[Image credits: Apple, Samsung]

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