|By Maureen O'Gara||
|August 14, 2012 02:00 PM EDT||
From the outside looking in on the so-called "trial of the century" - and bearing in mind that it's only maybe halfway through - but Samsung looks royally screwed.
It should have paid more attention when Google told it in 2010 that its tablets looked too much like iPads and should be made "noticeably different." Apple's got the Samsung e-mail saying so.
It's also got top designers' formal evaluations telling Samsung the same thing about its phones.
And better yet it's got a seemingly damning 132-page "Relative Evaluation Report" - that Apple got admitted into evidence Tuesday over Samsung's strenuous objections - showing the Korean company's product engineering team dissecting every element of the iPhone in 2010 from packaging design to physical appearance to user interface to operating system architecture to browser, home screen and built-in apps and comparing it side-by-side with their original Galaxy S.
Apple says it's proof Samsung made a conscious decision to make its product look and work more like the iPhone.
There's a copy of the report with its 126 slides and "Directions for Improvement" like "Remove a feeling that iPhone's menu icons are copied by differentiating design" at www.scribd.com/doc/102317767/Samsung-Relative-Evaluation-Report-on-S1-iPhone.
Samsung claims it's standard competitive analysis and questions the originality of Apple's so-called inventions and rights to an icon of a telephone receiver for a phone app or a "rectangle" shape, rounded corners and black borders. Samsung also claims its widgetry was "evolutionary."
Apple says this is where it gets its "slavishly copying" claims from - down to its icons and an infringement of so-called "trade dress" rights, which is legal jargon for distinct appearance or design patents.
Susan Kare, a former Apple graphics designer from back in the original Mac days who was paid $80,000 by Apple to appear in court the other day as an expert witness, said the icons on the companies' competing products are "confusingly similar" and testified that she mistook a Samsung smartphone for an iPhone when she visited the office of Apple's lawyers.
"There was a big conference table with many phones on it, and some of them were on," Kare said, as repeated by Reuters. "I could see the screen. I went to pick up the iPhone to make a point about the user interface, and I was holding a Samsung. I would usually think of myself as someone who is pretty granular in looking at graphics and I mistook one for the other," she said. "In addition to my formal analysis, I had the experience of being confused."
On cross-examination Samsung's lawyer booted up a Samsung phone so Kare could see that a Samsung logo came up first. He said most phone icons were similar. She retorted that the Blackberry Torch had many of the features of the iPhone but Apple doesn't think it infringes.
Peter Bressler, a big-time product designer with numerous patents and another expert witness for Apple, testified that the most common reason consumers return Samsung's Galaxy Tab 10.1 to Best Buy is because they thought they bought an iPad 2.
He also took the jury through three Apple patents he thinks Samsung infringes and tried to block Samsung lawyers from dwelling on minutia, insisting that the widgetry looked the same to a consumer.
In the section of the Samsung report about Apple's browser, Samsung's people noted that the iPhone has a double-tap zoom function. Scott Forstall, head of the iOS mobile operating system, testified last Friday that he invented it to avoid having to constantly manually pinch and zoom a web page's text into the center of the screen, a key capability that Apple advertised when iPhone launched in 2007. Samsung copied it.
Apple is fighting to turn a temporary injunction banning the sale of Samsung's tablet in the US made permanent and enforce a similar ban, now stayed, against Samsung's market-dominant phone. It has also made multibillion-dollar damages claims.
If Apple wins, the decision could have a halo effect on the other litigation the two firms are currently engaged in on four continents.
Meanwhile, Samsung has to live with bloggers calling the Galaxy S III an ugly phone "designed by lawyers" to avoid infringement much like the upcoming Galaxy Note 10.1 and comedian Conan O'Brien poking fun on television at "Samsapple." See http://mashable.com/2012/08/08/conan-obrien-apple-samsung-patent-video/.
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