First, let me apologize for this long post. I saw several issues being mixed together, along with misunderstanding of patent laws. Hopefully this will clarify the issues in these ongoing cases -- this should help the careful & astute readers to understand why things are the way they see them.
Originally Posted by appelate
However, If I was Samsung, I wouldn't have been trying to argue that they came up with the Galaxy S design completely independent of Apple (or anyone else). I would have been trying to say that the F700 plus other manufacturers designs were heading in a certain direction
if a design patent is granted and exists, there is NO reason another company/person would be allowed to copy, mimic, duplicate, or use the protected ideas. Whether the industry or their internal designers were headed in that direction or not -- that's irrelevant. Another reason this (Samsung's copying) is so egregious is that every such granted patent/protection is published and made available to the entire world almost immediately after granting. This serves as a "public notice" to everyone, that this "design" is now protected and thus it cannot be used. This would have happened when BMW came out with their unique-looking design for headlights.
Because of this "public notification" process, every large company has within their legal/IP department people who keep an eye out for all such newly granted patents applicable to their industry/product classification. So, as soon as Apple's design patent was granted, Samsung's legal/IP team would surely have received details of that patent. The only way they wouldn't is if they had their "eyes closed". So.... when they learned that these features were protected.... yet they still continued to use the same protected features and several weeks/months later they released and offered for sale their new phone -- well, they had ample warning and notice to understand they were treading on someone else's protected turf. Yet they still released their infringing products.
The reality is, Samsung knew Apple's design had consumer appeal, it was PROVEN (through skyrocketing sales) that consumers liked their design. Samsung also knew (as do most companies) that some consumers would confuse their product for Apple's (e.g. the elderly, or someone who was fooled by a sales associate). And Samsung also knew that the perceived value of their product would increase IF it resembled a popular sexy chic competitor-product. So Samsung had many reasons to intentionally copy Apple's design.
The only reason Samsung had for not copying Apple's design was that they might be sued by Apple. Samsung knew this would be expensive for Apple, and they would sue only if Samsung's product became mildly popular (a potential threat to Apple sales).
But by the time it became a threat to Apple's sales, and by the time Apple sued and the lawsuit came to trial would me months/years. During these months/years, Samsung would enjoy the benefits of increased market penetration and descent revenue -- all pluses.
So, Samsung (or any infringer) looks at this type of equation, to decide if it should infringe on their competitor's patent/IP:
(Cost of R&D to develop a non-infringing design)
+ (Increased revenue/sales by confusing consumer with their similar product)
+ (Increased revenue/sales during months/years that Competitor doesn't sue)
+ (Increased revenue/sales while lawsuit is winding its way thru courts)
+ (Value of Decreased revenue/sales for Competitor, while lawsuit isn't settled/closed)
+ (Value of Increased Market Share gained prior to lawsuit verdict)
+ (Value of their Competitor's Decreased Market Share due to their infringement)
+ (Value of free publicity received due to lawsuit -- free marketing)
+ (Value of Competitor's other patents they could get licenses to if they "settle")
+ (Value to their future business if they win/settle the infringement lawsuit)
- (Value of their own patents they would have to license to Competitor, if they "settle")
- (Cost to defend lawsuit)
- (Monetary fines/penalties if they're found guilty)
- (Lost Goodwill if they're found Guilty)
- (Loss of reputation because consumers consider them copycats)
+/- (Tax implications of winning/losing/settling the lawsuit)
If the result of this equation is positive (greater than 0), then it would be beneficial for them to copy/steal their Competitor's ideas/IP. In many cases today, this equation DOES result in a "positive" --- and that's why we have today so many companies stealing ideas from their competitors.
This equation also shows that a large enough company (with enough financial resources) such as Samsung -- can effectively have a net "win" in such lawsuits if they prolong a case (through motions or appeals), long enough that either (a) their competitor tires/gives up, or (b) their infringing product (and the underlying protected IP) becomes obsolete or unvalued -- so that any penalties would be severely reduced. There are many strategies used by infringers to lessen potential fines/penalties, such as showing "reduced sales" or "reduced profits" or claiming a later "start date of infringement" or claiming/fighting for a fewer list of "infringing products" -- such that even if they lose the lawsuit, their penalties are minor.
We are seeing these same tactics in this and related Samsung cases, where they are claiming "reduced sales" of the Galaxy Tab, and fighting for a reduced list of "infringing products", and using the likelihood of an appeal to delay any penalties while they rack-up sales during the lawsuit/appeal years.
Originally Posted by appelate
the industry does a certain amount of borrowing of ideas within itself. For example, when flip phones and clamshells became popular with the Motorola Razr, almost every handset manufacturer jumped on that bandwagon and released a flip phone. And that was the dominant form factor for a good while. To my knowledge, no one tried to hold the industry to ransom over patents for that design.
Two issues affect how much "borrowing of ideas" occurs in an industry.
First is the patentability of (the ability to protect) a specific trait/idea/design. This has changed over time, and the trend since about the 2000s is that most governments now allow protection of more types of designs/ideas than was possible in earlier decades.
When the mobile phone market "came up" with the design of a flip-phone, this was generally not considered something that was patentable or protected. So, most companies (who wished to create a flip-phone) never bothered to apply for protection of their "flip-phone idea". Most companies (their legal/IP departments) believed it would not be granted, so they never applied. Maybe there were some that did apply (I'm not aware of any), but these were likely denied. At the time, one or more utility patent(s) would have been more likely -- which would protect the idea/technique of "how to manufacture a flip-phone", or would protect any unique invention/assembly that might be required to allow a flip-phone to "bend/fold" reliably.
Second is the willingness of a company to actually protect its ideas/designs/inventions. Not every company will protect its ideas, and not every idea a company has is protected/protectable. There are costs associated with obtaining (being granted) IP protection, along with costs to maintain (keep in force) some types of granted patents/IP, as well as costs to legally protect ones IP. Also, there are unknowns and vaguaries in patent/IP law that makes it a complex and expensive effort. IP protection is also for a limited time. So not every idea/invention is worth IP protection -- and the "worthiness" also depends on the size of the company's legal/IP budget.
Your example of flip-phones becoming ubiquitous was due to a combination of both above factors: patentability of some designs were not clear in the 1990s (when flip-phones were introduced), and most companies did not consider it possible/needed to protect this idea. For this reason, the design elements of a flip-phone was not protected by any company (however there were utility patents granted for specific implementations of a flip-phone, such as Motorola's).
If the design idea of a "flip-phone" had been granted as a patent to any company/organization, we would surely not have had so many different versions.
To give you a valid comparison as to Apple's claims, their design patents protect elements similar to (in the automotive industry) BMW's headlight designs or Audi's front grille or Jeep's front grille. There are no design patents that would protect (and thus prevent) a generic "grille" or "headlight" idea. That's why all cars have grilles and headlights -- because design patents are not broad/general to prevent multiple implementations. They are granted if they describe very specific detailed elements. Design patents often have many "and" terms, making them VERY specific to a particular look. It's not possible for another company to "accidentally" copy a protected design. This is part of the criteria (obviousness or uniqueness) used to consider validity/granting of a design patent.
If you don't understand how specific a design patent gets, you can check this page [=http://nicklazilla.tumblr.com/post/29202801252/samsung-is-apples-biggest-fan
] that shows examples of Apple's protected design and Samsung's blatant copies. There's also a fact-sheet Apple released that lists the very specific marks/features that their patents protect. It's unlikely a competitor would accidentally hit on the same combination of features that Apple defined and has protected.
Originally Posted by appelate
I really believe Apple's approach here is a poor one -- it's a nasty, angry, aggressive attitude. My hope is that they are not rewarded for that attitude
That is your opinion, based on strong emotions fueled by a misunderstanding of IP protections, a misunderstanding of US and International laws, and a misunderstanding of common business practices.
Apple has done the right things -- years ago they had applied for protection of their "ideas" and "designs". They applied for protection to many countries/markets, and those countries/markets agreed and did give Apple protection of their unique ideas/designs. Those patents would have been granted ONLY if each country's/market's patent/trademark/copyright authority considered the Apple ideas to be unique and worthy of protection. We know now that most (maybe all?) of those countries/markets did give Apple the rights to protect its unique designs. And Apple was the first to receive these protections.
Then, along comes Samsung (and others) who chose to market their new products that copied the ideas and designs that Apple had had protected.
If you feel that Apple should not be protecting aspects such as a "grey region at the bottom of the screen, containing a group of four icons"...... if you believe this is an obvious and "generic" idea that should be allowed to be copied by anyone...... then I would say you are against the entire notion of design patents. Most governments and companies disagree with you and consider such protections important.
The bottom line is this. Samsung had the same rights and abilities to protect it's design -- but it did not. The reasons why it did not are not relevant in a legal context. Apple protected its very unique non-obvious design elements, Samsung did not, and Samsung marketed products that infringe on Apple's design IP AFTER Apple was granted those IP protections. Case is that simple.
The only issues are:
1) Does Samsung's design (very specific design elements) mimic or copy or duplicate Apple's protected specific design elements?
2) And: If yes, was it intentional?
Originally Posted by appelate
the jury will make that decision.
Yes, we might find out in as little as a week.