Its Apple Vs. Samsung

It was on April 2011 that Apple Inc. filed a petition againt there 'arch-rival, the Korean Company,Samsung;, the latest in a long line of IP lawsuits against Android device manufacturers. ( Apple v. HTC, Apple v. Motorola, Microsoft v. Motorola, Microsoft v. Barnes & Noble.) The case is remarkable for several reasons, not least because Samsung is one of Apple's critical component suppliers: the Korean giant manufactures everything from DRAM and SSDs for MacBook Pros to the A4 and A5 processors in the iPhone, iPod touch, Apple TV, and iPad. That relationship doesn't seem to have softened Apple's tone; the company's complaint bluntly says "Instead of pursuing independent product development, Samsung has chosen to slavishly copy Apple’s innovative technology, distinctive user interfaces, and elegant and distinctive product and packaging design, in violation of Apple’s valuable intellectual property rights."


The immediate takeaway is exactly as Florian Mueller tweeted: Apple isn't afraid to sue anyone when it comes to protecting its IP. You might also surmise that Apple demanded Samsung stop infringing its IP or pay a royalty and Samsung refused; a filed complaint is generally just evidence that more cordial negotiations failed. But that's the easy reaction to the simple fact of Apple suing Samsung. The real dirt is in the complaint itself, which was filed on the 15th and made public today. It's actually quite interesting, both because of the claims themselves and their structure — this lawsuit is as much about TouchWiz and Samsung's penchant for lifting design elements as it is about the core of Android. We've got a copy, which you can download right here — grab it and follow along after the break.


BACKGROUND


The background section of Apple's complaint has a couple interesting nuggets in it: Apple's sold "over 60 million" iPod touches as of March 2011, which is the first time a specific number has ever been broken out for that device, and we're also told that 108m iPhones and 19m iPads have been sold. What's more, Apple spent more than $2 billion advertising the iPhone, iPod touch, and iPad during its fiscal years 2007 to 2010.


It's in this section that Apple also lays out what it considers to be its protectable intellectual property: seven utility patents, three design patents, trademarks on several iOS system app icons, and a host of trade dress registrations on the iPhone, iPod touch, iPad, and the packaging that each comes in. (Yes, the packaging — companies spend millions designing gadget boxes, after all.)


Its also told that Apple views the Samsung Captivate, Continuum, Vibrant, Galaxy S 4G, Epic 4G, Indulge, Mesmerize, Showcase, Fascinate, Nexus S, Gem, Transform, Intercept, and Acclaim phones as infringing its various IP, as well as the Galaxy Tab. It's also clear Apple has particular scorn for TouchWiz'd Galaxy S devices, saying "The copying is so pervasive, that [they] appear to be actual Apple products." The rest of the background section is really just the foundation for Apple's actual claims.

THE CLAIMS


Here I am going to take the claims one-by-one, but structurally it's notable that trade dress is the first listed claim, as claims are traditionally ordered by some combination of perceived strength and importance. Apple was forced to focus on deeply-technical underlying Android system patents when it sued HTC and Motorola because Sense and Blur are highly differentiated from iOS and the actual products have unique hardware and packaging designs, but Samsung all but invited these additional and somewhat more subjective claims by hewing so closely to Apple's conventions. And at this stage of the game, more claims generally means more liability.


First claim: Trade dress infringement under 15 U.S.C. § 1125


You're probably familiar with patents, copyrights, and trademarks, the three main types of intellectual property. Trade dress is the wonky red-headed step-cousin of the family that fills the gaps between the three; you might think of it as a trademark on design elements that trigger consumer recognition. (That's a vastly simplified explanation, but it's good enough for our purposes.) Trademarks and trade dress are all about protecting consumers from being deceived in the marketplace — the idea is to clearly indicate the source of a product or service.


Think of it this way: the trademark "iPhone" is a made up word that consumers recognize, so Samsung can't call its phones the "Galaxy iPhone" because that would confuse consumers about the source of the product. Similarly, Apple's claim is that the iPhone's box and design scream "Apple" to consumers just as strongly as the word "iPhone."


Second claim: Federal trade dress infringement under 15 U.S.C. § 1114


This second trade dress claim is the more simple and direct of the two, because it deals with three specific iPhone trade dress elements Apple's registered with the US Patent and Trademark office. That means Apple's already convinced the USPTO these elements are distinctive and protectable; with the first claim Apple will have to start from scratch.


Third claim: Federal trademark infringement under 15 U.S.C. § 1114


This one's pretty simple, and on its face it looks like the strongest claim of them all: Apple's registered trademarks on several iOS system icons, and TouchWiz includes six icons that look almost exactly the same. The facts here literally line right up — we'll put the iOS icon on the left and the TouchWiz icon on the right.


It's going to be far harder for Samsung to argue out of some of these — in some cases, like the phone icon, the similarities are impossible to ignore. You might argue that the design of the phone icon is ridiculously trivial and obvious, but consider the flipside: Apple can argue just as persuasively that Samsung had a million options for a phone icon and instead chose a white handset resting at an angle on a green gradient background. Samsung's lawyers are going to have get creative with this one.


Fourth claim: common law trademark infringement


This one's a catch-all — it's there to pick up the pieces from the federal trademark claims and to strengthen the claim on the iTunes icon, which is still pending registration.


Fifth claim: Unfair business practices under the California Business and Professions Code


This is a state-level version of the trade dress and trademark claims - it's there to pick up the pieces in case the federal claims somehow don't pass muster. I'm not a California lawyer, so I'm not too familiar with these statutes — let me know if I missed something important here.


Sixth claim: Unjust enrichment


Yet another state-level claim that feels like a catch-all in case everything else fails — Apple's arguing that whether or not Samsung's conduct rose to actual infringement its trade dress, trademarks, and patents, Samsung still unfairly profited by copying Apple's work.


Let's skip ahead here and deal with the design patents now as well, since they're of the same theme — you might as well call this bundle the Galaxy / TouchWiz claims, since they're all to do with Samsung-specific hardware and software.


Claims fourteen, fifteen, and sixteen: infringement of design patents


Just when you were getting your head around trade dress, we're throwing design patents into the mix. There's actually a pretty simple relationship between the two — if trade dress is all about the product design's relationship to the consumer, a design patent is all about the design of the product itself. Think about it like this: if you designed a new phone with a novel design, you could get a design patent. Once you started selling it and your customers started associating that design with your products, you'd be protected by trade dress. (Again, a gross simplification, but we're aiming for broad contours here.) And design patents expire just like every other patent, while trade dress lasts as long as the item is in commerce. 


The rule for design patent infringement is relatively simple: if the two designs are substantially similar enough to trick an ordinary person into thinking they're the same, it's probably an infringement.  


WHAT HAPPENS NEXT?


So that's the rundown — the sixteen specific claims Apple's making against Samsung, as well as what it's asking the court to do. Taken as a group, it feels like a remarkably solid case — Samsung can't just up and countersue Apple with its own patents and hope to walk away with a handshake and a cross-license because of the various trademark, trade dress, and design patent claims. How the company decides to deal with those issues remains to be seen; there's no question in my mind that Samsung designed TouchWiz to look and feel as much like iOS as possible, and then marketed it as such.


In that context, Apple's Android-specific patent claims almost seem like a foundation on which to build the case against TouchWiz, not the indirect swipe at Android itself that I've come to expect from these lawsuits. Depending on the strength of Samsung's promised reply and countersuit, the guess is that Apple might be willing to eventually settle the patent claims but will push the trademark and trade dress claims as far as it can — if Apple loses those it's open season on the iOS aesthetic. You can bet Steve Jobs and Tim Cook aren't about to let that happen.


Compared to the almost standard patent-vs-patent rocket-docket-plus-ITC lawsuits we've been seeing across the industry, this case is definitely a novelty.