updated 04:20 am EDT, Fri June 1, 2012
May use Cheech and Chong 'test' for infringement
The ITC judge overseeing Apple's ongoing patent infringement case against Samsung's Galaxy Tab and smartphone lines referred to a famous comedy routine by the comic duo Cheech and Chong as a test for infringement, a possible hint that the judge is favoring Apple's claims. The test refers to a straightforward way to identify a copy: "Does it look like it, feel like it, smell like it?" Apple has asserted that Samsung "slavishly copied" the look and feel of various Apple products.
Samsung's claim that it researched such things as tablet and smartphone design on the contested items, which include the Galaxy Tab, for "decades" and spent $3.5 billion in research only to come up with designs remarkably similar to the iPhone and iPad (see below) strains credulity, but in its defense the company has also pointed to its long history in the industry (prior to Apple's entry in the market) and differing designs on other products in order to establish the premise that it didn't need to copy Apple's designs.
Samsung's attorney argued in court yesterday that the company "is also known for its [own] designs," some of which have been "compared favorably" to Apple designs. Apple told the court that Samsung was "not content to copy the overall design and interface ... [and] has copied the smallest details of the iPhone," said attorney Harold McElhinny.
Judge Thomas Pender's reference to the Cheech and Chong routine was meant to lay out the criteria he will use to determine infringement. If serious, it would likely foreshadow a Samsung loss, as the company has already been found guilty of infringement on the designs in Australia and Germany. In Apple's first attempt at getting the Galaxy Tab banned in the US, the judge memorably held up the two tablets (the iPad and the Galaxy Tab) and challenged the Samsung attorneys to pick which was which. They were forced to admit they could not easily do so.
The 1970s routine Judge Pender refers to has the comics come across some dog feces and are not sure if that's really what it is. They decide to pick it up, examine it, smell it, and finally taste it before determining that their initial judgement was correct, and express their happiness that they did not step in it. The reference would tend to suggest that the judge will use cosmetic appearance and other elements such as icon design to simulate how some consumers might be confused between Samsung's and Apple's devices, and approach that is likely to favor Apple.
The ITC case is particularly important, since it can lead to direct bans of products and weighs heavily in other court decisions. While most of the infringing products have been replaced with newer models (including a special version of the Galaxy Tab specifically designed to work around admitted Apple patent violations in other countries), a decision against Samsung would still be very damaging and give Apple strong ammunition to use in the other actions the two companies are involved in.
Samsung itself has its own ITC patent case against Apple that will be going to court around the same time. Judge Pender expects to hear the full case on the alleged Galaxy Tab and various smartphone models that Apple claims infringe on its patents on June 6 and rule sometime in early October. Judge James Gildea will hear the case in which Samsung claims Apple has infringed on some of Samsung's patents. At the time of the filing last year, the move was largely seen as defensive.
Gildea has previously ruled against Apple in an ITC case involving HTC, which bought a graphics company called S3 primarily to attack Apple after S3 scored an initial patent win against the company. Though Apple lost the initial ITC ruling (Gildea found that Mac OS X violated two S3 patents, but iOS did not), the judgement was overturned on appeal by the full ITC panel. HTC later admitted it was "reevaluating" the S3 purchase after the loss.
HTC has yet to score a permanent legal victory against Apple, but will participate in court-ordered settlement talks in August to resolve its current patent disputes. Judge Gildea is expected to hear the Samsung case from June 4-15.
Outside the ITC disputes, Apple has filed for a ban on sales of the Galaxy Tab in the US after a California appeals court vacated an earlier ruling that Apple's infringement claims against the Galaxy Tab had no merit. In the now-vacated ruling, Judge Lucy Koh agreed with Apple that Samsung was copying it, but said the claims didn't merit a sales ban. A ruling on that case may come as early as June 7.
With the court cases, possible rulings, Apple's Worldwide Developer Conference and possible new product announcements coming soon, June is shaping up to be a pivotal month in Apple's history.
iPad (top) versus Samsung Galaxy Tab 10.1 (bottom)
Photo via Jose Maria/Flickr