updated 02:41 am EDT, Tue August 7, 2012
Samsung copied, but not enough to confuse consumers, expert says
Peter Bressler, former president of the Industrial Designers Society of America and himself the head of an established industrial design group, was called to the stand by Apple today as an expert witness in the Apple vs. Samsung trial to testify about three specific Apple patents. In his testimony, Bressler agreed generally with Apple that Samsung had copied many specific elements of the iPhone in its' post-iPhone smartphones. Under cross-examination, however, Bressler was less specific about how to judge copying.
Bressler was asked by Apple's lawyer to describe and explain three of the four design-related patents for the iPhone and iPad that Apple is suing Samsung for copying. He contended that after studying a number of Samsung devices, he believed that a dozen of them -- the Galaxy S and S II smartphones, all models of the Galaxy Tab and other Samsung units -- do infringe on the three patents he was asked to explain. He referred to them as "substantially the same."
As part of Samsung's claim that there was "prior art" of devices that covered one of the patents (the so-called '677 patent, which covers the overall look of the front of the iphone), Bressler also examined Samsung's examples of prior art and found them sufficiently different from Apple's design as to have no bearing on the validity of Apple's patent.
Bressler was also asked about "trade dress," the overall aesthetic of a brand's products that make them distinct in the market (so, for example, no-one would confuse a Ford logo with a Chevy logo, even though both make vehicles that are broadly similar). He said that Samsung could have opted for designs that were markedly different and distinct from Apple's overall direction (as most manufacturers had done prior to the iPhone's arrival) but chose not to.
However, under cross-examination from Samsung attorney Charles Verhoeven, Bressler admitted that consumers were "unlikely" to confuse the two brands, despite Samsung's clear intentions in modeling its devices to look as much as possible like Apple's products. Apple is asking for $2.5 billion in damages from Samsung for copying its design patents. Samsung has alleged that Apple has copied some of its wireless communication patents, but is generally seen as having a weak case and potentially abusing its FRAND commitments in the countersuit.
Bressler is himself the listed inventor or co-inventor on some 70 patents, and told the court that industrial designers were trained to notice small details -- or similarities -- that that "work together to form the overall impression that the usual consumer would view. [Consumers] may see these details, but they tend to be somewhat subconscious to the overall view." He did say under questioning that he had not personally witnessed any consumers who were confused about the brand they were buying, but pointed to a Samsung-led study of Best Buy customers that indicated cases of Samsung returns because consumers thought they were buying a genuine iPad. In some cases, the term "iPad" or "iPhone" has been confused by buyers to mean the generic item, ie "tablet" and "smartphone."
The designer provided a declaration to the court [PDF link] showing why elements of design that Samsung had insisted were dictated by function, such as a rectangular shape, rounded corners and a flat glass display, were conscious design choices rather than inevitable. He added that he found evidence that Samsung had considered alternative designs but decided to copy the iPhone instead.
Bressler bristled when attorneys for Samsung tried to nit-pick at specific design elements, such as the difference of the radius of the corners of rounded Samsung models versus the iPhone, telling the lawyers they were frustrating him and asking him "to compare peanut butter to a turkey" when talking about small specific differences. He also was made to tell the court that Apple was paying him $400 an hour for his consulting work. Before dismissing Bressler, Samsung lawyers appeared to demonstrate that the designer may have lied about the status of his website, though later investigation -- not mentioned in court -- showed that Bressler's original statements (that his domain was "under construction") to be true. Samsung had located a URL that was a subsite of the main domain that showed a functional website, and may have undermined Bressler's credibility in the minds of the jury, a point Apple is likely to take up when court resumes.
Bressler will be called back to the stand on Tuesday, followed by original Macintosh icon designer Susan Kare. In advance of her appearance, Apple entered into evidence numerous examples of Samsung having copied Apple icons for utility programs such as settings, music and phone icons, right down to the same icon color in some cases and all bearing marked resemblance to the original Apple designs.