updated 09:07 pm EDT, Tue August 7, 2012
Says she was once confused by similarity of iPhone, Samsung
Early and influential Apple icon designer Susan Kare, who has also designed well-known icons for Microsoft, NeXT, Eazel, IBM and Facebook, was called by Apple to the witness stand in the Apple vs. Samsung trial to comment on the visual similarities of Samsung's products compared to Apple's. She said that the overall similarity of Samsung's icon, screen and other elements went "beyond coincidence" and reflected a deliberate attempt to mimic Apple's work, to the point that she once confused the two companies' products.
Kare was employed by Apple from 1982 to 1986 and designed two of the system's original fonts as well as many if not most of the most familiar icons from the Mac's early days, including "Clarus the Dogcow" and the smiling Mac Finder face. She also worked with NeXT to design its icons, and with Microsoft and IBM to design Windows XP and OS/2 icons, respectively. She is also responsible for familiar Facebook motifs such as the gift icon.
Kare was asked to analyze the home and application screens of 11 Samsung phones, and said that the overall layout and design of the Samsung were clearly derivative and "could be confusing" for a consumer. She added that in the course of a pre-trial meeting to discuss the similarities, she had accidentally grabbed a Samsung phone (which was on) to make a point about the iPhone's user interface (UI), mistaking the Samsung device for an Apple one. Charles Verhoeven, Samsung's lead attorney, followed that story by switching on a Samsung phone and asking Kare what she saw first: a bright white Samsung logo. Of course, the phone Kare grabbed in error was likely already booted, but it did reinforce the point that consumers were unlikely to think of a purchased Samsung phone as an Apple phone.
Like industrial designer Peter Bressler before her, Kare insisted under cross-examination that granular differences between the icons were unimportant to the overall conclusion that Samsung had set out to make similar icons, screen layouts and other elements similar to Apple's influential iPhone models. She pointed to similar icon designs, shapes, the existence of a dock, the use of sans-serif fonts and the evenly-spaced grid as infringing on an Apple patent (known as '305) that covers these elements. Though Verhoeven pressed her on specific icon differences, such as those for the calculator on Samsung versus Apple phones, Kare said the metaphor used for the icons, over and over, was the same even when differences were introduced.
She pointed out that other competitors, such as RIM's BlackBerry Torch, were able to design icons for the common functions without clearly borrowing from Apple's icons (seen below). When challenged on the startup sound, opening logo and other mechanics of the OS that would, Samsung said, prevent any confusion, Kare said she was asked only to evaluate the "look and feel" of the two operating systems, not the functionality. She said the the icons and overall design were "confusingly similar," a point that Samsung lawyers objected to in relation to trade dress claims, but which Judge Koh overruled.
Despite cross-examination that followed the tactic used against Bressler to get him to acknowledge numerous surface or tiny differences (such as the radius of the rounded corner in a Samsung icon compared to an iPhone icon), Kare was adamant that the overall similarities from among the more than one dozen models shown to her in court and in her earlier analysis "was beyond coincidental ... it seemed likely to me that Samsung used iPhone screen graphics as a guide."
Verhoeven challenged Kare during a discussion of the very similar phone icon on both Samsung and Apple devices, where Samsung's not only uses the same phone icon (reminiscent of a corded 70s handset) but also the same green color for the background. "Apple doesn't own the color green, does it?" he asked. Kare replied that she had seen a wider variety of "phone" software icons outside Samsung's. She did, however, admit under questioning that although the Messages icon on each platform is similar -- a speech bubble -- Samsung's was noticeably different than Apple's.
Following up on his earlier demonstration, Verhoeven demonstrates the full start-up sequence for a Samsung model, showing that users must see the Samsung logo, home screen and then the application screen Kare has said was substantially similar to Apple's. He asked Kare if she would agree that by the time a consumer had gone through all that, they would know that they had a Samsung phone. She demurs, saying it was outside of the area she had been asked to comment on. She is a graphic UI designer, not a consumer behavior analyst.
Asked about the physical home button on the iPhone and other hardware elements, Kare again rebuffed the questions by saying her analysis was limited to the display screen. The Samsung attorney then asked if the alphabetical order of the icons on the home screen (something Samsung does that Apple does not do) is useful. Kare acknowledges that the arrangement can sometimes be useful but "wouldn't categorically say [that] alphabetically is better than non-alphabetical." She further acknowledged later on that using a finger as the stylus on a touchscreen phone plays some role in determining spacing and placement of icons.
Kare was also asked about her fee for the trial, and replies that she is being paid $550 per hour. Apple's attorney moves to rebut some of Samsung's accusations, referring again to a UI report produced by Samsung that was previously entered into evidence. In the report, Samsung compares its screens and design elements point-by-point with the then-new iPhone and directly compares it to the then-current Samsung Galaxy S.
Apple's attorneys ask Kare to comment on the pre-iPhone Samsung icons and the post-iPhone Samsung icons, most of which changed from being very dissimilar (a number pad as the icon for the phone) to nearly identical or very similar (an almost-exact replica of the iPhone icon). Similar changes are noted for the Clock icon and the Message icon, which changed from an envelope icon to a speech bubble against a green background that is quite similar to Apple's icon. Verhoeven objected to the last comparison, saying Kare had already admitted there were substantive differences, but Kare notes she had also pointed out numerous similarities.