Apple and Samsung are presenting their closing arguments today in one of the biggest U.S. tech trials in history. As the ball heads over to the jury’s court, it has become painfully obvious over this past month just how complex this case is.
The case involves more than a dozen different patents, more than 30 allegedly infringing devices, claims of all shapes and sizes (utility, design, trade dress, and standards essentials), and that’s just the beginning. Both sides are arguing their cases (and defending themselves) concurrently, and each have done their part to either submerge evidence or slip some to the press, all the while infuriating federal judge Lucy Koh.
Yet the nine relatively non-tech savvy jurors, including a social worker, an unemployed video-game enthusiast, and an electrical engineer, will decide the fate of the two of the biggest electronics makers in the world. It’s a lot of information to take in, and more importantly, understand, even for the most technical among us. In a situation such as this, it’s easy for the facts to blur in with things that shouldn’t be counted as evidence. And on top of that, one must understand the intricacies of IP law to come to a valid conclusion.
This case is just as much about the jury’s perception of the trial as it is about the law. Both Samsung and Apple know this, and they know that their stories are just as important as the facts themselves. And so it would appear that both companies have taken their respective brand identities (and marketing strategies) into the court room.
Apple sells products by eliciting an emotional reaction to simplicity. Samsung, on the other hand, sells products by popularizing best of breed technology. That sounds convoluted but just wait.
When you think about Apple, you don’t just think about the iPhone or the iPad.
You think about Steve Jobs standing on stage as CEO and hero after being excommunicated from Apple decades ago. You think of the commercials, like the “1984″ and “Think Different” ads, that made you feel special. You think about the beautiful retail stores and lit-from-above products. You think about that crazy new headquarters, and how engineers will soon migrate there to build more delight and surprise for us.
You think about the brand as a whole. Part of the reason that Apple has so many diehard fanboys is because the brand is a powerful story of simplicity, all the way down to retail.
And when a new product is announced, on stage in front of hundreds of salivating fans, Steve Jobs (or more recently Tim Cook) would refer to it as just “iPhone” or “iPad,” with no leading article. He made the iThing a being on its own, an individual entity. “This is iPhone,” he’d say.
Apple’s branding is so effective, in fact, that fanboys’ brains respond to Apple imagery the same way that the brains of religious people respond to religious imagery.
The Apple brand is a story: a story powerful enough to brainwash.
Samsung, even with all the success it’s had, continues to blatantly attack Apple in its marketing. The latest run of ads for the Galaxy S II show Apple fans waiting in lines in the cold while perfectly content Galaxy S II owners live their lives. It shows GalPals poking fun at fanboys who are waiting for a small-screened phone without 4G connectivity, while one dude gets a date by using Samsung’s Siri competitor, S-voice.
Only recently has Samsung moved away from blatant Apple bashing to a more emotional form of marketing, but even that ad seems to try to beat Apple at its own game.
This is not to say it hasn’t been successful — Samsung is currently the king of mobile, holding the majority of the market both in the U.S. and globally. They know how to build technology quickly and cheaply and if it happens to look like a competitor’s device, well that was just top-of-mind. Why wouldn’t the electronics giant take the same strategy into the court room?
Apple has pared back its claims quite a bit, and chosen only the most simple and recognizable patents to assert. It approaches the jury with high-level executives, names that are closely associated with the brand, telling the story of how the iPhone came to be. There is talk of late nights and working weekends, pizza smell in Apple’s “purple dorm”, and inspirational movie quotes posted on the wall.
And more important than recognizable technology and tender stories of the iPhone’s origin, Apple has mastered playing the victim with the help of internal Samsung documents.
We, and likely the jury, forget that it is entirely legal for Samsung to be inspired by the iPhone. You can bet every other handset manufacturer was studying the breakthrough device, too, and Samsung has every right to use Apple hardware as inspiration for its next product.
Deleting evidence of that inspiration, however, doesn’t look favorable to the jury. Nor does mention of the iPhone alongside “crisis of design” within internal Samsung documents, or seeing Samsung emails describing the use of an Apple and Samsung device as “the difference of heaven and earth.”
Apple’s actual case, the claims it’s making based on the technology it owns, is very complicated. It includes many Samsung devices and quite a few technical conclusions, which are difficult to understand even when they’re reached. A patent expert could (and did) definitively say that Samsung is infringing Apple’s patents, only to have Samsung’s lawyer make said patent expert look like he’s contradicting himself. How is the jury supposed to know the truth?
Apple’s counting on the fact that they don’t need to understand the technicalities, as long as they feel how wrong Samsung is to have “purposefully” copied the iPhone.
Samsung, on the other hand, is banking on Apple’s mistakes, just as the company does in the real world. Instead of trying to prove that the firm didn’t infringe Apple’s patents, Samsung is far more concerned with proving that Apple’s patents are invalid to begin with, and that prior art voids the IP automatically.
Samsung is also asserting “standards essentials” patents, which basically means that Samsung is required to license the technology to Apple under fair, reasonable and non-discriminatory terms. The content of these patents is confusing and very technical, so Samsung would prefer to focus on the fact that Apple is using the technology for free rather than what the technology actually does.
Essentially, Samsung is calling Apple a thief in open court, though Apple argues the only reason it hasn’t licensed the technology is because Samsung wanted to charge an unusually high rate to its rival. Remember, Samsung and Apple have played nice for a long time with Samsung providing many components for the iPhone and iPad. Only now, in the midst of a fierce patent battle, has Apple’s refusal to license these 3G patents become an issue. Consider that hole poked.
In the end, Samsung is trying to tell a story very similar to Apple’s: that it was ripped off after working hard on original technology.
Unfortunately, the company is less practiced than Apple, and has reverted back to the same old attacks as a major portion of that story. Samsung has even gone so far as to leak evidence that Judge Lucy Koh deemed inadmissible in court. That’s far dirtier play than those hilarious anti-Apple commercials.
Apple is alleging infringement on eight of its patents, paired back from dozens after Judge Lucy Koh asked the electronics giants to at least make an effort to streamline their cases again stone another.
Four of Apple’s patents are design-related:
The final of Apple’s claims come down to trade dress, which is less about intellectual property and more about the way that a certain brand is recognized by consumers. Think McDonald’s golden arches.
Apple is also alleging infringement on three of its utility patents, which cover different elements and functions of a phone.
Apple is alleging infringement on approximately 25 Samsung devices, the most popular of which include the Galaxy S, Galaxy S II, and Galaxy Tab 10.1.
Samsung has a different case. The company is alleging that all of the iPads and iPhones infringe two 3G standards essentials patents and three utility patents.
What Samsung’s standards essentials patents cover isn’t all that important. What is important is that there’s no question Apple is using the technology — that’s why they’re called standards essential, because the technology is “essential” to 3G. However, any patents of this type must be licensed to any who asks under “Fair, Reasonable, and Non-Discriminatory” terms (FRAND), which Apple claims Samsung did not do.
The utility patents Samsung holds, however, are more understandable to a jury.
Who will prevail in the end remains to be seen. Chances are that both companies will secure a win over some, but not all, of their claims.
We’ve learned today that even the instructions for coming up with a verdict, as well as the verdict document, are both highly complex and haven’t even been agreed upon by both sides. The document could span up to 17 pages, if Samsung has its way.
The lawyers have and will continue to see a massive payout, as will the expert witnesses brought in to testify. And from there, it’s up to the jury and Judge Koh to determine any reparations and damages awards.
This lawsuit won’t change much in Cupertino or Seoul. Samsung and Apple will move on from this mess to keep producing their products on their own schedules. This will, however, discourage manufacturers from attempting to follow in each others’ footsteps, possibly to the detriment of the consumer. Sadly, when both of these giants stop following some grand “ideal” device, the possibility that we will see more iPads, GalTabs, and iPods coming out of these giants is diminished.
But, of course, all of that rides on the decisions of nine random jurors. And their decisions, as fair or unfair as it might be, will most likely be largely based on emotion elicited by the in court marketing tactics of Apple, Samsung or both.