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Why Samsung has trouble with Apple and a short introduction to product law

By:Ahmed Mostafa

To:Prof. Dr. Eduard Heindl

Date 24/01/2012

Subject: E-‐Business

08 Fall

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Hereby I declare that I have prepared this term paper by myself without any one’s help and all the sources used have been cited as footnotes and bibliography.

Ahmed Moustafa

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Table Of Contents

• Introduction 4 • Introduction to product law 5

o What Kind of inventions can be patent? 5 o Conditions to be met by the invention to be entitled to a patent

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o European Patent 6 • Mobile Device Patent law 8 • The Claims 11 • Solutions 18 • Conclusion 20 • Bibliography 21

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Apple and Samsung have been fighting it out in the courts for months — the fight started in the US, when Apple claimed Samsung "slavishly" copied the iPhone, but since then it's spread out around the world, with both sides jockeying for position. Considering the stakes involved, this wrangling is bound to go on for some time.1

On April 18,2011 apple sued Samsung 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."2

The immediate takeaway is exactly as Florian Mueller(a German entrepreneur , corporate consultant and founder of the European political campaign NoSoftwarePatents.com) 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. 2

This lawsuit combat is being fought all over the world and in different places. Until now (15-‐1-‐2012) Apple had sued Samsung in 6 countries with a total of 8 law suits and Samsung had sued apple in 7 countries with a total of 8 law suites. Apple sued Samsung in the united states of America in the U.S. District Court for the Northern District of California the cases are Apple Inc. v. Samsung Electronics Co., Ltd. et al. (case no. 5:11-‐cv-‐01846; includes substance of formerly separate case no. 5:11-‐cv-‐2079). In the U.S. International Trade Commission In the Matter of Certain Electronic Digital Media Devices and Components Thereof (Apple v. Samsung; investigation no. 337-‐TA-‐796). Then in europe apple sued Samsung in Germany in the Landgericht (regional court) Mannheim Apple Inc. v. Samsung Electronics GmbH (case no. 7 O 166/11) and in Landgericht (regional court) Düsseldorf Apple Inc. v. Samsung Electronics GmbH (case no. 14c O 194/11). In the Netherlands in Rechtbank 's-‐Gravenhage (The Hague Court of Justice) Apple Inc. v. Samsung Electronics Co., Ltd. (case no. KG 11-‐730). Then in Asia Apple sued Samsung in Japan Tokyo District Court Apple Inc. v. Samsung Japan Corp.(case no. 2011 (Yo) No. 22048) and Apple Inc. v. Samsung Japan Corp. (case no. 2011 (Yo) No. 22049) also in South Korea Seoul Central District Court Apple Inc. v. Samsung Electronics Co., Ltd. (case no. 2011 Gahap 63647) and the last is in Australia in the Federal Court of

1 http://www.theverge.com/apple/2011/11/2/2533472/apple-‐vs-‐samsung 2 http://www.theverge.com/2011/04/19/apple-‐sues-‐samsung-‐analysis/

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Australia, New South Wales District Registry, General Division (Sydney) Apple Inc. v. Samsung Electronics Ltd. Co. (case no. NSD1243/2011). Also Samsung sued Apple in a lot of countries in the United States Samsung Sued apple in U.S. International Trade Commission In the Matter of Certain Mobile Electronic Devices (Samsung v. Apple; investigation no. 337-‐TA-‐794) and in U.S. District Court for the District of Delaware Samsung Electronics Co., Ltd. et al. v. Apple Inc. (case no. 1:11-‐cv-‐00573). Then in Europe Samsung sued them also in Germany in Landgericht (regional court) Mannheim Samsung Electronics GmbH v. Apple, Inc. and Apple GmbH (case no. 7 O 247/11) and in the United Kingdom in UK High Court of Justice, Chancery Div., Patents Court Samsung Electronics Co., Ltd. v.Apple Retail UK et al. (case no. HC 11 CO 2180). Then in France in Tribunal de Grande Instance de Paris (the only first-‐instance court in all of France authorized to hear patent cases) Samsung Electronics Co. Ltd and Samsung Electronics France v. Apple France et al. (case no. 11/10464). In Italy in Tribunale di Milano (Milan first-‐instance court) Samsung Electronics Italia s.p.a. v. Apple Inc.(case no. unknown). Also in Asia they sued them in Tokyo District Court they have 2 cases Samsung Electronics Co., Ltd. v. Apple Japan, Inc. (case no. 2011 (Yo) No. 22027) and Samsung Electronics Co., Ltd. v. Apple Japan, Inc. (case no. 2011 (Yo) No. 22028) also in South Korea in Seoul Central District Court Samsung Electronics Co., Ltd. v. Apple Korea Ltd (case no. 2011 Kahap 39552). This is all the suites that were filed by the 2 companies in their mobile device patent wars.1,2,3,4,5

Introduction to product law

Protection for the invention is limited to the country granting the patent. Therefore, the owner of the invention have to obtain a patent in each country he believes that the invention will generate revenue for him. It should be noted here that there is a European Patent Office granted a patent is valid in the Member States of the Bureau (fifteen countries).6

What kind of inventions can be patent?

Any product, or process, or method of manufacturing for a particular product, or the development of the product or the way of manufacturing 6

Conditions to be met by the invention to be entitled to a patent In general there are three conditions

3 http://www.bbc.co.uk/news/technology-‐15737080 4 http://www.huffingtonpost.com/2011/10/18/samsung-‐apple-‐patent-‐dispute_n_1017352.html 5 http://www.reuters.com/article/2011/12/02/us-‐apple-‐samsung-‐secrecy-‐idUSTRE7B030420111202 6 Consular. Hussein Moustafa,Counceler of the minister of law of Egypt,19-‐Jan-‐12

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novelty: that means the invention is New, that means not previously disclosed in the prior.

non-‐obvious: That means the invention cannot be reached by any person who does the same job due to experience.

useful: it can be of any manufacture that invention or used in the field of manufacturers6

Procedures for obtaining a patent and the requirements in the EPO

European patent

Before applying for a European patent

First, it is important to know what inventions and patents are. 7

Application

There are different routes to patent protection and the best route for you will depend on your invention and the markets your company operates in. The European Patent Office accepts applications under the European Patent Convention (EPC) and the Patent Cooperation Treaty (PCT). If you are seeking protection in only a few countries, it may be best to apply direct for a national patent to each of the national offices.7

A European patent application consists of:

a request for grant

a description of the invention

claims

drawings (if any)

an abstract.

Applications can be filed at the EPO in any language. However, the official languages of the EPO are English, French and German. If the application is not filed in one of these languages, a translation has to be submitted. Although the services of a professional representative are mandatory only for applicants residing outside Europe, the EPO advises all applicants to seek legal advice.7

Filing and formalities examination

The first step in the European patent granting procedure is the examination on filing. This involves checking whether all the necessary information and documentation has been provided, so that the application can be accorded a filing date.7

The following are required:

7 http://www.epo.org/applying/basics.html

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an indication that a European patent is sought

particulars identifying the applicant

a description of the invention or

a reference to a previously filed application.

If no claims are filed, they need to be submitted within two months.7

Search

While the formalities examination is being carried out, a European search report is drawn up, listing all the documents available to the Office that may be relevant to assessing novelty and inventive step. The search report is based on the patent claims but also takes into account the description and any drawings. Immediately after it has been drawn up, the search report is sent to the applicant together with a copy of any cited documents and an initial opinion as to whether the claimed invention and the application meet the requirements of the European Patent Convention.7

Publication of the application

The application is published -‐ normally together with the search report -‐ 18 months after the date of filing or, if priority was claimed, the priority date. Applicants then have six months to decide whether or not to pursue their application by requesting substantive examination. Alternatively, an applicant who has requested examination already will be invited to confirm whether the application should proceed. Within the same time limit the applicant must pay the appropriate designation fee and, if applicable, the extension fees. From the date of publication, a European patent application confers provisional protection on the invention in the states designated in the application. However, depending on the relevant national law, it may be necessary to file a translation of the claims with the patent office in question and have this translation published.7

Substantive examination

After the request for examination has been made, the European Patent Office examines whether the European patent application and the invention meet the requirements of the European Patent Convention and whether a patent can be granted. An examining division normally consists of three examiners, one of whom maintains contact with the applicant or representative. 7

The grant of a patent

If the examining division decides that a patent can be granted, it issues a decision to that effect. A mention of the grant is published in the European Patent Bulletin once the translations of the claims have been filed and the fee for grant and publication have been paid. The decision to grant takes effect on the date of publication. The granted European patent is a "bundle" of individual national patents.7

Validation

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Once the mention of the grant is published, the patent has to be validated in each of the designated states within a specific time limit to retain its protective effect and be enforceable against infringers. In a number of contracting states, the patent owner may have to file a translation of the specification in an official language of the national patent office. Depending on the relevant national law, the applicant may also have to pay fees by a certain date.7

Opposition

After the European patent has been granted, it may be opposed by third parties – usually the applicant’s competitors – if they believe that it should not have been granted. This could be on the grounds, for example, that the invention lacks novelty or does not involve an inventive step. Notice of opposition can only be filed within nine months of the grant being mentioned in the European Patent Bulletin. Oppositions are dealt with by opposition divisions, which are normally made up of three examiners.7

Limitation / revocation

This stage may also consist of revocation or limitation proceedings initiated by the patent proprietor himself. At any time after the grant of the patent, the patent proprietor may request the revocation or limitation of his patent. The decision to limit or to revoke the European patent takes effect on the date on which it is published in the European Patent Bulletin and applies ab initio to all contracting states in respect of which the patent was granted.7

Appeal

Decisions of the European Patent Office – refusing an application or in opposition cases, for example – are open to appeal. Decisions on appeals are taken by the independent boards of appeal. In certain cases it may be possible to file a petition for review by the Enlarged Board of Appeal.7

About 100 state recognized the Treaty of patents the Paris Convention for the year 1883, and began working out since 1884. Each state has agreed to grant citizens of other countries the same rights in the patent granted to its citizens. Has achieved the Treaty principle called the right of priority. This right to benefit those who are applying for a patent in their country and advancing over a year to get them in any other country he can make his patent date the same as the first date he applied in the first country.7 Mobile device patent wars

In the spring of 2011, Apple and Samsung began to engage in what became known as the mobile device patent wars: extensive litigation in fierce competition in the global market for consumer mobile communications. By August 2011, Apple and Samsung were carrying out their legal battles in 19 ongoing lawsuits in 12 courts in nine countries on four continents; by October, the fight expanded to 10 countries.8,9

8 Albanesius, Chloe, Every Place Samsung and Apple Are Suing Each Other, PC Magazine, 2011-9-14.

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Apple sued Samsung, one of its component suppliers, in a 38-‐page legal complaint on April 15, 2011 in the U.S. District Court for the Northern District of California, alleging that several of Samsung’s Android phones and tablets, including the Nexus S, Epic 4G, Galaxy S 4G, and the Samsung Galaxy Tab, infringed on Apple’s intellectual property: its patents, trademarks, user interface and style.10Apple's complaint included specific claims for patent infringement, federal false designation of origin and unfair competition, federal trademark infringement, state unfair competition, common law trademark infringement, and unjust enrichment.11Apple's purported evidence submitted to the court included side-‐by-‐side image comparisons of Apple iPhone 3GS and Galaxy S i9000 to illustrate the alleged similarities in packaging and icons for apps. The images were later found to have been tampered with in order to make the dimensions and features of the two differing products seem more similar.12,13,14,15,10,16,17,18,19,20

Samsung counter-‐sued Apple on April 22, 2011, filing federal complaints in courts in Seoul, Tokyo and Mannheim, Germany, alleging Apple infringed Samsung's patents related to mobile-‐communications technologies.21 A German court (the Landgericht Düsseldorf) in August 2011 granted Apple's request for an EU-‐wide preliminary injunction barring Samsung from selling its Galaxy Tab 9 Australian court to fast-track Samsung appeal on tablet ban, Reuters, 2011-10-27.

10 Yukari Iwatani Kane and Ian Sherr, Apple: Samsung Copied Design, Wall Street Journal, 2011-04-19.

11 Complaint, Apple v. Samsung, CV-11-1846-LB, U.S. Dist. Ct. (N. Dist. CA), April 15, 2011.

12 Ibrahim, Tony. "Apple Submit Misleading Evidence In Samsung Case Claims Lawyers". smarthouse.com.au. smarthouse.com.au. 13 Holwerda, Thom, Apple Also Manipulated Evidence in Dutch Apple v Samsung Case, osnews.com. 14 Earley, Dustin, More False Evidence Pops Up In European Apple vs. Samsung Case, androidandme.com. 15 "Apple Back to Manipulate the Evidence in a Lawsuit Against Samsung?". Androidshine.com. Androidshine. 21 August 2011 16 Hemphill, Kenny, Apple and Samsung in legal battle, MacUser, 2011-04-19. 17 Ogg, Erica, Apple securing $7.8 billion worth of Samsung displays, memory?, CNet News, 2011-02-14. 18 Rosoff, Matt, Apple Says Samsung Ripped Off The iPhone And iPad, Business Insider, 2011-04-18. 19 Trefis Team, Apple’s Samsung Lawsuit Could Fatten Up iPad Profitability, Forbes, 2011-04-20. 20 Elgan, Mike, The Field Guide to Apple’s Samsung Lawsuit, 2011-04-21.

21 Yang, Jun, Samsung Counter Sues Apple as Patent Dispute Deepens, Bloomberg News, 2011-04-22.

22 Jin, Hyunjoo and Gupta, Poornima, Apple blocks Samsung's Galaxy tablet in EU, Reuters Canada, 2011-08-10.

23 Foresman Chris, After Samsung win, Apple targets Motorola Xoom in German court, ArsTechnica, 2011-08-10.

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v10.1 device on the grounds Samsung's product infringed on two of Apple's interface patents. After Samsung's allegations of evidence tampering were heard, the court rescinded the EU-‐wide injunction and granted Apple a lesser injunction that only applied to the German market.22,23 In the same time period and in similar cases of related legal strategy, Apple filed contemporaneous suits against Motorola with regard to the Xoom and against a German consumer electronics reseller named JAY-‐tech in the same German court, both for design infringement claims. Apple did not state the specific relief it sought in its complaints except for the preliminary injunctions, and is expected to amend its filings after the injunctions are granted.24

Shortly after the release of the iPhone 4S, Samsung filed motions for injunctions in courts in Paris and Milan to block further Apple iPhone sales in France and Italy, claiming the iPhone infringed on two separate patents of the Wideband Code Division Multiple Access standard.25,26,27 Samsung reportedly singled out the French and Italian markets as key electronic communications markets in Europe, and by filing suit in a different court, avoided going back to the German court where it had lost a round earlier in its battle with Apple.28In late October 2011, the civil court in The Hague rejected Samsung's infringement arguments and denied Samsung's motion made there; a short time later an Australian federal court granted Apple's request for an injunction against Samsung's Galaxy Tab 10.1.29,30.Samsung agreed to an expedited appeal of the Australian decision in the hope that if it won its appeal before Christmas, it might salvage holiday sales that it would otherwise lose.Ultimately, the injunction Apple sought to block the Tab 10.1 was denied in Australia, and the injunction it sought to block Samsung smartphones such as the Infuse 4g and the Droid Charge was also denied in the U.S. Judge Lucy Koh ruled that Apple's claims of irreparable harm had little merit because although Apple established a likelihood of success at trial on the merits of its claim that Samsung infringed one of its tablet patents, Apple had not shown that it could overcome Samsung's challenges to the patent's validity.31,12

21 Yang, Jun, Samsung Counter Sues Apple as Patent Dispute Deepens, Bloomberg News, 2011-04-22.

22 Jin, Hyunjoo and Gupta, Poornima, Apple blocks Samsung's Galaxy tablet in EU, Reuters Canada, 2011-08-10.

23 Foresman Chris, After Samsung win, Apple targets Motorola Xoom in German court, ArsTechnica, 2011-08-10.

24 Foresman Chris, After Samsung win, Apple targets Motorola Xoom in German court, ArsTechnica, 2011-08-10. 25 Albanesius, Chloe, Samsung Wants Apple's iPhone 4S Banned in France, Italy, PC Magazine, 2011-10-5. 26 "Samsung wants iPhone 4S banned in France and Italy". BBC News. 5 October 2011. Retrieved 5 October 2011. 27 Sang-Hun, Choe (5 October 2011). "Samsung to Seek Block on iPhone in Europe". New York Times (Seoul). Retrieved 5 October 2011. 28 Ramstad, Evan (5 October 2011). "Samsung to Seek Ban on Apple iPhone 4S in France, Italy". Wall Street Journal (Seoul). Retrieved 5 October 2011. 29 Dutch Court Refuses Samsung's Request to Ban iPhone, iPad Sales, Associated Press report on Law.com, 2011-10-17. 30 Miller, Amy, Judge Stumps Samsung's Lawyers in Apple Patent Case, Law.com, 2011-10-17.

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The Claims

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. 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." 13,32

Hardware and software trade dress claims

1. A rectangular product shape with all four corners uniformly rounded; 2. The front surface of the product dominated by a screen surface with black

borders; 3. As to the iPhone and iPod touch products, substantial black borders

above and below the screen having roughly equal width and narrower black borders on either side of the screen having roughly equal width;

4. As to the iPad product, substantial black borders on all sides being roughly equal in width;

5. A metallic surround framing the perimeter of the top surface; 6. A display of a grid of colorful square icons with uniformly rounded

corners; and 7. A bottom row of square icons (the "Springboard") set off from the other

icons and that do not change as the other pages of the user interface are viewed.32

Packaging trade dress claims

1. a rectangular box with minimal metallic silver lettering and a large front-‐viewpicture of the product prominently on the top surface of the box;

2. a two-‐piece box wherein the bottom piece is completely nested in the top piece; and

3. use of a tray that cradles products to make them immediately visible upon opening the box.

Second claim:

Federal trade dress infringement under 15 U.S.C. § 111432

31Apple Inc. v. Samsung Electronics Co. Ltd., et al, 11-1846, case record, U.S. District Court, Northern District of California 32 http://www.theverge.com/2011/04/19/apple-sues-samsung-analysis/

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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.

U.S. Registration No. 3,470,983 is for the overall design of the product, including the rectangular shape, the rounded corners, the silver edges, the black face, and the display of sixteen colorful icons.

U.S. Registration No. 3,457,218 is for the configuration of a rectangular handheld mobile digital electronic device with rounded corners.

U.S. Registration No. 3,475,327 is for a rectangular handheld mobile digital electronic device with a gray rectangular portion in the center, a black band above and below the gray rectangle and on the curved corners, and a silver outer border and side.

For Samsung, it's the same story: the best strategy is to deny any similarities, and back that up with data that shows consumers aren't actually being confused.32

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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.32

No. 3,886,196 is the iOS phone app icon.

No. 3,889,642 is the iOS messaging app icon.

No. 3,886,200 is the iOS photos app icon.

No. 3,889,685 is the iOS settings app icon.

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No. 3,886,169 is the iOS notes app icon.

No. 3,886,197 is the iOS contacts icon.

Pending No. 85/041,463 is the iTunes icon, which is a riff on U.S. Registration No.2,935,038, the desktop iTunes logo.

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.32

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.32

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. 32

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.32

Seventh claim:

Infringement of the '002 patent

Patent #6,493,002, delightfully titled Method and Apparatus for Displaying and Accessing Control and Status Information in a Computer System, is new to the Apple / Android litigation party. It was filed in 1997 and granted in 2002, so the connection to iOS and Android is a little harder to see — it covers a system that pops open a window to show multiple interactive control widgets. The drawings are of the old OS 9 control bar, but one could see how this applies to the Android control widgets. We'll have to see what Apple specifically argues with this one.32

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Eighth claim:


381 is one of Apple's first iOS-‐related patents — it covers the "bounce" effect you get on iOS when you scroll to the top or bottom of a list. We talked about it way back in January 2009 when everyone thought Apple cared enough about Palm's impact on the market to do anything except patiently wait for a six-‐month Sprint exclusive to slowly and inevitably choke the company to death. Those, friends — those were the days.32

Apple's also asserted '381 against Nokia and HTC, so it obviously feels that it's strong enough to withstand a triple-‐headed attack on its validity.32

Ninth claim:


Patent #7,669,134 is titled Method and Apparatus For Displaying Information During An Instant Messaging Session, and that's no lie — it covers arranging incoming messages in a communications session in a timeline that's horizontally spaced. In simple terms? It covers the iChat and iOS cartoon-‐bubble chat interface. That's pretty much exactly what Samsung's TouchWiz chat interface looks like.32

Tenth claim:


Patent #7,812,828 is a wonky technical patent related to touchscreen input — titled Ellipse Fitting For Multi-‐Touch Surfaces, it covers taking touch impressions mapping them to ellipses. Apple's also asserting this one against Motorola, so Cupertino's lawyers probably feel pretty good about it — and when a patent lawyer friend of mine read it, he actually said "whoa, nice claim." This is a true story.32

Eleventh claim:


Patent #7,844,915 is titled Application programming interfaces for scrolling operations, and it covers deciding when a user is using one finger to scroll a view versus two or more fingers to scale that same view. At first read, this seems like a pretty fundamental multitouch patent, so we'll see how successfully Samsung challenges it — if it holds up, Apple will have a very potent arrow in its quiver.32

Twelfth claim:


Patent #7,853,891, titled Method and apparatus for displaying a window for a user interface, covers displaying an overlay window over the standard UI in

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response to a keystroke and having it disappear automatically after some predefined amount of time. In other words, it covers things like the iOS volume display, which automatically fades out after you've adjusted the volume. This is a relatively new patent, just granted on December 14, 2010, so we'll see what the courts do with it -‐-‐ there are plenty of elements in Android that exhibit this behavior.32

Thirteenth claim:


Patent #7,863,533 is an old-‐school hardware patent. Titled Cantilevered push button having multiple contacts and fulcrums, it covers the volume rocker on the iPhone 3G and 3GS — a volume rocker that looks quite like the one on Samsung's various Galaxy S devices. We can't know for sure whether they're the same without tearing things apart, but Apple certainly thinks there's a bit of unwarranted inspiration going on.

Lastly, I would note that Apple didn't include Patent #7,479,949, which it's alleging against Motorola and HTC — it seems to cover a very basic iOS scrolling behavior that appears in Android. There are some seriously deep considerations at play in deciding what patents to assert against which opponents, and I'd love to know why Apple's making some of the choices it's making. This is multibillion-‐dollar chess.32

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.

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(Again, a gross simplification, but we're aiming for broad contours here.) Oh, and design patents expire just like every other patent, while trade dress lasts as long as the item is in commerce. The classic example is the Coke bottle, which carries a distinctive decorative shape — it was given a design patent that eventually expired, but it's still protected under trade dress because consumers associate that shape with Coca-‐Cola.32

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. Got it? So let's look at Apple's three iPhone design patents.32

Patent #D627,790: Graphical User Interface For a Display Screen or Portion Thereof. This is the iOS homescreen — the grid of icons.32

Patent #D602,016: Electronic Device. This is the iPhone 3G / 3GS design, as seen to the left. The broken lines that form the screen and the button aren't part of the patent, just the device's shell, so any button or screen size differences on Samsung's devices don't matter.32

Patent #D618,677: Electronic Device. This is the opposite of '677 — it's the screen and button design of the iPhone. The broken lines that form the case aren't part of the patent.32

Okay, so that's all the Samsung-‐specific stuff. At nine claims out of sixteen, it's actually the bulk of the lawsuit — making this case much different than Apple's other lawsuits against Android phone manufacturers. But that doesn't mean there isn't some Android-‐related stuff in here. Far from it, in fact — in addition to asserting some of the same patents against Android that it's using in other lawsuits, Apple's picked out several new ones that we haven't seen litigated yet. Let's burn through them.32

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Samsung Releases Redesigned Galaxy Tab 10.1N in Germany to Avoid Apple Infringement

Samsung has modified its Galaxy Tab 10.1 tablet in Germany in an attempt to avoid potential issues with design rights infringement, reports Florian Mueller of FOSS Patents. The new version, the Galaxy Tab 10.1N, has a new bezel design that wraps around to the front of the device more aggressively.14,33

Mueller says that it is likely that this design change was brought about by a collaboration between Samsung’s engineers and its legal team in an effort to avoid additional design rights trouble from Apple, although there is no guarantee that this change will fix matters completely or prevent issues in the future.33

This redesign puts Samsung in the unenviable position of having to strike a balance between ‘what a tablet must be’ and ‘too close to Apple’s design’. The tweaking of the bezel seems like a fiddly way to get around Apple’s design rights litigation in Germany, but if it works, it works.33

Apple Provides ridiculous changes Samsung can make to avoid legal trouble

At this point, it’s been pretty well established that Samsung is going to have to make some changes to their devices if they want to avoid any more legal trouble from Apple. But just what kind of changes can they make? They’ve already altered the appearance of the Galaxy Tab 10.1 in Germany, but it wasn’t enough to avoid the wrath of Apple’s legal team. Thankfully, Apple has been ever-‐so-‐kind as to offer a list of what Samsung can do to make their devices more unique.34

When it comes to phones, Samsung could make the following changes:

1. Front surface that isn’t black. 2. Overall shape that isn’t rectangular, or doesn’t have rounded corners. 3. Display screens that aren’t centered on the front face and have substantial

lateral borders. 4. Non-‐horizontal speaker slots. 5. Front surfaces with substantial adornment. 6. No front bezel at all.

And as for tablets:

1. Overall shape that isn’t rectangular, or doesn’t have rounded corners. 2. Thick frames rather than a thin rim around the front surface. 3. Front surface that isn’t entirely flat. 4. Profiles that aren’t thin. 5. Cluttered appearance.34

33 http://thenextweb.com/mobile/2011/11/16/samsung-‐releases-‐redesigned-‐galaxy-‐tab-‐10-‐1n-‐in-‐germany-‐to-‐avoid-‐apple-‐infringement/

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Conclusion

At the end of this paper about the Apple and Samsung Mobile device patent wars I would like to say my opinion on all what is happening. I was a big apple fan from the day they released the first IPhone and the IPad I had all the IPhones and all the IPads until the IPad 2 and the IPhone 4G then this year I got the Samsung Galaxy S2 and the Galaxy Tab 8.9. I like them more than the apple stuff but you will always feel that you are using the iPhone but with better development. It’s the same touch screen and nearly the same design from outside and nearly the same GUI you use in the IPhone all this stuff are true. But on the other hand you will find that the design of the phone is the development of phone designs no body said any thing when all the mobile phones when it started was the same shape. Now it’s different because this design is actually the best designs for smart phones in the way of size it’s the smallest way to make a phone or a tablet pc with this configuration. Then you will find that the Samsung devices are actually bigger in size and liter so I don’t think it’s true about that both devices are the same shape.

But at the end it seams that Samsung is loosing this war because as we seen it changed the shape of the Galaxy Tab in Germany. Also they are changing the devices shapes with the help of the legal department in their company. At the end in my opinion I think its ok from a company to take the others ideas and try to innovate in them because this is how we can reach better technology in a shorter time maybe if this rules are not there we would reach this smart phones very early then the 2000’s. This doesn’t mean that companies steel from each other the exact technology but they have to innovate and change in them.

20

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