At stake in the San Jose case are five Apple patents and a set of registered and unregistered trademarks on very specific elements of Apple's industrial design and software user interface. None of these speak directly to creating a damn fine Web browser in your pocket or a sleek slate on your lap that’s the equivalent of a full-blown PC.
Not surprisingly given the millions of patents issued to date, Samsung has been able to find good examples of what it claims are prior art for each of the five Apple patents. Indeed elements such as a black, rectangular shape with rounded corners, a flat face with a large display and a centered lozenge-shaped speaker are not rocket science. Others thought of them before the iPhone emerged, and Apple was looking at those same prior practitioners in its quest for new ideas.
For its part, Apple has been able to field impressive experts who argued reasonably the Samsung examples were not prior art. Similarly, Samsung has been able to field five patents of its own that are very respectable—including two that appear pretty significant to the 3G networks all modern cellphones use.
Just as Samsung has done, Apple has been able to find examples of what it suggests are reasonable prior art from the pool of millions of existing patents. And Samsung has been able to field experts who make reasonable arguments those examples are flawed in some significant ways.
One gets the impression that if Judge Lucy Koh would not have put a 25 hour time clock on each side’s time with the jury, they would have found prior art invalidating the prior art of the other side. And they would have found credible experts to argue the details of the prior art of the prior art. Madness this way lies.
There’s a lot of grey area to go around here, more than enough for nine average Joes and Janes from San Jose to sort out. At the end of the day their decision may say less about whether Samsung copied Apple or vice versa.
The verdict—whatever it is—may be a measure of how well or poorly the patent system serves the needs of the average engineer and his or her marketing colleague in expressing and protecting genuine innovations.
The verdict also could be colored by emotional issues, such as how the lawyers did or didn’t make an emotional trust connection with the jury, how they raised or failed to raise feelings of distrust for the other side. But that’s another story.