SAN JOSE – Samsung’s lead attorney tried to draw the conclusion that icons are by their very nature, well—iconic. The images represent basic functions all smartphones need to use, he suggested in cross-examining an expert witness for Apple who said Samsung’s handsets are “substantially” and “confusingly similar” to those on the iPhone.
A majority of the icons used on Samsung’s phones differ substantially from those on the iPhone, said Charles Verhoeven, Samsung’s lead attorney. In addition, he turned on Samsung and Apple handsets to show the jury splash screens that identify the makers of the phones.
When turned on the Samsung handset showed the company’s name prominently for several seconds before playing an animation that included a voice that said “Droid.” It was followed by an unlock screen and a home screen with a Google search bar.
Verhoeven then pressed an application screen button on the Samsung phone to go to the gird of icons alleged by Apple to infringe its D604,305 design patent. In testimony, graphics expert Susan Kare, who designed icons for the original Apple Macintosh computer, said she confused a Samsung handset for an iPhone when looking at a table full of devices switched on to their application screens.
“By the time a consumer goes through all those steps [to get to the applications screen] that consumer knows this is a Samsung phone, right?” he asked Kare.
“I was only asked to consider the [Samsung] application screens compared to the iPhone” and patent, said Kare who has run a graphics and icon consulting business for 27 years since leaving Apple. “I’m not an expert in consumer behavior, so I don’t know if I’m qualified to answer this question,” she added.
“Wouldn’t you agree no consumer would be confused by that time?,” Verhoeven later pressed.
“It’s outside my focus as a graphics UI designer,” Kare said.
Later, Verhoeven walked through seven of the 16 icons in the Apple design patent, showing they did not appear on a Samsung handset. Kare also agreed another three icons on the Samsung phone were “substantially different” from those on the iPhone.
Verhoeven attacked some of the icons that were same—such as a clock and a white phone receiver on a green background—as images Apple did not own.
“I believe seeing that white phone on a green background is distinctive,” said Kare. “I see the parts that make a whole rather than the ingredients of a cookie,” she added.
Cross-examination continues this afternoon as testimony for Apple continues. Apple is asking for $2.5 billion from Samsung for infringing its design and utility patents and allegedly copying aspects of the trade dress of iPhones and iPads.
The apple barristors were very good (sneaky?) in that they found an expert who's knowledge is limited to icons only and therefore had issues determining the difference based on that alone. Had she been an average schmuck like the rest of us, she could have seen at a glance that the white/silver phone was an iproduct and that all the other phones (which are black) are not.
Unfortunately, the courts are blinded by procedure. The are not allowed to look at the big picture because the filings are written such that they only challenge the sub-items. In other words, it doesn't matter that a reasonable person can determine the difference between a white and black phone. It's presumed that they only look at the screen icons and hence the white/black filtering method is irrelevant and therefore they can be possibly confused.
I don't think anyone I've known would be confused as to whether a phone is made by apple or samsung. They are so distinctly different that even a child could tell them apart ... with or without icons.
Once this lawsuit is said & done and the dust has finally settled, one group will rise above the rest and stake its claim as the clear cut winner ... sadly enough, it'll be the lawyers and their pocketbooks.
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