Apple has already put its inevitable defeat against Nokia behind it and is in attack mode again. Yesterday (Thursday, June 16, 2011), Apple amended and expanded its complaint against Samsung, asserting more patents and other intellectual property rights than before against an extended list of allegedly infringing products.
It's certainly no coincidence that Apple did so on the eve of today's court hearing related to Samsung's requests for samples of the (not even announced) iPhone 5 and iPad 3. Also, today is the deadline set by the court for Samsung to provide to Apple's outside counsel samples of the Galaxy S2, Galaxy Tab 8.9, Galaxy Tab 10.1, Infuse 4G, and 4G LTE (aka "Droid Charge") products, packaging, and package inserts. After receiving and evaluating that material, Apple will soon decide on whether to request a preliminary injunction -- a move that I consider reasonably probable.
Before I explain the details of how Apple modified its complaint, let me show you my usual battlemap:Apple vs Samsung 11.06.16
The original complaint, filed on April 15, 2011, was already the most impressive multi-IPR [IPR = intellectual property rights] complaint I had ever seen. It told a complex copycat story in a compelling and coherent fashion. Despite my long-standing criticism of software patents, I admired it as a piece of art. But it got even bigger -- the main document now has 63 pages (previously 38) -- and better.
There are many changes and additions throughout the document. These are the ones I find most significant:
Copycat accusations phrased more strongly and in more detail
Many of the changes are designed to portray Samsung's alleged infringement as an incredibly outrageous act of copying. The original complaint already accused Samsung of "slavishly copying" Apple's designs. The amended one stresses that Samsung "has been even bolder" than other competitors emulating Apple's products and has created "products that blatantly imitate the appearance of Apple's products to capitalize on Apple's success."
Various paragraphs elaborate on those accusations and explain how Samsung released its accused products shortly after Apple's innovations. For example, Apple goes back to the year 2007 in which Samsung's F700 allegedly constituted a first act of "copying the clean flat clear surface of the Apple iPhone Trade Dress and the Apple iPhone/iPhone 3G/iPhone 4 Trade Dress."
In many places, just the replacement or insertion of a single word -- such as substituting "copied" for "misappropriated [Apple's distinctive product packaging]" -- strengthens those accusations.
Apple also points out that there was a lot of hard work behind its products:
While the iPhone was an instant success, there was nothing instant about the design process. Over the course of several years, Apple had teams of people working on developing each aspect of the design of the phone itself -- the shape of the phone, the materials used, and the size and placement of the mask that frames the screen -- as well as the Multi-Touch user interface, to make a product that looked and felt entirely different from prior phones on the market. The end result was a very clean shape for the phone, with an entirely flat glass panel for the front, gently rounded corners and integrated casing, and intuitive touch features.
The amended complaint also stresses the uniqueness of all of this:
Before Apple’s introduction of the first iPhone product, no other company was offering a phone with these features. Prior mobile phones were often bulkier and contained physical keypads. Some had a rocker-style navigation button and sets of buttons for numbers and calling features. Others had a front panel with a partial or full QWERTY keyboard and a screen. None had the clean lines of the iPhone, which immediately caused it to stand apart from the competition.
To show how famous its products and designs became based on their unique characteristics, Apple refers to various appearances of the iPhone and iPad on the front pages or lead sections of The New York Times, The Wall Street Journal, and USA Today, as well as cover stories in Time and Newsweek. Generally, the strength of trademarks and design-related rights is enhanced by such publicity.
Apple also points to the value of its brand:
On May 8, 2011, Apple topped the BrandZ Top 100 ranking of the most valuable global brands, with an 84 percent year-over-year increase in brand value. The increase in brand value was attributed to "successful iterations of existing products like the iPhone, creation of the tablet category with iPad, and anticipation of a broadened strategy making the brand a trifecta of cloud computing, software, and innovative, well-designed devices."
Apple always makes the connection between its own success and Samsung's accused behavior and cites several IT-specialized journalists:
The copying has been widely observed in the industry and has been mentioned in multiple articles reviewing Samsung products. For example, a writer for Wired wrote that Samsung's "Vibrant's industrial design is shockingly similar to the iPhone 3G." [...] "First Look: Samsung Vibrant Rips Off iPhone 3G Design." Another Wired writer wrote, "[L]et's settle one of the biggest arguments surrounding this phone. Yes, the Vibrant closely resembles a certain best-selling smartphone." [...] "Samsung Vibrant Looks Like an iPhone, Has Battery Life to Match." [...]
[A] Business Insider review of Samsung's Galaxy Tab 10.1 stated that, "[f]rom the front, it looks like an iPad." [...]
A recent CNET reviewer remarked: "Taking another page from the iPad 2's school of sexy tablet building, the 10.1 has one of the cleanest designs we've seen on a tablet. [...]"
[Fast Company:] "Samsung’s Anti-iPad 2 Policy" – "[To] Clone the Heck Out of It"
All of this emphasis on Samsung's copying may have been added with a particular view to a possible motion for a preliminary injunction. Apple would like to -- and may very well attempt to -- shut down some of Samsung's products in a matter of months. But courts grant preliminary injunctions only under special circumstances, and some intellectual property rights (such as trademarks) are better suited as grounds for a preliminary injunction than others (such as utility patents).
The original complaint specifically accused the following products of infringement: "the Samsung Captivate, Continuum, Vibrant, Galaxy S 4G, Epic 4G, Indulge, Mesmerize, Showcase, Fascinate, Nexus S, Gem, Transform, Intercept, and Acclaim smart phones and the Samsung Galaxy Tab tablet."
The amended complaint accuses all of the above plus the Droid Charge, Exhibit 4G, Galaxy Ace, Galaxy Prevail, Galaxy S (i9000), Gravity, Infuse 4G, Nexus S 4G, Replenish, Sidekick, Galaxy Tab 10.1, and Galaxy S II (aka Galaxy S 2). It also specifies the accusation against "Showcase" products, naming the Showcase i500 and Showcase Galaxy S.
Utility (i.e., hardware and software) patents:
two out, three in, now eight in suit
The original complaint asserted (among other IPRs) seven utility patents. That number has gone up by one. Apple threw out two but introduced three new ones.
These are the two that got dropped:
U.S. Patent No. 7,669,134 on a "method and apparatus for displaying information during an instant messaging session" (a software patent)
U.S. Patent No. 7,863,533 on a "cantilevered push button having multiple contacts and fulcrums" (a hardware patent)
And these three got added:
U.S. Patent No. 7,663,607 on a "multipoint touchscreen" (a hardware patent)
U.S. Patent No. 7,864,163 on a "portable electronic device, method, and graphical user interface for displaying structured electronic documents" (a software patent positioned as a computer-implemented invention with a view to the European legal framework)
U.S. Patent No. 7,920,129 on a "double-sided touch-sensitive panel with shield and drive combined layer" (a hardware patent)
Apple dropped one of the three design patents it originally asserted: U.S. Design Patent No. D602,016 on an "electronic device".
Apple now asserts five new design patents:
U.S. Design Patent No.D617,334 on a "graphical user interface for a display screen or portion thereof"
U.S. Design Patent No. D604,305 on a "graphical user interface for a display screen or portion thereof"
U.S. Design Patent No. D593,087 on an "electronic device"
U.S. Design Patent No. D622,270 on an "electronic device"
U.S. Design Patent No. D504,889 on an "electronic device"
Apple's original complaint discussed trade dresses under headlines that relate to entire product lines such as "iPhone" and "iPad". Apple has now made clear distinctions between different product generations such as iPhone vs. iPhone 3G vs. iPhone 4.
That adds precision and may also have to do with the issue the court will discuss today: whether Samsung has good-faith reasons to have its external lawyers evaluate future iPhone and iPad products even ahead of an official announcement. A very important one of Apple's arguments in that context is that it says future iPad and iPhone generations are not at issue in this case. By making it clear that only particular generations of the iPad and iPhone product lines are relevant to the case, Apple tries to make it even harder for Samsung to convince the court that it should get access to future Apple products.
Besides general trade dress claims, Apple's complaint also makes reference to several U.S. trade dress registrations. Apple asserts the same trade dress registrations as it did before, but it also added four trade dress applications:
U.S. Application Serial No. 77/921,838 for the configuration of a digital electronic device with a screen on the front of the device, and a circle at the bottom center of the front [the iPad]
U.S. Application Serial No. 77/921,829 for a configuration of a digital electronic device, with a gray screen, a black border around the screen, a black concave circle at the bottom of the border, and silver sides [also the iPad]
U.S. Application Serial No. 77/921,869 for the overall design of the product, including a black screen and silver casing, with thirteen colorful square icons arranged in four rows on the face of the screen, and a concave black circle with the outline of a gray square in the center below the bottom row of icons [again, the iPad]
U.S. Application Serial No. 85/299,118 for the configuration of a rectangular handheld mobile digital electronic device with evenly rounded corners [the iPhone 4]
Even though it's foreseeable that Samsung will deny the enforceability of mere applications (as opposed to actual registrations), Apple probably hopes that its reference to those applications complements its overall story and that some or all of those applications will result in actual trade dress registrations during the course of the litigation.
If Apple hasn't already made counterclaims in Korea, Japan and Germany (where Samsung sued it in response to Apple's California complaint), it will probably do so soon.
A Samsung spokesman recently suggested that more escalation is possible. In my view it's not only possible but highly probable.
Apple still has time to respond to Samsung's California countersuit. It's possible that Apple will make some counterclaims in that one. Maybe some of the patents that just got dropped will be reintroduced on an occasion like that.
In the very near term, Apple will have to decide on whether to request a preliminary injunction. Like I said further above, that's reasonably likely. If the court appeared to give serious consideration to this measure, it could put enormous pressure on Samsung and greatly increase the likelihood of a near-term settlement in Apple's favor. But this can also become another epic battle like the one between Apple and Nokia...
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