Apple vs. Samsung: a parade of misgivings

by Mitchell Firman

MITCHELL FIRMAN examines the hotly-debated recent Apple/Samsung legal battles and wonders what will happen next.

If all the world’s a stage, then a court of law is dressing-room drama – one of which Apple can’t seem to get enough of. Over the last year, Apple and Samsung have been involved in five separate court cases, three of which have been decided in the past couple of weeks. South Korea, the United States and Japan have all offered differing verdicts over patent violations between these technological giants. However the most significant issue that has arisen out of these disputes is the one of trade dress, and it’s an issue that has captured the imagination of online reporters.

United States

On 24 August, a jury handed down a decision deciding that Samsung had infringed upon six out of the seven patents owned by Apple, whilst Apple had not infringed upon the five Samsung had presented. Samsung has been ordered to pay $1.05 billion in damages, but the loss could be far greater as Apple has recently sought to block the sale of eight Samsung mobile products in the United States – a list of which can be found here.

The most important issue to arise out of the case is Apple’s patent on rectangles with curved edges as a trade dress. Being able to patent such universal things reveals an error in the US patent system: one has to ask why a patent was issued over such a thing. Patents are meant to invite genuine technological and creative innovation – not protect something as general as this. Samsung didn’t steal the hardware or software code, but they were deemed to have stolen that “look and feel” in a way that sullied the image Apple fights so hard to protect (for further reference, this Telegraph video compares the Samsung and Apple tablets in detail).

The evidence that seemingly clinched the case for Apple was Google’s internal memo from 2010: Google were worried that Samsung products were beginning to cut a fine line and felt they should work to make their technology have less of a semblance to Apple products.

But really, is it any wonder that a US jury sided with Apple? Apple products have ingrained themselves upon the cultural identity of the States by and large – so much so that Apple these days isn’t just a company, but an American icon. Could that have affected the jury’s mentality when they made the decision? Some online bloggers (CNN) have even questioned the validity of the decision as it took three days for the jury to decide on such a complex verdict while pointing out a myriad of inconsistencies amongst the statements given by jurors (the full, amended jury verdict can be found here and a Groklaw thread on the issue of inconsistences in the Jury can be found here).

South Korea

On the same day the jury handed down their verdict in the US, a South Korean court decided that Apple had violated two of Samsung’s patents relating to wireless technology while Samsung had violated one of Apple’s patents regarding the bouncing-back function. Damages were awarded to both parties as well as bans on the sales of certain products. Interestingly, the court ruled against design similarities – key factors in the US case. Reuters quoted the judge as saying:

“Given that it’s very limited to make big design changes in touch-screen based mobile products in general… and the defendant [Samsung] differentiated its products with three buttons in the front and adopted different designs in camera and [on the] side, the two products have a different look.”

Both home nations offered differing verdicts upon the issue of trade dress and design similarities. A commentator in a Techno Buffalo video made a point that Samsung were most likely influenced by the iPhone and iPad designs, but he also noted that this was only business. In reality, the products will not get mixed up at the sales desk, while design is only one of a myriad factors influencing someone when buying a product. Given the judge’s comments in the South Korean case, one must ask if there is really much of a way to differentiate touchscreen technology when it comes to design factors.


Last Friday 31 August, a Tokyo judge dismissed a patent infringement case brought forward by Apple against Samsung. The patent in question is related to the synchronisation of media-players with personal computers. While the market for Apple and Samsung products are quite small in Japan, Hiroko Tabuchi and Nick Wingfield argue that this is an impending sign of more global legal battles between these behemoths of the tech industry. But will there be another player to contend with?


Recently, Google – via newly-acquisitioned Motorola – filed a patent complaint against Apple with the US International Trade Commission. The claim entails seven patents the most of important of which is related to iPhone’s Siri feature. Observers and insiders have been reporting that the brutal loss by Samsung in the US court has led to discussion between the CEO’s of Google and Apple to try and work out an agreement over patent issues. Reports have indicated that Larry Page from Google and Tim Cook from Apple have held negotiations relating directly to patent infringement.


If anything else, these court cases are just an endless parade of misgivings. The online sentiment seems to lie behind Samsung as fear of complete technological hegemony by Apple drives debate. But as I see it, this is just two bullies picking on each other in the playground, stealing each other’s lunches and flexing muscles. All they are doing is ruining it for everyone else. Apple – the biggest corporation in the world – isn’t some small-time company who can’t handle the competition, while Samsung – the world’s biggest mobile phone manufacturer – has no reason to not invest in genuine innovation.

I cannot help shake the feeling that this is a prelude of greater litigation to come. The fight between Apple and Samsung may just be beginning, but some commentators believe that it’s just an extension of an extension of Apple vs. Google. The late Steve Jobs’ comments about bringing “thermonuclear war” upon what he saw as the “stolen” Android system hang over Apple’s head and any action taken against a purveyor of the operating system works within this context.

Apple vs. Samsung is not going to away quickly, but one wonders what will happen next?

by Mitchell Firman

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