Why Apple's 'Smoking Gun' Evidence Doesn't Prove Samsung Copied

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Apple says Samsung “slavishly copied” the iPhone for some of its smartphone and tablet designs. But is that true?

A document some are calling a “smoking gun” appears to be a powerful argument in Apple’s favor.

Apple and Samsung are suing each other in a Silicon Valley-based federal court.

The 132-page, internal Samsung “Relative Evaluation Report” dated March 2, 2010, appears to show an engineering and design comparison that directly compares more than 100 smartphone functions, with iPhone’s approach on the left and the Samsung Galaxy S’s approach on the right.

In each case listed, the iPhone function is found by Samsung engineers to be superior to the Samsung function in some way. Below the comparisons are recommendations for solving the problem, labeled as “Directions for improvement,” which in some cases are suggestions that Samsung should do things the Apple way.

The document is written in Korean, but an English-language translation was also admitted into evidence.

Why the Report Doesn’t Prove Patent Infringement
1. Ideas would need to originate with Apple and be patented
2. “Directions for improvement” are vague
3. Recommendations to copy aren’t infringement if they’re rejected
It’s Still Bad News for Samsung
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Why the Report Doesn’t Prove Patent Infringement

As damning as the “Relative Evaluation Report” appears to be, it does not by itself constitute proof that Samsung infringed on Apple’s patents, and for three reasons:

1. Ideas would need to originate with Apple and be patented

Even if Samsung copies Apple, or is influenced by Apple, it’s got to be Apple’s original idea or it’s not patent infringement.

For example, in one case, the “Relative Evaluation Report” points out that on the call screen, where users are presented with option buttons to do things like “mute” the call, use the speakerphone feature, add a caller, and so on, the iPhone’s “End Call” button is big, red and clearly separate from the other buttons.

The report likes this feature on the iPhone, and complains that the Samsung phone groups the “End Call” button together with the other buttons. The report says of the Samsung design: “Another button nearby could accidentally be pressed because it is a small button next to other in-call option menus.”

The “Directions for improvement” are that Samsung needs to “modify the call end button on the call screen so that it is a separate large button.”

Basically it says, and I’m paraphrasing, that Apple does its “End Call” button better than we do, so we should do it the way Apple does it.

This is a clear recommendation to copy Apple, right?

The answer is yes. But did Apple invent the idea of an end-call button separate from other buttons? And, if so, did they patent it?

Sure, Samsung used Apple’s design to show the superiority of a separate and large button. But that doesn’t mean Apple invented or patented that idea.

2. “Directions for improvement” are vague

In most cases, the recommended action is vague or general, suggesting improvement without specifically copying Apple. The most common recommendation for action is: “Need to develop [user interface] that can deliver not only functional operations but also fun factor.”

Apple can’t patent “functional operations” or “fun factor.”

Let’s get real. The “Relative Evaluation Report” is a standard competitive analysis of the kind that most businesses develop and share internally. In fact, any responsible public company has to do this. It’s simply a way to organize group thinking about the competitive marketplace.

Even Apple probably does this.

Samsung submitted into evidence an internal email from an Apple designer named Christopher Stringer in which he requested from a co-worker what he called “your latest summary of our enemies for an ID brainstorm,” and requested that if the person had “any more data beyond this, please could you update the chart?”

The email suggests that there is a “chart” passed around internally at Apple that can be described as a “summary of our enemies.” Because these are two designers talking to each other, it’s likely that the summary in question is about design, and may include design elements that Apple’s “enemies” are getting right.

In any event, the Samsung “Relative Evaluation Report” never says “copy this iPhone feature” or anything like that. Nearly all the recommendations involve doing something unspecified that will make Samsung’s interface design element work better or look better so it will be as good as Apple’s.

3. Recommendations to copy aren’t infringement if they’re rejected

Although it’s true that many of the report’s “Directions for improvement” are vague, it’s also true that some of them specify the Apple approach.

For example, one slide says that on the Samsung Galaxy S phone “it is difficult to move cursor when inputting text.” It points out that on the iPhone it’s “easy to move the cursor with a magnifying glass appearing over the area touched.”

The recommended action is that Samsung needs “a function like a magnifying glass for fine controls.”

That sounds like direct copying, doesn’t it?

In fact, Samsung did not implement a magnifying glass. Instead, they invented their own function for “fine controls,” which is a blue pointer that appears below the cursor when text is selected, or on either side of text that is selected.

So even in some cases where the report appears to recommend copying Apple, Samsung doesn’t follow the recommendation in shipping products.

In summary, patent infringement exists only where an idea originated with Apple, Apple was granted a patent for that idea, and Samsung used the patented Apple idea in actual products.

As far as I can tell, very few of the items in the “Relative Evaluation Report” pass this test.

It’s Still Bad News for Samsung

The most devastating thing about the report to Samsung’s case is that it works against Samsung’s overarching claim.

To oversimplify, Apple says it invents everything in its user interface, then others copy.

Samsung argues that most of the user interface elements in Apple’s phones and tablets are inevitable, obvious and “in the wind,” so to speak.

The “Relative Evaluation Report” supports Apple’s case in this regard. It’s clear at least that Samsung is being systematically influenced by the iPhone specifically.

The report is most damning if it becomes part of a chain of evidence where Apple can match up feature-by-feature where the report suggested a remedy, and Apple demonstrates that the resulting design changes were similar to Apple’s patented ideas.

My prediction is that there will be very few cases where this chain of evidence will be established in a way that constitutes a “smoking gun.”

The wildcard here is that the lawsuit is a jury trial. Apple needs only convince a jury in order to win the case. The “Relative Evaluation Report” is a powerful piece of evidence because it gives jurors a memorable visual image to accompany Apple’s “slavishly copied” claim. It gives Apple lawyers a thing to point to where they can say: “See? This is the specific point at which Samsung decided to copy Apple.”

The outcome of this case doesn’t require Apple to prove infringement. It only requires Apple to convince a jury that infringement happened.

So even if the “Relative Evaluation Report” doesn’t prove infringement, it very well could influence a jury.