Daniel Eran Dilger in San Francisco
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Samsung’s Digital Picture Frame was no iPad

Daniel Eran Dilger

If Google’s overall Android strategy seems to be derived from the collective fantasies of blog commenters (Google should buy Motorola!!), then Samsung’s legal defense in Apple’s infringement cases appears to be similarly sourced from anonymous online comments (I can’t see it!! If anything, Apple is copying Samsung!!).
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Samsung has already stated in its legal filings with the US court that “in Germany, Apple secretly filed for an injunction, without any notice to Samsung, and with reportedly doctored evidence,” tacking the conspiracy theory Android advocacy of Andreas Udo de Haes (that Apple had to distort photos to make the Galaxy Tab look like an iPad) on the back end of a flat out misrepresentation about court filings that sounds like it was written for a high school newspaper.

Now, it seems, Samsung is reaching out to embrace more populist blogarrhea: that the iPad’s instantly recognizable design and branding are nothing new at all because flat displays have been presented in science fiction going back into the 1960s.

As a leading manufacturer of flat displays, you’d think Samsung would have more to go on that an a clip of “2001″ that portrays astronauts watching TV on what appears to be a slate form factor screen. Samsung not only asks the court to recognize this as a tablet computer, but also suggests there is some similarity in design between the IBM branded display and Apple’s iPad.

That’s a bit of a stretch, given the strip of buttons below, the angled lip, and square corners and the almost invisibly thin margin around the screen (click to enlarge). Had Samsung built something that looked like that, I doubt if Apple would have alleged that its device were infringing its design patent for the iPad.

But Samsung didn’t build a fantasy ’68 TV, it built an iPad 2 clone. So slavish was its attention to cloning the iPad that it had to go back to the drawing board for the Galaxy Tab 10.1 after iPad 2 was released to make its own tablet even more like Apple’s design.

Samsung’s digital photo frame

But wait, Samsung’s fans say, didn’t the company itself make a device with a flush-surface screen and a wide black margin? Back in 2006, Engadget described a product Samsung no longer makes: a digital photo frame that looks suspiciously like the iPad, but four years before the iPad, and before the iPhone even.

Well it looks like it from one angle anyways. In reality, the 7 inch digital photo frame wouldn’t be mistaken for an iPad at all, and of course, wasn’t anything like an iPad in functionality, as the comparison below to the Galaxy Tab 10.1 and the design patent it offends indicates.

Apple’s D889 design patent does address elements of the face of the iPad that are similar to the minimal face of the minimally functional Samsung photo frame, but the design patent also describes the iPad from the back, corner, sides, and beveled edges, none of which are remotely similar to Samsung’s earlier product.

Further, Samsung didn’t continue to build devices that extended the look of its photo frame in new directions. The company’s smartphones and tablets didn’t adopt the lines of its 2006 photo frame; they copied the look of Motorola flip phones, Nokia candy bar phones, and Microsoft reference designs for Tablet PC/UMPC, right up until Apple’s iPhone and iPad became popular, at which point Samsung began copying Apple.

Even Samsung’s subsequent photo frames (like the one below, from 2008, after the original iPhone was released) abandoned any fleeting similarity with the design Apple would later use throughout its iOS devices, instead pursuing an angular, squared shape with lots of navigational buttons on the front, the very antithesis of Apple’s mobile designs.

Further, Apple isn’t just arguing that there is some resemblance between its design and a product made by Samsung. It’s alleging that a wide variety of Samsung’s modern products (including virtually the entire Galaxy line) are actively striving to look as identical as possible to the iPhone, iPod touch and iPad.

It also maintains that the reason Samsung is doing this isn’t because there is no other way to build phones or tablets, but because Samsung recognizes that the market wants the devices Apple designs, advertises and builds its reputation and goodwill behind, and that it is seeking to ride Apple’s coattails to reach the same market with far less effort than if it were to create its own designs and build its own reputation with them.

It looks bad for Android when its most successful licensee is the one copying Apple the most slavishly. Android was supposed to open the floodgates to options and choices, but the more Android diverges from Apple’s designs (witness the abject failure of Android 3.0 Honeycomb), the worse it fares in the market. This is something that Microsoft has learned over and over in the Tablet PC market, the music player market, the netbook market and the smartphone market.

Perhaps the market doesn’t really want random “choice” as much as good, thoughtful original designs that come from hard work rather than copying others’ products and just making some arbitrary changes to differentiate.

Samsung uses Apple’s design patents as Galaxy blueprints

Also, note that Apple isn’t just accusing Samsung of infringing upon one or two elements of its overall design; it’s flatly stating that Samsung has actively pursued cloning Apple’s designs to rip off Apple’s reputation to sell an inferior product that purports to look and work the same as Apple’s own products. Apple further claims that by doing this, Apple’s own reputation and image will be tarnished, not unlike The Situation with Abercrombie and Fitch.

The Galaxy Tab 10.1 clearly appears to use Apple’s D889 patent as its blueprint. In contrast, Samsung’s own digital photo frame doesn’t look anything like the iPad outside of resembling its minimalist face, largely because the digital photo frame had no functionality on its face. From the side, back and top it looks nothing like the iPad. As soon as Samsung’s digital photo frame picked up some additional features, Samsung started putting buttons on it.

In its legal complaint, Apple paints a picture that shows Samsung first copying its iPhone 3GS for its own Galaxy S 4G, then moving on to mimic the iPhone 4 design with its own Infuse 4G, and finally making (and then refining) its Galaxy Tab 10.1 to look as close to the iPad 2 as possible. Not just a casual coincidence, but again what appears to be the use of the design patent as a blueprint, right down to smartphones with “a rounded, horizontal speaker slot centered on the front surface above the display screen.”

Samsung can pull allnighters perusing Star Trek and Dr Who looking for prior art, but the fact remains that people didn’t buy the iPad because it reminded them of Samsung’s photo frame, or a special effect they first observed while dropping LSD, or a fantasy book depicted in a work of fiction to function like a TV. They bought it because of Apple’s solid reputation for building the iPhone as a smartly designed, genius simple handheld computer in the body of a cell phone. They bought it because it delivered a sense of magical wonderment.

Samsung copies Apple’s design, but fails to copy the magic

Samsung assembled imitative hardware and runs Google’s Android on it. That combination lacks the refinement of Apple’s products. Android’s user interface lags because it lacks full hardware acceleration for a variety of screen animations that iOS performs with flawless grace. Copying this aspect of the iPad would require far more effort than simply copying Apple’s design for the body and putting it in a copy of Apple’s design for the box and promoting it with copies of Apple’s marketing photos.

Samsung’s original Android tablets can’t run a software update that arrived just a few months after the product shipped. Samsung knew it was coming but only focused on shipping a “smooth” number of boxes into the channel, not on delivering value or a good product for its customers. Steve Jobs flatly predicted that Samsung would abandon its early adopters to move on to another design, and sure enough it did within about six months.

Last year I bought a Samsung 3D HDTV. This year, the company arbitrarily changed the design of its ~$100 pairs of 3D glasses, making its own 2011 TVs incompatible with the previous year’s 3D glasses and vice versa. That’s also crappy way to treat your customers, and pretty much on par for the company and its short lived Android smartphones and tablets, where updates are a hit or miss affair.

Samsung has had four years to observe how its largest client Apple does business and how it treats its own customers. But Samsung hasn’t copied Apple in many areas that matter, because Samsung isn’t interested in delivering the state of the art in building innovative new products to wow customers. It’s primarily interested in appropriating Apple’s goodwill to sell its own inferior products to customers by hoodwinking them into thinking that its own emotionless product duplicates are the same as Apple’s.

If you want to find prior art of that kind of copying, try watching “Invasion of the Body Snatchers.”

28 comments

1 makemineamac { 08.23.11 at 10:49 pm }

Great write-up. As usual, you leave no stone unturned. Thanks for the additional insight into this comedy by Samsung…

2 GamePlayInc { 08.23.11 at 11:15 pm }

Thanks for putting things back in their place!

3 Brau { 08.24.11 at 12:41 am }

Strange suit. On one hand I have to agree with Samsung in that it wasn’t the form of the iPhone that blew my mind, it was the OS and groundbreaking interface/software features. I also agree the basic form factor for a slate has been around for decades. That said, I also believe Samsung is absolutely trying to cash in on looking ever so close to many of apple’s products, hoping to benefit from their leading image. It reminds me of all the copying going on in automotive design, where BMW or Mercedes release a new design only to have those concepts ripped off by every Asian automaker the next year. If Apple’s fortunes are anything like BMW, it could be another fruitless patent battle. In the end, win or lose, I think Apple benefits as it openly outs the competition as lacking originality … a second rate follower in the eyes of most consumers.

4 kdaeseok { 08.24.11 at 1:56 am }

Anything worth reading?

5 Desperate-Dan { 08.24.11 at 2:04 am }

The guys who are criticising Apple for taking Samsung to court over this are the very same ones who are saying that they want competition in the marketplace because that’s what spurs innovation. However if all the competition does is slavishly copy the market leader there is very little innovation taking place. Why ca’t they see this?

Now I hear loads of people saying that they are getting bored with iOS as it only ever changes incrementally and fancy something a bit different. Good luck with that as the only real alternative is a bug ridden iOS clone that burns through batteries like a power drill and is a security nightmare just waiting to happen.

I know judges aren’t usually at the cutting edge of tech knowledge but maybe it’s so amazingly obvious that Apple will have no trouble in winning that it possibly explains why Google is so sh!t scared that it paid so much over the odds for Motorolla.

2010 was the year of Android and I think 2011 will be be seen as the year when the wheels started to come loose and 2012 the year they actually fell off.

6 Maniac { 08.24.11 at 2:48 am }

@ kdaeseok – Read it and weep.

7 Maniac { 08.24.11 at 2:55 am }

Just FYI, the “IBM Tele Pads” used in filming “2001: A Space Odyssey” were rear-projection screens built into the sets. Movie projectors played the appropriate images for filming on all computer monitors and displays. Easier to synchronize frame rates that way.

Bowman and Poole never move their Tele Pads. Now you know why.

8 KTachyon { 08.24.11 at 3:02 am }

Apple registered the design in 2004, before Samsung’s photo frame.

9 mailjohannes { 08.24.11 at 3:33 am }

I did buy the iPad because it reminded me of a gadget from a SF film.
The iPad reminded me of the magic of the transparent tablets of Avatar. Apple has some work to do to achieve that level of technology though.
I think it’s unwise to sue Samsung, especially in Europe.
Samsung will get more attention than they deserve and will be in an underdog position. Bad big Apple suing hard working Samsung.
By the way, Samsungs television commercials – in Holland – for it’s Galaxy (whatever) are also a blatant rip-off of Apples own Internet commercials. I find that a little annoying and misleading. But I guess the general public has to find out for themselves that the product isn’t as depicted.
A colleague at work showed me his new Samsung (whatever) phone, and told me he wasn’t able to answer his new phone the first time he was called because he couldn’t find out how. The point was that pressing the green (virtual) phone button on the screen didn’t work, you first had to press the button and slide it to the right, but almost no indication that you had to do something special and no clue what special action was needed. This is a major interface design blunder and doesn’t bode well for the rest of the OS.
Apple will lose a few customers to Samsung, but most will come back the next run.

J.

10 Jim F. { 08.24.11 at 7:29 am }

Spot on Daniel. Always a good read with excellent insights. More to ponder why other companies do not focus on what they do best – but copy the DEDICATION that Apple shows in the tasks it does well.

11 JPTJr { 08.24.11 at 9:11 am }

Excellent summary; captures the essence of Apple’s multiple lawsuits against Samsung where other journalists completely gloss over it. My favorite line: “. . . only focused on shipping a ‘smooth’ number of boxes into the channel.”

12 Mike { 08.24.11 at 10:54 am }

Yup, I thought Sammy’s argument that the iPad was featured in Star Trek and 2001: A Space Odyssey was weird. Now I know for sure. And yeah, while we’re at it, design patents usually aren’t contested, so Samsung should be slapped fairly hard for imitating the hardware so closely. Now if only their mobile division was as creative as their chip or LCD division…

13 curtis119 { 08.24.11 at 12:19 pm }

Excellent article as usual. Thanks. I don’t understand why Apple continues to be Samsungs largest customer. In fact. I don’t understand why Apple hasn’t built their own factories here in the USA (or anywhere for that matter). Apple loves to own the entire product and contracting out the manufacturing seems so UN-Apple to me. Could you write an article about this please?

14 relativity { 08.24.11 at 1:26 pm }

Dan, why won’t Apple hire a proven “kool-aid” genius like you. Oh right, Apple don’t want premature leak-jaculations.

On Samsung’s defense, though, they did make a fine iPad2 imitation in the “revised” Tab 10.1 down to “what matters” to Apple geeks – thinness and battery longevity.

Meh, I don’t care one bit that Samsung copied the ipad2. After all, imitation is the sencerest form of flattery. Apple should be flattered and blushing. Samsung is not and will not make a dent to iPad2 or 3′s dominance one bit.

Maybe Sammy can buy out the webOS guys from HP. At least the Touchpad made a very interesting weekend for people looking for a good alternative to iPad and Android for a great price! Samsung might as well got a clue from this event – or not.

15 jmfree { 08.24.11 at 1:33 pm }

Note that an estimated 75% of all new drugs approved by the FDA are “me too” drugs, and that to gain approval they don’t even have to work as well as the existing drugs they are copying .

This is only by way of illustrating how superficial and venal the ordinary corporate mentality is, and how it is hardly unique to electronics or, for that matter, Samsung.

This also points to the vast landscape of incompetence that pervades the typical corporate bureaucracy and our modern workforce, who are given innumerable opportunities to hide that incompetence behind committees, procedures, titles, and the lowest of all measures of real value: quarterly accounting.

The above, aside from creating products that deliver what they promise and are aligned with popular needs, is what sets apart the company Jobs has created. From this point of view, Apple is everything that a huge percentage of companies are not, and fully justifies the admiration and market value heaped upon it.

Apple is also a very rare example of just reward, which cuts both ways in their case: leaving the half-wits in the dust and profiting handsomely, while investing considerable resources in making sure these same incompetents have a hard time getting credit for innovation they had nothing to do with.

It is only regrettable that this kind of justice should come as a private initiative and funding (Apple’s) instead of a public resources. If the patent system were strengthened, better funded, and aligned more closely with the Justice Department, perhaps we would indeed see more innovation in all our industries, from big as well as small players, as methods are improved to help assure just rewards.

And the FDA needs quite a lot of cleaning up in this regard as well.

16 relativity { 08.24.11 at 4:22 pm }

“FDA needs quite a lot of cleaning up in this regard as well”

I think the 20-year patent exclusivity the FDA gives pharma companies are fair in the name of competition and innovation. Note that this 20-year exclusivity covers the trial (beta) testing period so drugs like Viagra’s time is almost up.

But you are right, the generics are not literally copies of the original. They just have to be “close” enough to the original to be granted license by the FDA. Acetaminophen is not Tylenol, per se.

Here is a nice excerpt from Wikipedia:

“…A patent being an exclusionary right does not, however, necessarily give the owner of the patent the right to exploit the patent. For example, many inventions are improvements of prior inventions that may still be covered by someone else’s patent. If an inventor takes an existing, patented mouse trap design, adds a new feature to make an improved mouse trap, and obtains a patent on the improvement, he or she can only legally build his or her improved mouse trap with permission from the patent holder of the original mouse trap, assuming the original patent is still in force. On the other hand, the owner of the improved mouse trap can exclude the original patent owner from using the improvement…”

Say, Samsung did shamelessly copied Apple’s iPad patents verbatim but improved (or changed) many of Apple’s iPad patents – the thinness, case shape, materials used, the zero bezel, the screen density, the user interface, etc – then, by interpretation, Apple cannot “exploit” their patent to lock Samsung into “improving” their existing patents.

Apple cannot, by this very clause, prevent any company from taking their “inventions” and improving up on it. If Apple is blocking Samsung, HTC, or anyone else then they may be guilty of monopolistic intent and that is where Apple is clearly heading these days.

17 FreeRange { 08.24.11 at 4:41 pm }

Dan – brilliant piece. It also took me down memory lane – dropping LSD and going to see 2001 on the big screen.

@ relativity above, what pseudo intellectual crap! I love it when someone tries to use Wikipedia as a legal text and then attempts to provide legal insight as if they are a Harvard educated lawyer but instead gives an embarrassingly ignorant rant.

18 kerryb { 08.24.11 at 4:58 pm }

a couple of years ago a friend who is not tech savvy looked at another nerdy friend’s Android phone and ask if it was an iPhone, I told him no, and then he asked is it a iPhone copy then? I though a few seconds and answered “yes”.
Sure everyone reading this website can spot an Apple device from a herd of Droid clones but a huge part of the tablet buying public cannot. This is what this suit is about.

19 relativity { 08.24.11 at 6:27 pm }

@FreeRange

And who exactly are you to discredit Wikipedia?

If you prefer legalese nonsense from the USPTO archives then knock yourself out! Majority of Wikipedia articles happened to be authored by intelligent and authoritative people with the pragmatism to donate their free time so a “pseudo-intellectually crap[ped]” geek like me have a place I can go to for fun, non-legalistic crap explanation of what-not subjects.

If you have nothing to add to this thread besides smacking your Steven Tylers up Dan’s “brilliant piece” then move along. We don’t need stupid criticisms backed up by chronic idiocy like yours.

20 jmfree { 08.24.11 at 7:55 pm }

Dear Madame relativity,

Who is this “we” you speak of?

21 JohnWatkins { 08.24.11 at 8:04 pm }

I’m amused at all the commenters on this issue (everywhere not just here) who seem incapable of differentiating between design patents and utility patents.This suit is all about design patents. There huge difference between the two in principle, function, and intent. Despite their hilarious hijinks, Samsung doesn’t have a chance of winning this.

22 Neil Anderson { 08.24.11 at 8:24 pm }

“Open the pad bay doors, Apple.”

“I’m sorry, Sammy. I’m afraid I can’t do that.”

23 nextguy { 08.24.11 at 11:51 pm }

I think a lot of stuff got smaller since we now have LED back lit screens and technology got smaller. I mean, they didn’t make their TVs ultra slim because of apple.

“Even Samsung’s subsequent photo frames (like the one below, from 2008, after the original iPhone was released) abandoned any fleeting similarity with the design Apple would later use throughout its iOS devices, instead pursuing an angular, squared shape with lots of navigational buttons on the front, the very antithesis of Apple’s mobile designs.”

What’s the image to the right? The ipad? Not sure. In any case, it still is a rectangle with a bezel. Not much of a stretch from one to another.

Oh well, the judge disagreed to bar anything at this time for the injunction.

“Android’s user interface lags because it lacks full hardware acceleration for a variety of screen animations that iOS performs with flawless grace.”

Not true since 2.3. Not that it matters, as the original android phones have no issues with screen animations anyhow.

“Samsung can pull allnighters perusing Star Trek and Dr Who looking for prior art, but the fact remains that people didn’t buy the iPad because it reminded them of Samsung’s photo frame, or a special effect they first observed while dropping LSD, or a fantasy book depicted in a work of fiction to function like a TV. They bought it because of Apple’s solid reputation for building the iPhone as a smartly designed, genius simple handheld computer in the body of a cell phone. They bought it because it delivered a sense of magical wonderment.”

Prior art is prior art for designs, regardless of source or time in the EU.

“The company’s smartphones and tablets didn’t adopt the lines of its 2006 photo frame; they copied the look of Motorola flip phones, Nokia candy bar phones, and Microsoft reference designs for Tablet PC/UMPC, right up until Apple’s iPhone and iPad became popular, at which point Samsung began copying Apple.”

Heh, I remember Motorola calling Samsung “Samesung.”

Of course Motorola isn’t insecure/a dick about competing in the marketplace like apple.

“Samsung’s original Android tablets can’t run a software update that arrived just a few months after the product shipped. Samsung knew it was coming but only focused on shipping a “smooth” number of boxes into the channel, not on delivering value or a good product for its customers. Steve Jobs flatly predicted that Samsung would abandon its early adopters to move on to another design, and sure enough it did within about six months.”

The original tab still receives updates, and moved to 2.3.

“Last year I bought a Samsung 3D HDTV. This year, the company arbitrarily changed the design of its ~$100 pairs of 3D glasses, making its own 2011 TVs incompatible with the previous year’s 3D glasses and vice versa. That’s also crappy way to treat your customers, and pretty much on par for the company and its short lived Android smartphones and tablets, where updates are a hit or miss affair.”

Or maybe they improved the technology and as such advanced the state of the art. Oh, and they agreed to make newer ones work interchangeably with Sony and Panasonic.

Doesn’t sound like Samsung is a dick when someone exposes your one sided thinking.

24 gus2000 { 08.25.11 at 9:27 am }

There are no new ideas. Everybody copies the works of others…we are standing on the shoulders of giants, after all.

However, the law provides temporary protection from copying so that those who invest the effort can recoup and profit. It might be better for the consumer if competition were opened up by unchecked theft of intellectual property…except for when all R&D stopped because there was no longer profit in it.

Samsung’s legal filings are a de-facto admission. Yes, pop culture counts as prior art, but that does not mean Apple’s works do not deserve protection, nor does it mean that Samsung’s works did not use elements from Apple’s protected designs. “We copied but they copied first!” is hardly a defense.

For those of you that think a little copying can’t hurt, keep in mind that until Steve showed the Macintosh to Bill, computer interfaces looked like this:

C:>_

It took 20 years for Apple to overcome that mistake. They’re not going to make that mistake again.

25 bitburn { 08.25.11 at 9:37 pm }

Thanks Dan. Nice piece. Everything in its place ;)

26 mhikl { 08.29.11 at 1:36 pm }

Such a thorough article and not a mean word. You have more patience than I do, Dan.

27 Howard { 09.10.11 at 8:08 pm }

Another sport on, comprehensive piece of analysis Daniel.

Not just that but a damning indictment of the total lack of ambition and innovation by Samsung. A company that seems to have no ambition higher than leaching on other’s idea; copying other’s innovation and originality.

Sad really. I now look at Samsung products across the board with suspicion and pity where I used to find them somewhat attractive.

28 dizzy { 06.30.12 at 5:46 pm }

Great article.

While you make very good arguments, your blatant bias towards Apple destroys some of your credibility and journalistic objectivity.

Things that stick out like a sour thumb are your unjustifiable opinion that Samsung does not innovate, creates inferior products and the suggestive notion that Samsung is very familiar with ripping of their clients. Your article is only made weaker by these claims. I understand you think highly of Apple and Steve Jobs, for reasons you have outlined. However, They’re not exactly angels, and Samsung aren’t exactly bad guys either.

I didn’t intend to argue any of your points made, I just wanted to point out that bashing Samsung, IMO, doesn’t do your article any justice. There are very good arguments to be made about Samsungs innovations and quality of products that have nothing to do with this particular topic.

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