Samsung and Google need a new dress

Samsung and Google need a new dress

Summary: In the aftermath of the verdict of the Apple v. Samsung trial, one thing has become abundantly clear: A unique product and brand identity, or trade dress, is critical for Android OEMs going forward.


So. The Apple and Samsung Verdict. Happened.

After weeks of speculation and predictive analysis by the tech media, it all came down to this verdict reached by the Jury and read by Judge Lucy Koh:

Samsung willfully infringed on some Apple patents with a large portfolio of their smartphone and tablet products released as 28 devices across 9 US wireless carriers.

Also See: Samsung Smartphones ruled in violation of Apple patents (Gallery)

Now, I don't want to delve into whether or not the verdict was correct, or if the jury did their job properly, or how Samsung is going to go about the appeals process or if they will even succeed while trying.

All of those things are unknowns and the process of sorting it out from a legal perspective will take time. A long time.

What is known is that in the here and now, Samsung and Google are going to have to make physical and software changes in current and future Android smartphones, tablets and the OS in order to satisfy the judgment, at least until such time the whole or parts of the judgment are reversed.

That is, if the are ever reversed and/or the penalties are reduced. And not just Samsung and Google are affected – all Android OEMs are now affected, because Apple will seek bans on all sorts of products now that they have a legal precedent.


That includes current Samsung products on the market, like the Galaxy Nexus and the Galaxy S3 and the Galaxy Note. And perhaps even current Android phones made by other OEMs such as HTC, or tablets like the Google Nexus 7 made and co-branded by ASUS which run the latest Jelly Bean OS.

So what kind of physical and software changes are we talking about here?

Well, three of the patents, D'677, D'087 and D'305 essentially amount to what is referred to as "Trade Dress."

What is Trade Dress? It is a non-tangible asset that your company owns -- it covers the way your product looks, so that it is unmistakable that it originates from a particular source.

One of the reasons why Samsung got dinged so badly, presumably, is that Apple was able to conclusively prove to the jury there was customer confusion between what products Apple sold and what products Samsung sold, and that Samsung did this on purpose.

In essence, that Samsung willfully copied Apple's trade dress, damaging Apple's sales. Apple could be awarded significantly higher damages by Judge Koh -- to the tune of triple the amount of the $1 Billion plus that the jury awarded because of this finding alone.

As some of you may know I also write about the food and restaurant industry. I had the opportunity a few years ago to participate in a seminar offered by Cowan, Liebowitz & Latman, a law firm in New York City that specializes in intellectual property litigation.

The firm has a great video online that covers, among other subjects, trade dress in the food, beverage and restaurant industry, and I encourage you to view it because it makes these concepts very easy to understand.

While there are clearly big differences between the type of intellectual property assets a company like Apple may have versus a McDonalds or a Coca-Cola, the concepts are indeed very similar.

Apple's front face on the iPhone is very distinctive, as is the general outline of iPhone, as covered by D'677 and D'087.

This is not unlike how Coca-Cola has patented and has protected the shape of their curved bottle, which is an important IP asset and an essential part of the company's trade dress. No other beverage company can use a bottle which looks like that.

By the same token, Samsung (and every other Android OEM) now has to develop a unique trade dress for their phones and tablets. Curiously, the Galaxy Tab 10.1 was found to not infringe on Apple's D'889, which covers the industrial design of the iPad, but Apple is now challenging this in court as well.

For Samsung and other OEMs, they may have to use unique colors, different casing shapes, faceplate decoration, et cetera to clearly differentiate from Apple's trade dress.

This applies to everything from these vendors in the release pipeline or in current development.

Assuming the Korean electronics giant will want to stay in the smartphone and tablet business, as opposed to being strictly a component and contract manufacturer, it may even make sense for Samsung to buy companies that have also patented trade dresses for mobile devices, and also have portfolios that include basic patents along the same lines as Apple.

I can think of two companies that (probably) have design patents along these lines -- Research in Motion and Nokia, for starters. Google owns Motorola, and may decide to use their designs as a foundation for the trade dress of future Nexus devices, which could be manufactured by any of their partners, including Samsung, HTC or even Asus.

Next we get to having to change the trade dress of Android itself. 13 devices that Samsung manufactured violated patent D'305, which covers a grid of rounded square icons against a black background -- the trade dress of Apple's iOS.

There's a bunch of ways Google could handle this. Obviously, change the icons to circles or some other shape, and change the arrangement of the icon grid, perhaps to something more geometric.

In any case, it needs to patent it when it is done.

Now, Samsung used a "skin" on their phones or a UI overlays on top of vanilla Android which presumably caused the infingement.

But it should go without saying that Google's mobile OS itself, particularly if we are of the general mindset that the future of Android devices is likely in Nexus-branded equipment, that going forward it requires the same types of patent protection Apple has in place for iOS's UI.

Not all of the infringing patents are hardware or software trade dress related. Some are legitimate software functionality patents, such as D'381, D'915 and D'163, which cover many of the multi-touch gestures we come to think of as very basic in the operation of mobile devices, such as pinch to zoom/twist and touch scrolls.

While it has been quoted by the jury foreman that Android itself did not infringe, the patents above do cover functionality which is replicated in many products that use Android.

So it is entirely possible we are going to see massive over-the-air updates which will be feature rollbacks on Samsung and other OEM phones which run on Android in order to comply with the verdict or avoid further litigation.

Additionally, new software UI approaches by Google, Samsung and other OEMs may be required in order to compensate for the loss of functionality. 

As to whether this new trade dress that Samsung and Google will have to take on will result in successful Android-based products in the future is a very big unknown. 

This is a major concern for Android, because my ZDNet colleague James Kendrick posits that Apple may have stumbled upon a fundamental smartphone/tablet design that it has secured critical industry patents for and may have a strong affinity towards preferred consumer functional and aesthetic biases.

In plain English: It could be that Apple mobile device industrial design and user interface is the only kind that consumers really want.

I hope he is wrong, but he may be right. And if that's the case, there isn't a dress that Samsung or Google can put on Android devices that will make them look pretty in the eyes of the smartphone and tablet-buying public.

Does Samsung and Google need a new dress? Talk Back and Let Me Know.

Topics: Samsung, Android, Apple, Google, iOS, Mobile OS


Jason Perlow, Sr. Technology Editor at ZDNet, is a technologist with over two decades of experience integrating large heterogeneous multi-vendor computing environments in Fortune 500 companies. Jason is currently a Partner Technology Strategist with Microsoft Corp. His expressed views do not necessarily represent those of his employer.

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  • MS has successfully done this with it's live tiles ux. And they added

    greatly improved usability over ios in the process of developing their virtualized panorama views. Theres no reason google couldnt also do it although now they have to avoid MS live tiles and panorama trade dress too. The challenge for google will be hiring the talented designers because clearly they dont have them already. If they do samsung should just adopt it instead of burying it.
    Johnny Vegas
    • Last time i checked

      It was far from successful!
      • Successful or not...

        it is still a better system than the Windows Program Manager style of grids of icons on iOS.

        Microsoft realised in the mid-90s that grids of icons were no longer cool, Apple went all retro; and somehow managed to patent it! :-S
        • Well, I don't see these WIndows phones as that successful

          even amongst Windows users. You might like it, but personally, I like the iPhone. I may want it to have a larger screen, but what size? That I'm stlll trying to figure out what would ultimately be the best size screen. I personally think the Galaxy screen size is a little TOO big. It's impressive at first, but I think for a smartphone, I think the iPhone just needs to be a LITTLE wider and a LITTLE taller, have really good resolution and then be able to be bright in the day time without running down the battery. I don't like OLED because of the burn in problems associated with it.

          I'm waiting to see how good the next iPhone is.
          • What did Apple really invent?

          • So what you really mean is

            that Samsung, Microsoft, Google have all been lousy at patenting?
            Because if they had then Apple would not have been able to patent all this, right?
          • TiOracle

            Interesting pic. There is one glaring lie - the F700 was not released 6 months prior to the original iPhone... but even if it was Apple engineers are good but not so good as to develop, manufacture, and release a "copycat" device in that short of a time span. Samsungg OTOH had access to quite a few of Apple's designs as they manufactured them. The Sony Ericson was a feature phone and the UI did not have an entire screen that was a rid of icons. The "slide to unlock" patent of Apple's is comprised of several elements not just the motion.

            I could go on with this but I've proven the point that the pic you linked to is nothing but FUD.
        • The tiles interface is MS' best innovation in years

          It is something truly different, simple and effective that differentiates their products. It's a shame they've only half committed to the paradigm with Win8, because they could have built something truly revolutionary. Instead, it's a half-assed punk attempt to be all things to all people. A committed dive into Metro, backward compatibility be damned, coupled with Kinect on the PC as an analog to touch on tablets would have changed the way the world uses computers. Instead MS is releasing a mealy, gray, bowl of blah in a Windows 8 box and a Surface "tablet" that is really a bad laptop with a rubber keyboard.
          • square icons on a grid...

            rounded or not, has been the standard for computing devices since Xerox. I'll be happy to show images of the first unix GUIs or even dig up the old Xerox screen image. Wtf are we going to have to do? will Apple next require every episode of Star Trek to be edited to have "hexagonal" tablets because Gene Roddenberry did not patent the rectangular ones?

            Apple has done some pretty stupid things in the past, but I don't think adding them all up would be as stupid as suing people for using computing devices that are the minimum amount of material beyond the display. And that is basically what phones are now, a display and the minimum amount of material required to cover the components squished to fit under the screen. no one wants to carry around a NEO GEO handheld as their cell phone...

            Apple should sue Nintendo for every gameboy design ever made, except the dual screen models. because they were all rectangles with a bezel. And I never noticed Coke had their own bottle shape, I just thought that was how glass soda bottle looked back in the old days and no one ever thought to change them.

            Oh, Apple needs to sue digital watch makers too, because those are rectangles with a display also.

            Are "analog" picture frame companies next on your list Apple?

            I think I have a rectangular alarm clock too...

            how about my car stereo? it is a rectangle with a display.

            Lenovo better watch out with their convertible notebook/tablet design too... many of those run windows XP and have rectangular icons on a grid display.

            I guess Apple needs to sue me too, as I have used solid black (or nearly so) backgrounds on all my computing devices for at least the last 14 years.

            The display on the laptop I am using, if powered off and turned upside down looks exactly like an iPad, the company logo is in the correct place to become the speaker section and the webcam is positioned to be the home button (again, if you turn it upside down)... I guess Apple needs to go sue Dell also.

            Thanks a f'ing lot global Patent systems, you just gave Apple the ability to sue every other company in the world for making any rectangular device with a display. When is the first shuttle to Mars? I want off this stupid rock.
        • Better system based on what?

          If you had said you like it better you would have been making a valid point but you didn't.
      • Not successful?

        WP7? Phones are selling, not being given away like Android, (What would Android's share be like if it wasn't the OS found on the cheap to free phones, I wonder?) so it has gotten people's attention.

        So I guess it all depends on what someone determines as successful. The Edsel would have been the most successful car ever made if Ford didn't charge anything for it.
        William Farrel
        • Given away?

          The S3 certainly isn't free, and it is one of the fastest selling phones in history. The thing about Android that is so great is there are a variety of phones available at various prices, in different shapes, and in different sizes. Personally, I don't want just one choice. Competition through differentiation is best for the customer. Competition through litigation is ridiculous.
          • It's fast selling because

            Samsung is paying spiffs to these reps and they are pushing it on people. But I didn't see people lining up around the corner when they made the announcement.

            I already know someone that got one because the rep was pushing it, using misleading sales tactics and after a month of owning one she wants to get an iPhone. She used to have an iPhone, but it was stolen. She bought the Galaxy (she's not a BIG tech geek) because of the screen size was attractive. BUT she has had nothing problem reception problems, texting problems, she said it is harder to use than her iPhone and she almost returned it, but since the iPhone 5 won't be announced for another month, she is deciding to to switch later. But, she said that the iPhone could easily be used with one hand, which she liked. The Galaxy was just confusing in comparison. She is using Android 4.0.4, which I have read on various forums that it has lots of bugs.
          • Funny

            This is a funny comment.. I remember when Samsung released the Samsung Galaxy S... Captivate and Vibrant. The Captivate was and sitll is a better phone than the Iphone in my opinion.... Every AT&T store I went in to look at the captivate the reps there always ... and I mean ALWAYS steered me toward the IPHONE. Even the mall Kiosks were steering users to the IPHONE. I went to the AT&T store and I told them I wanted the Captivate (a few years ago) and the rep tried to convince me that the IPHONE was the phone to get and that I would not be happy with the Captivate because of this or that etc....... In reality when AT&T had exclusive rights to the IPHONE all the reps were pushing IPHONES over every other smart phone in the store............ This verdict hurts everyone..... So now we know one individual can patent something and make everyone pay for it.. What did apple invnet. I watched the old HAL 2000 movie from the 1980s or 1970s and there is a tablet in the movie and it looks like an IPAD but it clearly states SAMSUNG on the tablet... hmmmmmmmmm. ... I don't even remember appble being a buzz word back then....... I am no fanboy.... I have an IPAD and I have more than one Android tablet in my home. (granted the IPAD is used by my daughter) both serve a for phones..... this judge is sick and manybe too old to realize that things change and maybe some of these Patent laws need to be changed. Come on a patent for the way ICONS look on the screen.. hmmmmm maybe IBM needs to come back and sue everyone ... rememeber the days of OS/2 where the program ICONS looked.... just like the ones on the IPHONE/Windows7 and every other system out there. All this ... APPLE is washed up for real........ All this verdict will do is cause someone to get something to change a few things in Android. I assure you no one was tricked into buying any of these devices... you get a 30 day buyers remorse on most items. I am so over it................ Apple products will no longer have a place in my home..... The are good products but I refuse to support a company that does things like this.
            Akil Lynch
          • He's talking Android in general

            as though Android is what everyone is out looking for, regardless of price. Yes, the G3 is a fine phone, and is selling very nicely. Nokia Lumia sold out in no time too.

            So there's definately a market for both. To claim that Android is so sucessful because it's selling in large amounts is a misnomer because a large amount of those phones wern't sold at all, they where the free phones given away with teh 2 year contract.
            William Farrel
        • Giving away?

          Right now, the best selling phone is the Galaxy III. Who is giving those away? Last month when I bought 2 new phones, they couldn't be found subsized for less than $300 a pop (and over $600 without contract).

          Yes, there are a lot of cheaper handsets, and after subsidies (which often means the cost of the phone is amortized over the length of the contract, and if you keep the phone longer than that, the carrier wins). Microsoft's problem is a dearth of OEMs making the phone. If they want to cherry pick the high-end of the market, well, they have to be content with a tiny marketshare. If they want to swim in the pool with the majority of available customers, then it needs to be on cheaper phones that the masses can afford. Most phone users are not gadget geeks, but have use for features found on smartphones. The way to their hearts is via price.
          • It's not the price on Win Phones...

            It's the carriers.

            Verizon/Sprint won't carry them (I think Verizon technically has one).
          • You can't carry something

            That doesn't exist. Take the Nokia Lumia phones. Nokia chose to make them for AT&T rather than Verizon. That's Nokia's choice, not Verizon's. I remember years ago when Verizon's deal with Microsoft prevented them from carrying the iPhone. Little known fact Apple went to Verizon first, but due to a recently signed deal with Microsoft (at the time, circa 2005) Verizon had to decline.
            Troll Hunter J
          • Samsung is just doing everything they can to get sales

            because they have a small window between their product announcement and the upcoming iPhone. But when the iPhone 5 gets released, there will be lines around the block at Apple Stores and other stores that carry it. I think there will be a lot of compelling reasons to buy it.
          • Not so much a small window

            as more people are switching to Android because the Iphone has lost it's "it" factor. Android does have the lion's share of the market right now and Samsung is the top seller. Even with the "new" Iphone 5 they're bringing out it's really only bringing.....what the GS3 already has essentially but on a smaller screen. Nothing groundbreaking, just the same old minor improvement with each year as usual. The GS3 is selling like hotcakes because it is that great high end alternative to it everyone has been waiting for and people love it because of that plus everything else it has to offer. Samsung got sued because they're taking more of the market away than Apple expected. All it did was cause a surge in GS3 sales recently because of the shiftiness of it all. Even if they are guilty, people don't take to well to partners suing each other. It often has a reverse effect. Apple's greed and "practices" have been vilified for years, this just deepens the hole. Especially over as vague of "patents" as were involved. It's ridiculous to say the least and the jury may well have cost Apple more than they "won". It's far from over yet. Just watch. People love underdogs. I was glad I got an S3 and dropped my 4s like it like the plague as soon as I used one.