Samsung and Google need a new dress

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.
Written by Jason Perlow, Senior Contributing Writer

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.

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