“Confusingly Similar”: Kare’s Testimony in the Apple-Samsung Trial, Pt. 2

by DMR2012 on August 21, 2012

In my last post, I noted some of Susan Kare’s testimony. If you recall, Susan Kare is one of the original icon developers for Macintosh and Microsoft. In the Apple-Samsung trial, she is on retainer for Apple, earning $550 per hour for her work in the Apple case. She claimed that the Galaxy S Samsung models and the iPhone are “confusingly similar,” so similar that she picked up a Samsung model thinking it was the iPhone. The last post deals with Kare’s claims that it is hard to distinguish an iPhone from a Samsung Galaxy S phone. Charles Verhoeven, one of Samsung’s attorneys, tried to demonstrate that Kare’s testimony was a bit rehearsed and forged. This post will tackle more of Kare’s testimony and Verhoeven’s cross-examination at the trial.

 

One of the issues Verhoeven (Samsung lawyer) examined with Susan Kare (the iPhone’s icon designer) was that which she knew much about: icons. Verhoeven had Susan Kare compare and contrast the iPhone’s SMS icon from the Samsung Fascinate’s “Messages” icon. While both icons had the same color and bubble in them, they were not identical to each other. She made the same statements about the YouTube icons and calendar icons. When questioned about whether or not there was a “stocks” or “maps” icon on the Samsung Fascinate, Kare agreed with him and said there was no presence of these symbols that one would find on an iPhone. What about the iPhone’s “phone” icon? The symbol is that of a telephone, but this is universal to phones the world over. Again, this is not something that Samsung copied from Apple; rather, it is something that has been used as a symbol long before the emergence of the iPhone in 2007.

 

Verhoeven does something that many would consider to be genius: he questions Kare about the “green” color of the phone icon:

 

“Green means go, doesn’t it? Apple doesn’t own the color green, does it?” (http://www.theverge.com/2012/8/7/3225646/susan-kare-testimony-mac-icon-apple-samsung-trial)

 

This is a good question. Apple claims that Samsung copied its icons and infringed on its icon copyright patent; nevertheless, what about the icon color? If Apple can receive a patent on every specific icon on its iPhone desktop, it can start to claim that the color green cannot belong on any icons except its own. At some point, patent wars get out of hand to the point that a company could go on to own the color green when it appears on an icon. The same can be said for the shape of an icon: does Apple own the icon shapes? Apple’s claim that it owns icons (including shape) and the rectangular shape of its tablets is an attempt to do what a UK judge stated about Apple: the company wants to “patent the rectangle.” If this is the case, Etch-A-Sketch has already beat Apple to the punchline: the Etch-A-Sketch was rectangular and could change from portrait to landscape mode when you turned it. This was long before the heyday of the iPhone.

Verhoeven asks Susan Kare about the home button displayed at the bottom of the iPhone, the circle with a white square within it. This button takes you back to the starting desktop when you do not know where to go from an operation or webpage. Is the home button part of the trade dress patent that Apple owns? Kare could not answer this (so she claimed). What about the alphabetical order of the applications on the main screen: does Apple own the alphabetical icon arrangement? Kare stated that she does not prize alphabetical above non-alphabetical arrangements, although alphabetical helps the phone user. As Anthony Wing Kosner of Forbes said, this is an issue of “easing,” not of copyright infringement. Easing is a concept that innovators use to create devices that are accessible to the consumer public. When a smartphone buyer opens the box or purchases his or her smartphone, he or she does not need to keep a manual glued to his person in order to learn how to operate the device; rather, an individual can purchase a smartphone now and become well acquainted with it after an hour or two.

 

 

Since Susan Kare is the icon designer, Verhoeven spends the majority of time inquiring about things that only an icon designer would know. Charles Verhoeven hammers two other issues with Kare: 1) the concept of icon shapes and 2) icon shapes. Why does he address the concept of icon shapes? He does this because Apple has been so meticulous in claiming that everything about its icons is original to the company alone and that Samsung has infringed on its copyright by using similar icons. If Verhoeven can make the case that the icons themselves are “universally recognized” and help users understand what an icon means, then Verhoeven will have dealt a large blow to Apple’s infringement accusations.

 

First, he examines Kare’s statements regarding the concept of icon shapes. In Verhoeven’s argument, he wants to make the case that “a picture is worth a thousand words” and communicates more information in a faster amount of time than words. Kare’s response? “Sometimes, a picture is universal.” This was a semi-agreement with Verhoeven, although Kare attempts to hold her ground about the icon pictures in order to represent Apple in style. Once she agrees to some sort of universal appeal with regard to pictures, he goes one step further and aims for a discussion about the icon shapes. Verhoeven asks her if triangular shapes can accomplish what square shapes with rounded edges can. Kare then acknowledges that the shape of the human finger determines what proper icon shapes are.

 

The above information presents only a small portion of Verhoeven’s cross-examination with Susan Kare. It is safe to say, though, that Susan Kare confirmed Verhoeven’s line of logic. If the iPhone was designed with consumer convenience and “easing” in mind, then why would the Samsung Fascinate be designed for any other purpose than consumer convenience?

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