The patent case between Apple and Samsung regarding the iPad and Galaxytab has been an ongoing issue. Apple won an injunction against the sale of the Galaxy Tab in Australia, then saw the decision reversed, only for it to be re-applied by a higher court. A number of outlets reported on the advice Apple has given Samsung in order to avoid its design patents.
The advice takes the form of expert testimony from Peter W. Bressler, an industrial designer hired by Apple as a consultant on the case. His testimony is a rebuttal against the obviousness argument filed by another expert on behalf of Samsung. The Samsung expert, Mr Sherman, is attempting to argue that an ordinary observer would come up with the Apple design as a natural evolution of tablet computing. Mr Bressler, for Apple, disagrees.
The fight gets a bit dirty, with the Apple expert claiming that the Samsung expert isn't really an expert (because he didn't go to an industrial design school, apparently), but even if he were an expert, it wouldn't matter, because his argument is wrong anyway – and that he, Mr Bressler, is the one true expert, and he doesn't believe the Apple design is obvious. In page upon page of testimony Bressler argues why the Apple design is so unique, but in the end it comes down to things like rounded corners and centering the touch screen. Some highlights from the testimony (edited for brevity) (see online version):
Based on my understanding of the appropriate test of obviousness and my review of Mr. Sherman’s declaration, Mr. Sherman obviousness analysis is not correct. [..]
First, Mr. Sherman does not purport to opine on whether an ordinary observer would find the prior art he constructs as substantially the same as the Apple designs. I have [..]
Mr. Sherman’s opinion is purportedly based on his experience “in the telecommunication industry” and “mobile handsets technology and products.” (Id. ¶ 6.) This is not sufficient to establish expertise in consumer perceptions. [..]
In contrast, industrial designers are trained to understand how consumers respond to visual cues and aesthetics. [..]
Mr. Sherman testified that he has never studied marketing, industrial design, or minimalism.Third, it is my opinion that a designer of ordinary skill in the art is a designer who is experienced in the industrial design of consumer electronic devices. [..]
Mr. Sherman is not a designer of ordinary skill in the art because he is not an industrial designer and has no experience as an industrial designer. He has taken no coursework in industrial design.
The testimony then goes into detail about what Mr Bressler considers so special about the design of the iPad, and how a competing design could avoid conflicting with the Apple patents. These summary points were covered in the news media this week and were brilliantly torn apart in this post by Thomas Baekdal. They are, in summary:
- Not a minimalist design (from sec 4.)
- Square corners rather than round corners (sec 79)
- Front surface that isn't flat (sec 79)
- Thick frames around the front surface (sec 79).
- Profiles that aren't thin.
- A front surface with decorations (sec 79)
- Cluttered appearance.
Samsung argues that the design is obvious and there is really no way around it (that is just part of it, this case is complicated and IANAL, but this part is easy to understand – that both the iPad and the Galaxytabs are natural evolutions of tablet computing).
I find this interesting because I was involved in the Crunchpad project while at Techcrunch. It was an attempt to build a cheap tablet computer and we started the project a full two years before the iPad was announced. Apple is attempting to patent protect features of a design that we had published years before the iPad was announced. Our own designs were inspired by previous tablet designs, and minimalism in a tablet wasn't first seen with Apple and the iPad.
We had no idea about the iPad, nor the patents, and I would consider us to be ordinary observers, and the design we came up with is exactly like what iPad became, including the points discussed above.
So I share the same opinion as Samsung – a design for a modern tablet is obvious and an evolution of previous design. There was a lot of prior art when we began the Crunchpad project, and having a tablet that was touch controlled rather than with a stylus wasn't really a revolutionary idea since there were a number of component manufacturers at the time who were scaling up their touch controllers to larger dimensions (9″, 11″, 12″ etc.) in preparation for this market.
When we described the idea we had for the Crunchpad to potential partners, ODM's, component suppliers, etc. everybody just got it, you didn't even need to sketch it. Fact is that most knew that this market was about to explode since the components were becoming cheap enough (specifically screens and touch controllers) and mobile processors powerful enough to the point where a tablet could market for $500 – the right price point for mass consumer adoption.
In touring with various component manufacturers and ODM's in 2008 and 2009 it was apparent that everything required for a cheap tablet was ready and waiting, it just needed somebody to bring it all together and take it to market.
Here is a summary of our prior art from working on a cheap and portable tablet long before Apple announced the iPad. Almost all of the design aspects that Apple lay claim to in the case against Samsung had already been incorporated into the Crunchpad and other prototypes we had seen at the time.
I believe that the Crunchpad is evidence that the Samsung argument is valid, that an independent observer would come up with what looks like the iPad as a natural evolution of tablet computing
As a reminder, the iPad was announced on the 27th of January 2010. Our timeline begins eighteen months prior to that.
First Announcement – 21st of July 2008
The first post about the Crunchpad went up including this prototype design, featuring a rectangle shape, rounded corners, a flat back, an LCD screen with a consistant margin around the outside and a touchscreen controller.
Prototype A – August 2008
I built this prototype including a basic software stack, in 2008 shortly after the first announcement. A touch screen centered in a rectangle package with a flat back and a screen that was flush with the casing.
Prototype B – mid-2009
Design drawings of a pre-manufacture prototype.
Prototype C – mid-late 2009
We had two prototype designs manufactured. We had the orange model shown below, a white model and a black model. Again the points that Apple consider unique to the iPad were incorporated into this design:
The Crunchpad went on to launch as The JooJoo (long story).