Chapter Title: Patent War Today: Apple vs.

Samsung

Book Title: Examining the Role of Patent Quality in Large-Scale "Patent War" Litigation
Book Subtitle: A Historical Comparison and Proposal for a Restorative U.S. Patent
System
Book Author(s): Wael Zohni
Published by: Nomos Verlagsgesellschaft mbH

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IV. Patent War Today: Apple vs. Samsung

Apple’s iPhone 3 disrupted the cell phone market in 2007. It brought a

new touchscreen-driven user interface that made integration of features
and navigating utilities on a mobile communication and computing device
much easier than ever before. The series of Apple vs. Samsung cases be‐
ginning in 2010 represent the start of the “Smartphone Wars.” Although
many companies later became involved in associated litigation, this case
was the central conflict, taking on a scale that stretched over several coun‐
tries and jurisdictions. The narrative on these two companies and their le‐
gal confrontation has been the topic of films and popular periodicals.56

A. Background

1. iPhone vs. Galaxy

Top secret efforts on the iPhone began at Apple in 2004. Internal product
teams had proposed the concept of a mobile phone with integrated com‐
puting in prior years, but Apple CEO Steve Jobs had been reluctant to
move ahead due to apprehensions with existing market competition and
dependence on third party cellular service companies. He also had techni‐
cal concerns with achieving adequate internet connectivity on a mobile
handset. A major shift in attitude occurred after Apple design director
Jony Ive produced impressive smartphone mock-up units that showcased
the “multi-touch glass” concept.57 The company then moved ahead with
smarthphone development.
By January 2007 Jobs announced the new iPhone product at the annual
MacWorld show in San Francisco, CA. The cell phone establishment did
not think the iPhone would be successful and for the first nine months of
2008, the iPhone did not gain much traction. As the market became more

56 Eichenwald, supra
57 Id.

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 A. Background

aware of the iPhone and its features, demand increased to where Apple’s
production could no longer keep up with demand.58
Samsung, which was struggling in the smartphone market, understood
it had to react to the iPhone sensation.59 As the company worked on a new
design, it began to resemble the iPhone itself both physically as well as in
user interface features. In March 2010 the Samsung Galaxy S product was
announced at the CTIA Wireless trade show. 60
Despite Jobs’ initial outrage at discovering the Galaxy S and its similar‐
ities to the iPhone, Apple pursued negotiations in hopes Samsung would
agree to a license agreement. Then in March 2011 Samsung introduced a
tablet computer resembling Apple’s iPad2. Viewed as yet another “grand
theft,” Jobs reached a breaking point and launched a federal lawsuit
against Samsung in a Northern California District Court for their infringe‐
ment on both the iPhone and iPad. Apparently Samsung had been pre‐
pared as they responded with countersuits in Germany, Korea, Japan and
the U.S. Related suits were eventually brought to Britain, France, Italy,
Spain, Australia, and the Netherlands as well as federal court in Delaware
and with the U.S. International Trade Commission (ITC).61

2. Patent Litigation

The subsequent global legal battle between Apple and Samsung has be‐
come famous for its size and scope and is associated with largest jury
award for patent infringement in history (over one billion US dollars ini‐
tially). The case has gone several rounds, spanning years and continents,
and involved various patents introduced at each stage.62 The following
discussion mainly considers initial actions taken by the parties in trying to

58 Id.
59 Id.
60 Id.
61 Id.
62 Eingestellt von Florian Mueller, Apple, Samsung provide final list of patents and
accused products for California spring trial, Foss Patents (Feb. 2014), http://www
.fosspatents.com/2014/02/apple-samsung-provide-final-list-of.html (accessed Aug
27, 2017)

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IV. Patent War Today: Apple vs. Samsung

assert Smartphone rights as well as selected subsequent events that charac‐

terize the overall engagement.63
This starting round of the patent war was based on seven patents from
Apple asserted against Samsung. Samsung’s countersuit was based on five
patents. The total of twelve patents are described below:64
Apple:
– 7,469,381: touchscreen actions, including dragging, pinch zoom,
multi-touch, and bounce.
– 7,844,915: Application Program Interface (API) for a touch-sensi‐
tive devices.
– 7,864,163: touchscreen zoom and navigation methods.
– D618,677: design patent for physical structure of an early iPhone.
– D593,087: design patent for general outline of another early
iPhone.
– D504,889: design patent for layout of an iPad tablet.
– D604,305: design patent for the “graphical user interface” (GPU).
Samsung65:
– 7,675,941: mobile phone 3G data transfer capabilities.
– 7,447,516: other mobile phone 3G capabilities.
– 7,698,711: MP3 playback technology for a mobile device.
– 7,577,460: a “communication terminal” for cellphone and camera
data transfer
– 7,456,893: a method for indexing user’s place in a gallery of im‐
ages.
It is telling that Apple selected the above seven patents out of their portfo‐
lio of more than 1,300 patents in mobile electronics technology. This
short-list, the majority of which are design patents, reflect a distillation to
the iPhone’s most noteworthy and appealing user features.66 The “Total

63 Charles Mauro, Apple v. Samsung: Impact and Implications for Product Design,
User Interface Design (UX), Software Development and the Future of High-Tech‐
nology Consumer Products, PulseUX Blog (Dec 2012), http://www.mauronewme
dia.com/blog/apple-v-samsung-implications-for-product-design-user-interface-ux-
design-software-development-and-the-future-of-high-technology-consumer-produ
cts/ (accessed Aug 25, 2017)
64 David Kravets, Who Cheated Whom? Apple v. Samsung Patent Showdown Ex‐
plained, Wired (July 2012), https://www.wired.com/2012/07/apple-v-samsung-exp
lained/ (accessed Aug 27, 2017)
65 Id.
66 Mauro, supra

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 B. Rulings

User Interface and Experience” (TUX) engineering community has resul‐

tantly taken notice of this case. As one industry expert, Charles Mauro
CHFP (Certified Human Factors Engineering Professional) has described,
the selected patents from Apple cover largely artistic aspects of both the
hardware and software yet, in combination with the user-interface, aims
for a “whole greater than the parts effect.”67 The design patents cover the
simple but elegant design of the iPhone form factor while the utility
patents covered characteristic human interface features designed to ease
access to internet resources such as email and web browsing. Samsung on
the other hand, appears to have selected their patents “piece-meal” based
on each claim’s individual chances for broad application to mobile phone
technology.68
In 2012 a California jury acknowledged Samsung’s “copying” of the
iPhone and awarded Apple $1.05 billion out of the $2.75 billion sought,
but this was only the beginning of a long line of legal battles involving
other patent infringement claims.69 For example, Apple filed another law‐
suit against Samsung in February 2012 on another set of patents maintain‐
ing that Samsung “has systematically copied Apple’s innovative technolo‐
gy and products, features, and designs, and has deluged markets with in‐
fringing devices in an effort to usurp market share from Apple.”70

B. Rulings

Despite the one billion dollar award for Apple in their first case, Samsung
has been able to secure increasing amounts of market share as subsequent
legal clashes have worn on. They have produced the “Apple-ish, only
cheaper” Galaxy smartphone as well as derivative products such as tablets
that leverage the same technologies and have gained market share and
technical capability in the process.71

67 Id.
68 Id.
69 Apple Corporation v. Samsung Electronics. Ltd, No. 5:2011cv 01846 (N.D. Cal.
Apr.15, 2011)
70 Tibken, supra referencing Apple Corporation v. Samsung Electronics. Ltd, No.
5:2012cv 00630 (N.D. Cal. Feb. 8, 2012)
71 Eichenwald, supra

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IV. Patent War Today: Apple vs. Samsung

For further insight into the extensive litigation, the following offers a
selective review of associated rulings. The complex technical exchanges
that were to follow also gave rise to fundamental legal questions associat‐
ed with calculating appropriate damages for product infringement. These
issues ultimately made their way to the U.S. Supreme Court.72

1. Patent Battles, Product War

Although it appears that the legal engagement between Apple and Sam‐
sung has finally drawn to a close with announcement of a settlement in
June 2018, this development arrives only after years of costly international
litigation. The seven-year confrontation has been characterized by a back
and forth struggle that holds true to the popular “war” analogy. Both sides
have had rounds of success and failure in the smaller battles confined to
subsets of patents or jurisdictions. Some observers felt the first court deci‐
sion against Samsung would have spelled their end in the smartphone mar‐
ket, but this has clearly not been the case.73 Although Apple was able to
obtain rewards that acknowledge the patent protection that surrounds their
iPhone user experience, there were later cases when such patents were
called into question and even invalidated. At the same time, although
Samsung was often penalized for allegedly “copying” the iPhone and
iPad, they were able to show that Apple did indeed infringe on some of
their mobile technology patents. This record makes for lack of a clear vic‐
tor in the smartphone war.
In line with this paper’s analysis, this section intends to highlight three
of the Apple patents that were found to be either invalid or unclear during
subsequent litigation with Samsung. As with the list of original seven
patents from the 2011 first filed case, the below utility patents reflect the
“Total User Experience” (TUX) aspect of the iPhone product. One of the
key questions to be considered later is the potential relationship between
Apple’s product-centric approach and recent trends in patent quality.

72 Samsung Electronics v. Apple Inc., No. 15-777 (S. Ct. Dec. 6, 2016)
73 Joe Mullin, Apple’s $120M jury Verdict against Samsung destroyed on appeal, Ar‐
stechnica (Feb. 2016), https://arstechnica.com/tech-policy/2016/02/appeals-court-r
everses-apple-v-samsung-ii-strips-away-apples-120m-jury-verdict/ (accessed Aug
27, 2017)

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 B. Rulings

The first two Apple patents for consideration are 8,046,721 and
8,074,172 which describe the “swipe to unlock” and “auto-correct” spell
check features respectively. Both patents were ruled invalid in February
2016 by the Court of Appeals for the Federal Circuit because claims
“would have been obvious based on the prior art”; reversing the previous
decision of infringement by the U.S. District Court for Northern District of
California.74
Patent ‘721 primarily claims “A method of unlocking a hand-held elec‐
tronic device, .. including a touch-sensitive display, the method compris‐
ing: ..continuously moving the unlock image on the touch-sensitive dis‐
play ..wherein the unlock image is a graphical, interactive user-interface
object …” The Federal Circuit court opinion provides that the ‘721 patent
is “directed to the ‘slide to unlock’ feature of the iPhone. As described in
the specification, one problem with a portable device with a touchscreen is
the accidental activation of features..cell phone manufacturers had long
used ‘well-known’ procedures to prevent this, by locking the phone (i.e.,
not recognizing any touch inputs).. The ’721 patent claims a particular
method of unlocking. The user touches one particular place on the screen
where an image appears and, while continuously touching the screen,
moves his finger to move the image to another part of the screen.”75
During the trial, Samsung provided two prior art references: a “NeoN‐
ode” N1 Quickstart Guide from 2004 and a presentation by “Plaisant”
from a computer conference taking place in 1992. They argued these two
references make Apple’s ‘721 claims obvious.76 Samsung’s motion for
“judgment as a matter of law” (JMOL) on invalidity was initially denied
by the California District Court.
The NeoNode art provides an unlocking sequence for a touchscreen
phone whereby the user “continuously” moves a finger on the surface of
the screen. It also includes the feature of having text reading “Right sweep
to unlock” on the screen to instruct users. Even Apple did not deny that
this art captured essential elements of their claim, leaving only that Apple
added a dynamic on-screen image whereas NeoNode did not call out for
any such “moving image” response. Samsung argued that the second ref‐
erence, the “Plaisant paper,” provides this missing element with descrip‐
tion of “six different touchscreen-based toggle switches to be used by

74 Apple Inc. v. Samsung Electronics Co. Ltd., No. 15-1171 (Fed. Cir. Feb. 26, 2016)
75 Id.
76 Id.

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IV. Patent War Today: Apple vs. Samsung

novice or occasional users to control two state (on/off) devices in a touch‐

screen environment.” Two of these toggle switch representations, “slider
toggle” and “lever toggle” shown below, closely resemble the “slide-to-
unlock” feature of the iPhone.77

Figure 1: “slider toggle” on the bottom left and the “lever toggle” bot‐
tom right78
Together, this prior art invalidated Apple’s ‘721 patent.
The second patent (‘172, not to be confused with above ‘721) con‐
cerned Apple’s claims for an automated spelling correction feature known
as “autocorrect.” This patent’s primary claim is a “method, comprising:
a..touch screen display: in a first area..displaying a current character .. in a
second area of the touch screen .. displaying the current character string or
a portion thereof and a suggested replacement character string..”79
As with the ‘721 patent, it describes a software-based interactive touch‐
screen feature. In this case the user can have spelling-correction sugges‐
tions appear on an intermediate scroll bar. Prior art was identified in U.S.
patent 7,880,730 from Tegic Communications, LTD which includes a
claim for a “..text entry system comprising .. an auto-correcting keyboard
region comprising a plurality of the members of a character set, wherein
locations having known coordinates in the auto-correcting keyboard re‐
gion are associated with corresponding character set members..” Once
again, Apple was not able to refute the similarity to this reference but in‐

77 Id.
78 Id.
79 Id.

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 B. Rulings

sisted that Samsung had nonetheless copied their recent implementation of

this feature with the iPhone.80
In a third example, the Federal Circuit reversed findings of infringe‐
ment by Samsung on Apple patent 5,946,647 based not on invalidity, but
interpretation of the claims language. The District court jury had originally
awarded nearly one-hundred million dollars to Apple on this patent after
Samsung’s request for JMOL was denied. Apple patent ‘647 describes a
“tap-to-link” single-touch response feature that allows users to dial num‐
bers or visit websites without cutting and pasting the link. The primary
claim provides a “system for detecting structures in data and performing
actions on detected structures, comprising: an input device..an output de‐
vice..; a memory..including program routines including an analyzer server
for detecting structures in the data, and for linking actions to the detected
structures.”81
Neither Samsung nor Apple had pursued formal interpretation of what
comprised an “analyzer server” so the Federal Circuit resorted to an “ordi‐
nary meaning” interpretation of their own. Citing another case, Motorola,
757 F.3d at 1304, the court had “construed ‘analyzer server’ to mean ‘a
server routine separate from a client that receives data having structures
from the client.’” In other words, the term “server” denoted a client-server
configuration where a host resource is providing processing capability to a
remote client. Therefore Apple’s view of the “analyzer server” simply be‐
ing “a program routine(s) that receives data, uses patterns to detect struc‐
tures in the data and links actions to the detected structures ”– and that
“the analyzer server need not be ‘separate from a client’ ” was rejected
because it ignored the commonly held meaning by those familiar with the
art.82
Apple’s expert witness attempted to retrofit the operation of iPhone’s
tap-link function into the refined definition by emphasizing the critical
software resided on a different portion of the phone’s memory and proces‐
sor and thus could be considered a separate “server” in the established
sense. The court rejected this argument stating “this testimony is not suffi‐
cient evidence to allow a jury to conclude that the Samsung software met
the ‘analyzer server’ limitation .. client-server computing is a distributed

80 Id.
81 Id.
82 Id.(emphasis added)

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IV. Patent War Today: Apple vs. Samsung

computing model in which client applications request services from server

processes.”83

2. Section 289 Damages

As if technical aspects of patent interpretation and determining infringe‐

ment between Apple and Samsung were not complex enough, the magni‐
tude of the judgment awards being generated by juries over various trials
soon led to fundamental questions regarding how these values were calcu‐
lated. For example, in March 2013 U.S. District Court Judge Lucy Koh or‐
dered “a new trial to recalculate some of the damages in the case, striking
four-hundred and fifty million dollars off the original judgment against
Samsung.”84
Further questions on damage calculations ultimately made their way to
the U.S. Supreme Court with a key decision provided in December
2016.85 The decision reversed and remanded a prior judgment by the U.S.
Federal Circuit Court of Appeals which based damages on total sales en‐
joyed by Samsung’s infringing product line. Leading technology com‐
panies such as Google and Facebook had lobbied the Supreme Court to
hear Samsung’s appeal due to concerns that the sizable judgments made
against it “will lead to absurd results and have a devastating impact on
companies because of the implications of how patent law is applied to
technology products such as smartphones.”
In the written summary of the unanimous Supreme Court opinion,
Judge Sotomayor first described that “Section 289 of the Patent Act makes
it unlawful to manufacture or sell an ‘article of manufacture’ to which a
patented design or a colorable imitation thereof has been applied and
makes an infringer liable to the patent holder ‘to the extent of his total
profit.’ ..35 USC. § 289 “ It goes on to describe how a jury awarded Apple
about four-hundred million dollars in damages according to “Samsung’s
entire profit from the sale of its infringing smartphones.” The Federal Cir‐
cuit rejected Samsung arguments for reduced damages “because the rele‐
vant articles of manufacture were the front face or screen rather than the
entire smartphone” and that “components of Samsung’s smartphones were

83 Id.(emphasis added)
84 Tibken, supra
85 Samsung Electronics v. Apple Inc., No. 15-777 (S. Ct. Dec. 6, 2016)

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 C. Analysis

not sold separately to ordinary consumers and thus were not distinct arti‐
cles of manufacture.”86
The Supreme Court reversed this Federal Circuit decision and instead
held that “in the case of a multi-component product, the relevant ‘article of
manufacture’ for arriving at a § 289 damages award need not be the end
product sold to the consumer but may be only a component of that prod‐
uct.” § 171(a) of the Patent Act permits “a design patent that extends to
only a component of a multi-component product..” Finally, Judge
Satomayor provides ”because the term ‘article of manufacture’ is broad
enough to embrace both a product sold to a consumer and a component of
that product, whether sold separately or not, the Federal Circuit’s narrower
reading cannot be squared with § 289’s text.” 87 The case was remanded
for calculation of reduced damages.88
This decision should have a significant impact on future high-technolo‐
gy litigation in that it bounds potential damage awards for infringement.
Many stakeholders have expectedly welcomed the Supreme Court rul‐
ing.”89 Nonetheless, these events provide a dramatic example of the
tremendous losses that may result from not properly bounding associated
exclusive rights in the first place.

C. Analysis

Although the Apple vs. Samsung litigation saga has apparently come to a
close, it will take more time to understand the full impact it may have on
future technology disputes. In the meantime, there are numerous indica‐
tions that have been made thus far. Discussed below are notable observa‐
tions, which include the scale of the litigation, trends in patent protection
strategy, and the apparent state of the current patent system.

86 Samsung v. Apple , 15-777 at 1

87 Id.
88 Crum, supra
89 Id.

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IV. Patent War Today: Apple vs. Samsung

1. Colossal Legal War

The Apple vs. Samsung patent war has taken on a grand scale, lasting more
than seven years, costing more than a billion dollars and spread as wide as
four continents. Some contend that even though it has been one of the
“bloodiest corporate wars in history,” Apple “may have won legal battles
but still lost the war.” A source near Apple reports “that the endless fight‐
ing has been a drain on the company, both emotionally and financially.” 90
During the last year of his life, Steve Jobs spoke of Apple’s patent-viola‐
tion lawsuit against Google, whose Android mobile operating system en‐
abled Samsung’s smartphones: “Our lawsuit is saying, ‘Google, you (ex‐
pletive) ripped off the iPhone, wholesale ripped us off.’ Grand theft.’” 91
Perhaps most will identify with Steve Jobs’ outrage and agree that Sam‐
sung has largely succeeded in mimicking a revolutionary product concept
introduced by Apple.
Still, questions remain as to how much of the iPhone was truly pro‐
tectable from competitors from a patent standpoint and whether the iPhone
itself relied on technologies held by Samsung and others. Each party was
prepared with plentiful “ammunition” in the form of vast patent portfolios
but were selective with their patents when it came to trial. Although this
approach may have been strategic, especially in the case of Apple, Judge
Lucy Koh had also forced the companies to limit the number of claims set
forth in order to ease the process for an overwhelmed jury.92 Future cases
may not have such limits set.
This paper takes the view that the scale of litigation was indeed exces‐
sive. Although Apple had some initial success with the 2012 U.S. District
Court ruling, the follow-up litigation probably indicated they were starting
to throw “good money after bad.” Neither Apple nor Samsung achieved
complete success in their legal war. In South Korea infringement was
found on both sides. In Japan a court did not accept an Apple claim. In
Germany, there was a sales ban on the Galaxy Tab 10.1 due to its close
match in appearance and function to Apple’s iPad2. In Britain, a court

90 Eichenwald, supra
91 Diamond, supra
92 Paul R. Gugliuzza, Patent Trolls and Preemption, 101 No. 6 Virginia Law Review
1579 1590 (October 2015)

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 C. Analysis

found for Samsung, stating that its tablet was “not as cool” as the iPad so
would not mislead customers.93

2. Invention vs. “Cool” Product

Industry analysis of this case suggests that TUX design will become more
important as individual features become less separable from accumulating
technology. In light of the Apple case, TUX analyst Mauro asserts:
“Smart companies going forward will work with their IP counsel to frame
patent applications and related litigation toward protecting the total user expe‐
rience of their products. But the road to an IP strategy like Apple’s that focus‐
es on the total user experience may not be an easy one. The current legal sys‐
tem works in exactly the opposite direction by requiring inventors to slice up
their products into many features ..”94
Nonetheless, Apple’s strategy of clustering TUX patents appears to have
met with some success. Continuing along this path may afford companies
more opportunity to fortify their trade dress claims with related patent fil‐
ings. As developments in TUX become more dramatic and distinguished,
companies may begin attempts to patent such combinations “to protect
the ..‘whole’ of their user experience solutions across all relevant cus‐
tomer touchpoints.”95
The prospect of leveraging patent rights into trademark-like protection
is an unintended and detrimental consequence of such a trend. Should
identification of a “cluster of patents that combine to drive high levels of
user engagement” become an invention itself? TUX developers appear ex‐
cited that Apple has taken first steps to doing just that.96 These concerns
are discussed further below.

3. Questionable Patents

In addition to revealing Apple’s TUX patent clustering strategy, the case

also highlights fundamental questions of whether these types of software

93 Eichenwald, supra
94 Mauron, supra
95 Id.
96 Id.

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IV. Patent War Today: Apple vs. Samsung

patents should qualify for utility patent protection in the first place. Legal
analysts have suggested that both Apple and Samsung incorporated “intel‐
lectual property that should never have been patented.” 97 Author and le‐
gal scholar from UC Hastings College of the Law, Robin Feldman, com‐
mented on the favorable ruling for Apple in 2012 with:
“Regardless of the outcome of the trial, we might want to step back and con‐
sider whether society should be granting such powerful rights so easily. Are
the features at issue here really deserving of so much protection? .. On the
whole, the trial is one more indication of a patent system that has lost its bear‐
ings, with litigation rather than innovation leading the way.”98
The iPhone was undoubtedly an impressive and groundbreaking product
from a consumer perspective but whether it deserved the enormous trans‐
actional costs associated with utilizing legal resources for prosecution and
litigation in this way is a long term question that society will have to an‐
swer. Given the descriptions of many of the Apple software patents in con‐
tention, it does not appear reasonable for the companies to have spent well
over one billion dollars and corresponding public resources to try and se‐
cure absolute command of the smartphone market through such means. As
the 2016 GAO report indicates, the abstract and ubiquitous nature of soft‐
ware seems to have only added to the patent quality problem.99
Transactional costs are not limited to litigation. In an academic article
from Berkeley Law School appearing in 2012 author Thomas H. Chia pro‐
vides:
“Smartphone companies are amassing enormous patent portfolios in order to
remain competitive against a rival’s patent portfolio...This patent strategy is
analogous to the military tactic of mutually assured destruction. However,
continually amassing patents under a mutually assured destruction strategy
may not be financially sustainable or desirable from the perspective of tech‐
nological innovation.”100
The USPTO is already overwhelmed with applications and wrestling with
quality issues. The flood of questionable software patent applications due
to this “amassing” only adds to difficulties.

97 Kravets, supra
98 Id.
99 GAO-16-490 at 0
100 Thomas H. Chia, Fighting the Smartphone Patent War with RAND-Encumbered
Patents, 27 Berkeley Technology Law Journal 209, 214 (2012)

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