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Samsung’s Galaxy is bigger, lighter, and has a plastic back. Apple’s iPhone 4s is smaller, heavier, and has a glassy/metallic back. But these differences didn’t stop Susan Kare, the designer of the original Mac icon set, from confusing the two.
And it happened while she was comparing the two smartphones when prepping for her expert witness testimony for the Apple-Samsung lawsuit.
Kare helped create the iconic look and feel of the original Mac. So she should know a thing or two about design … and she should be adept at reading a design language … the hard-to-define but very real visual personality of a product or brand.
And yet she confused the two products, according to her testimony today in court.
Presumably, Kare was fooled by the home screen on some of the older Samsung models, where the design language is indeed somewhat similar to Apple’s iOS:
Above: iPhone vs Samsung
Similarities include a top bar for utility icons and time, an icon grid four across and potentially five down, and of course the home icons at the bottom, resting on a shelf or different colored background.
Newer Samsung Galaxy S3s, on the other hand, are almost always portrayed in official Samsung promo shots with only a few icons and fewer obvious similarities:
Testimony like Kare’s is dangerous for Samsung since the jury may, according to intellectual property expert Peter Toren, simply eyeball the two options when making a decision:
While design patents are litigated far less frequently than utility patents, and many companies do not even seek design patent protection, infringement of a design patent may be far easier for a jury to understand. A design patent protects only the ornamental appearance of an invention, not its utilitarian features. The general test for infringement for a design patent is relatively simple: Does the alleged infringer’s product design appear substantially the same as the patentee’s design?
While a patentee can buttress its evidence of the similarity of designs through the testimony, for example, of industry observers, consumers, and business partners, jurors can use their own eyes for a side-by-side comparison and decide for themselves if the products look substantially the same. It certainly does not depend on understanding highly complex technical matters.
The implication that Apple lawyers are doubtless attempting to insinuate in the jury’s mind: If a designer cannot tell the difference herself … how can the average person?
Of course, Samsung may well feel that Kare originally worked for Apple may have some influence on her impressions.
Image credit: Yuri Arcours/ShutterStock