Another day, another docket of hired expert witnesses in the Apple v. Samsung (who copied what). First up was Apple’s hired-expert Kent Van Liere testifying that many consumers aren’t able to tell the difference between Samsung phones and the iPhone or between iPad and Samsung tablets. This evidence is based on polling consumers to see if they could differentiate between the two Apple and Samsung products. According to the survey, a high number of people could not.
Apple’s argument is that several Samsung products copy the iPhone and iPad’s “trade dress,” which is a product’s unique characteristics that consumers use to identify it. Apple claims that Samsung produced products so similar to the iPhone and iPad that average people mistakenly identify them as Apple products.
Apple also called on ORC International researcher Hal Poret, who polled 582 consumers who purchased mobile phones in the past year or were likely purchase one in the next 12 months. Poret’s research found that people generally associate the iPhone and iPad’s trade dress with Apple.
However, Samsung’s attorneys questioned the credibility of Poret’s study claiming that they were biased towards Apple.
Referencing Van Liere and Poret’s finding, Apple’s third expert witness, NYU Marketing Professor Russell Winer stated Van Liere’s study reveals that 52 percent of consumers surveyed confused pictures of a Samsung Fascinate with an iPhone. Winer wrote that only 14 percent of the survey’s participants confused an unnamed “control device” with Apple’s products. Poret’s report suggests that consumers recall the iPhone and iPad’s trade dress long after similar competing products hit retail.
“The Poret Report contains results from a June 2011 survey that shows that the distinctive look of the iPhone remained a strong source identifier for Apple nearly a year after Samsung released the first of its accused products,” Winer wrote. “68.0% of respondents who were shown a disguised image of an iPhone 3G—with the icons on the face of the phone blurred and the ‘home’ button covered with a sticker—still identified it with Apple, iPhone, or a similar Apple-related product name.”
Samsung’s attorney, Bill Price, criticized the reports from Apple’s witnesses as unfair since the “control device” surveyed against the Galaxy Tab was a Nook Color. Price argued the studies shouldn’t have used a product that consumers see as an e-reader and that Apple should have used a tablet from Motorola or LG instead.
Continuing on the long list of expert witnesses, Apple then called on University of Toronto Computer Science Professor Ravin Balakrishnan who testified that Apple’s patented “bounce back” effect used in iOS is a distinctive Apple product feature that helps avoid consumer confusion. Balakrishnan went on to claim that since Samsung’s phone incorporate this effect, 21 of Samsung’s devices are infringing on Apple’s patent. However, Samsung’s attorney, Kevin Johnson, was able to make Balakrishnan admit that it is possible to reproduce the bounce back effect without violating Apple’s patent. On to a bit of transparency, according to Mercury News’ live blog, Balakrishnan has billed Apple $500,000 for his testimony in 9 different cases.
Apple’s lawyers used Samsung’s internal comparison of the iPhone and its products throughout this entire trial. In one instance Apple’s legal team presented a document in which Samsung stated that the iPhone was “easy to copy.” Including a comparison to the bounce back effect.
This trial is showing no signs of cooling down, as both companies are set to resume battle on Monday. This is like playing out better than any daytime Court TV show, we want more!