Samsung’s Billion Dollar Question
Samsung’s Billion Dollar Question
Samsung’s Billion Dollar Question

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    This is a guest blog post by Jorge Contreras, American University, Washington College of Law.

    Despite its own protestations to the contrary, I am confident
    that the rumors of Samsung’s demise have been greatly exaggerated.  Of course, the Korean electronics giant
    can’t be happy about the $1.05 billion verdict handed down by a San Jose jury
    last Friday.  It will be even less
    happy if Judge Koh imposes another $2.10 billion in punitive damages on account
    of Samsung’s “willful” infringement. 
    And spirits in Seoul will surely sink if the judge grants Apple’s
    request to enjoin the future sale of infringing Samsung products in the U.S.

    But Samsung, not to mention other manufacturers of
    Android-based gadgets, will weather these setbacks and, I predict, be back in
    the ring within a few months.  And
    I don’t base that view on the inevitable appeals of the jury verdict.  Those will come, much to the delight of
    the (many,  many) clever lawyers
    employed by each side.  And those
    appeals will take years.  Some
    commentators are already salivating at the thought of a Supreme Court rematch some
    time in the distant future.  We all
    know that there will be plenty of room to reverse the findings of the nine
    beleaguered laypeople who slogged through 109 pages of written instructions for
    3 days in San Jose.  But not all of
    the verdicts will be reversed, and the appellate decisions will come far too
    late to make any difference in the market as we currently understand it.

    No, Samsung’s immediate game plan must be re-design.  And the good news for Samsung, and
    other Android makers, is that it shouldn’t be too hard.

    Samsung and Google, the creator of the Android operating
    system, correctly predicted that there would be an overwhelming public appetite
    for fully-featured smart phones and tablets at price points well below
    Apple’s. Google released
    Android for free to support an ad-based revenue model.  And device manufacturers like Samsung,
    HTC and others leaped at the opportunity to compete in the enormous market that
    Apple, to its great credit, created with the iPhone and iPad.  But Samsung and Google made one serious
    tactical error that, in hindsight, is now clear.  Their products looked, and worked, a little too much like

    For Samsung, this mistake might be excusable.  The consumer products that it has sold
    for decades all look the same.  Who
    can tell a Samsung Blu-ray player from a Sony or a Toshiba or a Panasonic
    player?  The same goes for
    flat-screen TVs, window air conditioners and even microwave ovens. They are all
    utilitarian black (or silver or white) boxes, without much to distinguish them
    other than their internal features, price and performance.  Nobody predicted a couple of years ago
    that relatively esoteric legal rights like design patents and registered trade
    dress would play a major, and decisive, role in the shape of consumer
    electronics products.

    On the software side, one could argue that Google should
    have known better.  Companies have
    been fighting over the “look and feel” of software user interfaces since the bygone
    days of Borland and Lotus (that would be the late ‘80s, for younger readers).  And, to be honest, the icons, screen layouts
    and other visuals of Android do look a lot like Apple’s. Now we know that the
    similarity was too close. 
    “Infringing” is the legal term.

    The good news, however, is that these problems should not be
    too difficult to fix.  Let’s start
    with the software.  Is there any
    reason that app icons need to be squares with rounded edges?  Of course not.  How about circles, or octagons, or
    pictures without borders?  Any high
    school computer science student could make that fix in a matter of hours.  Would the change diminish the user’s
    experience?  Of course not.  While the new “look” of Android icons
    would take a few seconds to get used to, how many users would forego an Android
    device just to enjoy the rounded-squares that were offered before?  Maybe a few (a very few) would change
    their buying preferences on that basis, but those consumers were probably Apple
    customers anyway.  Android is going
    after a lower-end, price-sensitive market.  Would most teenagers sacrifice rounded squares to save a
    couple hundred dollars?  Probably.

    Icon design is just one aspect of the Android software that
    would need to be changed in order to avoid infringing Apple’s intellectual
    property rights.  There are others,
    some more difficult to circumvent. 
    Apple’s “utility” patents, in particular, would take some effort to
    design around.  Thus, Android would
    need to find substitutes for patented features like “pinch to zoom”, “tap to
    center” and “bounce-back”.  But
    there is a wide range of alternatives even for these features.  Zooming could be accomplished with
    buttons, or slider bars, or moving one’s finger in a circle, or tapping the
    phone on one’s forehead, or some other clever, but yet unanticipated mechanism
    (not that I’m guaranteeing that Apple doesn’t have a patent covering some of these
    variants as well – obviously somebody needs to do a bit of patent research
    before launching into redesign). 
    Again, assuming that the basic smart phone/tablet functionality is
    preserved, would these changes weaken Android’s market appeal?  I doubt it, at least not in a
    significant enough way to make a difference.  Remember, just a few years ago cell phone users tapped out
    text messages using a 10-digit keypad (tap “1” three times for “c”, and hold
    down for a few seconds to capitalize). 
    In fact, users became quite good at it, and $20 phones held their own
    against $200 Blackberries with full qwerty keyboards for quite a while.

    And what about the physical product design?  Apple’s trial team made great use of
    graphics depicting long rows of Samsung devices that looked suspiciously like
    iPhones.  And they described in
    loving, laborious detail the angst (and dollars) that went into Apple’s vaunted
    design effort.  But who ever sees
    the famous “rounded bezel” these days? 
    Nobody:  because almost
    everyone who owns an expensive iPhone sticks it into a protective
    shell/casing/sleeve the moment it comes out of its patent-protected 2-piece
    box.  And, by the way, those
    protective shells look NOTHING like the sleek design patented by Apple.  They are fluorescent pink with Hello
    Kitty stencils, ruggedized black rubber, polka-dotted, bling-encrusted,
    spill-proof and otherwise blatantly “non-infringing”.  Suffice it to say: 
    Samsung’s product redesign should not be hard, and I suspect that
    consumers ultimately won’t care. 
    Within six months, I predict that Samsung could be back on the market
    with a redesigned, non-infringing product that consumers will embrace.

    So where does this leave Apple, with its market-defining
    design and scads of patents?  It
    will remain at the top of the market, where it has always wanted to be.  People who love great design, who take
    their devices out of their protective shells at night to admire their bezels
    and sleek curves, like Porsche owners who lovingly wax their vintage Carreras
    after everyone else has gone to bed, will keep buying.  And so will consumers who value Apple
    products for the Apple “ecosystem” with its seamless connectivity, effortless
    backup and ubiquitous cloud presence. 
    But that’s not everyone, and not everyone wants, or can afford, a $400
    phone and a $600 tablet (service plan not included).  There is a vast market for Samsung and other Android device
    makers to tap.  If they can steer
    clear of the intellectual property held by Apple and other proprietary platform
    vendors, both camps should be able to coexist and consumers will enjoy the
    greatest choice and flexibility, which is when markets work best.