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Summary:

A leading design patent expert predicts that Apple (NSDQ: AAPL) will be unable to stop Samsung from selling its Galaxy tablet in the United…

A look at photo capabilities in the iPad
photo: Apple

A leading design patent expert predicts that Apple (NSDQ: AAPL) will be unable to stop Samsung from selling its Galaxy tablet in the United States in the near future, and says the press has misunderstood a dramatic moment in the patent trial taking place between the tech giants. Court filings unsealed this week in California suggest he is right.

Recall that, in October, U.S. District Judge Lucy Koh waved two tablets in the air and asked Samsung’s attorney if he could tell which was the Galaxy and which was the iPad. The attorney replied “not at this distance, your Honor.” News agencies soon suggested the episode meant Apple had gained the upper hand in its global tablet fight with Samsung which it has accused of “slavishly copying” its designs.

It turns out the tablet-waving episode may not matter after all. According to Christopher V. Carani, who is chair of the American Bar Association’s Design Rights committee, the crucial moment at the hearing came later when Judge Koh referred to a Knight-Ridder tablet from 1994 and remarked “I think that invalidates” the Apple patent. He set out his thoughts in an article (embedded below) that is circulating widely among intellectual property lawyers:

One major story line that was unreported in the aftermath of the preliminary injunction hearing was Koh’s statement regarding the validity of the iPad design patent. In short, and without parsing words, Koh stated that she thinks that the iPad design patent is invalid. When Samsung’s counsel was raising a prior art reference, specifically the ”1994 Knight-Ridder” tablet prototype, Koh interjected, ”I think that invalidates the ’889 . . .”

This is significant not only because it is a blow to Apple but because it reflects Samsung’s defense strategy. According to Carani, Samsung does not plan on persuading the court that it didn’t infringe the iPad design but is instead focusing on knocking down Apple’s patents altogether on the grounds they are obvious. In other words, even if Samsung did “slavishly copy” the look of the iPad, it doesn’t matter because Apple can’t have a patent right to that design.

A court filing unsealed on Tuesday shows that Samsung’s primary argument is indeed based on showing that the iPad design is obvious. According to Samsung:

In 1994, the publisher Knight-Ridder produced and distributed a video that showed such a device with many of the elements embodied in Apple’s later D’889 patent application, including an overall rectangular shape with four evenly rounded corners, a flat clear surface on the front of the device, a rim surrounding the front surface, a substantially flat back panel that rounds up near the edges to form the rim around the front surface, and a thin form factor. Apple failed to disclose this device to the PTO during the D’889 patent’s prosecution, even though Apple
knew of its existence directly from Dr. Fidler, with whom Apple worked.

The Knight-Ridder tablet can be seen in this video (executives at the former newspaper chain must be kicking themselves..)

To succeed at the preliminary injunction stage — which is where the case is now — Apple will have to show there is a likelihood it will ultimately succeed on the question of whether the iPad design is obvious when set beside the Knight-Ridder tablet and other existing designs. If Apple fails to do so, it could still win at the trial stage. At law, a patent is invalid if the invention it describes is not new or if it would be considered obvious at the time the patent was filed.

The Apple-Samsung litigation has been charging around the globe as Apple fights to preserve its current dominance in the tablet market. Yesterday, an Australian court lifted an earlier injunction on the sale of Galaxy products. (UPDATE: Reuters (NYSE: TRI) reported late Thursday that the Aussie ban has been reimposed until at least next week).

Apple v Samsung _Carani article_
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  1. There was no Knight Ridder tablet in 1994. It was a static mockup, on a piece of foamboard; the rest was simulated on a Macintosh screen. The video was merely conceptual, and if that counts, then Apple’s Knowledge Navigator video from the late ’80s trumps it.

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    1. Doesn’t matter–it’s the idea that counts. Besides, we should remember that Steve went to design a tablet based on what an MS employee said MS was doing with a tablet (most likely the courier) during dinner with Bill Gates. . . . yeah, it was all Steve’s idea ;) ;)

      The prior art existed and not only in the Knight-Rider tablet. One only has to look at PC tablets and see that over time as mobile hardware increased in power and allowed for slimmer form factors that the keyboard & hard drive would be lost to leave only the screen–after all most PC tablets are designed so the screen folds over the keyboard to look exactly like an ipad, 4×3 ratio and all.

      The fact that so many blogs went off on the which is the ipad questions proves how many blogs are backed by apple and/or apple fans spreading misinformation/pro-apple info. 

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    2. actual working tablet http://en.wikipedia.org/wiki/PenPoint_OS

      there were others before even Go bought penpoint…

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    3. not an Aplle fanbot Friday, December 2, 2011

      If that is true then the Apple Knowledge Navigator video is prior art and Apple didn’t disclose it during its patent application and therefore the patent is invalid.

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  2. Way to go media of turning things in Apples favor yet purposely ignoring this VITAL information. 

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  3. Just because one dreams up of a flying car, doesn’t mean they get a patent.
    The Knight Ridder people get credit for the form factor but it’s hardly an invention without an actual pathway of making it into reality. 

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    1. I’m sure the descendents of the Wright Brothers would love to hear that …..

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    2. If only that were true. IP patents don’t need a proof of concept, only an idea.

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    3. You do realize that tablets were made long before the ipad? And mobile hardware wasn’t able to do what a tablet like the ipad needed in order to be produced, right?

      sometimes the idea & design come before the technology is available to implement it, thus it’s only a matter of time = obvious–you know, like the digital music player (ipod) that was designed/invented by a UK guy that apple blatantly copied.

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    4. It’s not about invention, it’s about invalidating a form factor patent that was given illegally because the idea was stolen.

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    5. not an apple fanbot Friday, December 2, 2011

      Except that the patent is not for a manufacturing process but is effectively for the design therefore it (1) it shouldn’t have been granted because one shouldn’t get patents for aesthetic designs or (2) the Knight Ridder mockup is prior art. Either way there is no valid patent.

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  4. It doesn’t matter if Knight Ridder never made the tablet. What Apple are asserting here is a design patent, which only covers the physical design of a product. They’re supposed to protect distinctive designs, e.g. the shape of a Coca Cola bottle.

    So, if Knight Ridder are to be given credit for the form factor, Apple cannot hold a valid design patent on that same form factor. This is what the judge commented on, and what may well be Samsung’s saving grace.

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    1. amen!

      people often forget that many tech gadgets start out as sifi ideas. . . then someone thinks, I wonder if we can actually make that. then they set out to do so–they may invent many things along the way to make it a working device but that doesn’t give them the right to claim the design someone else came up with, even if it was for a demo, movie, etc. . .

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  5. I’ll buy a new iPad3, but I prefer the Galaxy Tab to be released in the US. I want to see competition here so that Apple doesn’t hold back the product upgrade. Competition is good for consumer. Bring it on.

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  6. The argument is whether the design (of the iPad) is obvious. Lets see, squarish? Check. Pretty obvious design convention for viewing ease and transport. Rounded corners? Check. Can’t have people dropping the thing on their foot and having the corners cause major injuries. Flat, clear screen? Check. Would be kind of silly to have another shape, and having an opaque viewing screen would make it pretty difficult to actually see anything on the screen. 

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  7. what they are talking about is the actual form factor and not the software or internals, so yes it does matter

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  8. if thats the case then stanley kubrick trumps them all with 2001 space odyssey where we see two astronauts using tablet devices that look like ipads

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  9. RadioFreeOmaha Friday, December 2, 2011

    We do know this much: Samsung did “slavishly copy” the look of the iPad. Want to own a slavish copy? You the slavish type? And how embarrassing is it for Samsung and its executives to be outed as nothing but slavish copiers? It’s always the corporate PC types that don’t have a clue.

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    1. Troll, look at Asus transformer prime and tell me that doesn’t look like an ipad. 
      You think you can design a 10″ tablet without it looking like rectangular screen?

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    2. It doesn’t take much of a memory to recall Samsung’s reaction, after iPad2 was introduced, that they would have to redesign their Galaxy to compete (match?) the Apple product.  I suppose this is the problem with every leader, that the pack of “Me, toos” are always snapping at their heels.  Hey, Samsung, show us something amazing.  Not just a bigger screen; how about a big idea?

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