The former Apple Inc. graphics designer who created the smiling computer icon for the original Macintosh testified that the application screen on Samsung Electronics Co. (005930) phones is “substantially similar” to the iPhone design patented by Apple.
Susan Kare, who began her career at Apple in 1982 as a screen graphics and digital font designer, was called yesterday as witness by the company in its multibillion-dollar patent trial against Samsung in federal court in San Jose, California.
Kare told the jury the phones are so similar that she picked one up while visiting the office of Apple’s lawyers and mistook a Samsung phone for an iPhone.
Apple and Samsung are the world’s largest makers of the high-end handheld devices that blend the functionality of a phone and a computer. The trial is the first before a U.S. jury in a battle being waged on four continents for dominance in a smartphone market valued by Bloomberg Industries at $219.1 billion. Each company is trying to persuade jurors at the trial that its rival infringed patents covering designs and technology.
Apple is using Kare’s testimony to advance its claims that Samsung phones infringe the software design of the iPhone. The company started making that argument last week with witness Scott Forstall, the company’s senior vice president in charge of iPhone and iPad software, and continued yesterday with testimony from Peter Bressler, a paid expert witness and industrial designer.
Kare, in a June court filing, said Apple asked her to testify about “visual appearances of design” depicted in an Apple patent to support the claims, or elements, of the company’s intellectual property.
Yesterday, when Kare was shown at least 10 Samsung phones in court, she said the application screens on all of them are “substantially similar overall” to that described in Apple’s patent.
In addition to patent infringement, Apple contends that Samsung’s copying of the look of the iPhone and iPad has diluted the values of its iconic brands. To prove infringement of the trademarked look, Apple must prove that consumers are confused as to which company makes the phone or tablet computer.
Kare is at least the second Apple witness to testify about customer confusion. Yesterday, Bressler told the jury about data in a report showing that the most common reason some Best Buy Co. customers return Samsung’s Galaxy Tab 10.1 tablet computer is because they thought they had bought the iPad 2.
During cross-examination, Samsung’s attorney, Charles K. Verhoeven, showed Kare a Samsung phone and asked her to walk him through the steps required to arrive at the application screen she was asked to analyze. When he turned it on, “Samsung” illuminated. After it was electronically unlocked, Verhoeven demonstrated, through Kare, that a customer had to navigate the phone’s home screen to get to the application screen.
The case is Apple Inc. (AAPL) v. Samsung Electronics Co. Ltd., 11-cv-01846, U.S. District Court, Northern District of California (San Jose).
Brocade Says It Wins $112 Million Verdict Against A10 Networks
Brocade Communications Systems Inc. (BRCD) said in a statement it won a $112 million verdict in a patent- and copyright-infringement trial in federal court in San Jose, California, against A10 Networks Inc. (ATEN)
Brocade sued A10 in 2010, claiming patent infringement, trade secret misappropriation, breach of contract, among other claims. The claims covered all of A10’s AX Series load balancing server products, according to the San Jose-based Brocade’s statement.
A10 said in a statement it will seek to have the verdict set aside.
“A10 Networks is and always has been committed to innovation and providing the application networking market with cutting edge technologies that deliver the industry’s best performance, flexibility and value to customers,” Lee Chen, the company’s chief executive officer, said in the statement. “We will take the appropriate legal actions, and continue to stand by our position that we do not infringe any of Brocade’s intellectual property.”
Brocade General Counsel Tyler Wall said in his company’s statement that while patent litigation “is a last resort,” in this particular case “the jury plainly felt it was warranted.”
The case is Brocade Communications Systems Inc. v. A10 Networks Inc., 10-cv-03428, U.S. District Court, Northern District of California (San Jose).
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Rodovid Bank’s Challenge to ‘Medoff’ Vodka Trademark Continues
Rodovid Bank, a commercial bank based in Kiev, has challenged the ownership of the Medoff trademark for vodka, saying it was used as collateral in a transaction involving the bank, the Kiev Post reported.
The Domani Group, under the control of British financier Neil Smith, acquired the mark, in May 2011 from the Soyuz-Victan Group Ltd., which has asked the Kiev Economic Court to cancel the hold the bank has, the newspaper reported.
In December 2011 the court said the bank didn’t have any collateral rights, and that ruling was upheld in March by that same court, according to the Post.
Smith said in a statement that the court on June 21 “for unclear reasons” again permitted the bank’s hold on the mark, and a future hearing will be held in the dispute, the Post reported.
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Yuengling Accused of Infringing ‘Oktoberfest’ Beer Label Design
Yuengling Beer Co., a Pennsylvania brewery established in 1829, was sued for copyright infringement by a New Jersey graphic artist.
According to the complaint filed July 30 in federal court in Harrisburg, Pennsylvania, Adam J. D’Addario created a series of possible labels for an “Oktoberfest” line of beer in October 2010. The designs were created in response to a request from the brewery, D’Addario said in his complaint.
He claims that he was never paid for his work, and that the brewery discontinued its relationship with him after he submitted his designs. Because he wasn’t paid, D’Addario said he didn’t license or assign them to the brewery.
The artist claims that a line of beer Yuengling will release in September uses packaging and labels “copied and derived from” the proposals he submitted to the brewery. He registered his designs with the U.S. Copyright Office, he said in the complaint.
He also accuses the brewery of using his designs on its 2011 Oktoberfest releases. He says that despite his “repeated entreaties” he hasn’t been compensated for his work, and claims the design will be used on about $14 million worth of beer this year. He asked the court to bar the use of his work without payment of $80,000, in addition to awards of money damages, attorney fees and litigation costs.
The brewery didn’t respond immediately to an e-mailed request for comment.
The case is Adam J. D’Addario v. D.G. Yuengling & Sons Inc., 3:12-cv-01465-UN4, U.S. District Court, Middle District of Pennsylvania (Harrisburg).
Google, Oracle Must Reveal Payments to Bloggers, Judge Rules
Google Inc. (GOOG), Oracle Corp. (ORCL) and their attorneys must disclose any payments made to authors, journalists and bloggers who have reported or published comments on Oracle’s copyright infringement case over Android software, a judge ruled.
U.S. District Judge William Alsup ordered both sides to file a statement by Aug. 17 identifying any writers who received money during the lawsuit, saying he is “concerned” that the companies or their lawyers retained or paid Internet of print authors who write about the case, according to a filing yesterday in federal court in San Francisco.
The disclosure is needed to make clear whether any of those writings “are possibly influenced by financial relationships to the parties or counsel,” Alsup said in the filing.
A jury found May 7 that Google infringed Oracle’s copyrights when it developed Android software for mobile devices yet deadlocked on whether it was “fair use,” denying Oracle the ability to seek as much as $1 billion in damages from the search engine company. On May 23 the jury found that Google didn’t infringe two Oracle patents.
Deborah Hellinger, an Oracle spokeswoman, declined to comment on the judge’s order. Jim Prosser, a Google spokesman, didn’t immediately respond to an e-mail seeking comment.
The case is Oracle v. Google, 10-3561, U.S. District Court, Northern District of California (San Francisco).
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Trade Secrets/Industrial Espionage
Loparex Ordered to Pay Fees, Costs in Trade Secrets Case
Loparex LLC, a maker of release liners used in graphic arts and for labels and tape, and its former lead litigation counsel, were hit with an attorney fee order of $475,000 in an unsuccessful trade secrets case.
The suit, which was originally filed in Illinois state court, then moved to federal court in that state, ultimately ended up in federal court in Indianapolis. Loparex, based in Willowbrook, Illinois, sued one of its former employees and MPI Release LLC of Winchester, Massachusetts, for trade secret misappropriation.
According to court papers, the Illinois federal court told Loparex it failed to list with sufficient specificity the trade secrets it claimed were stolen. Loparex than dismissed the case, and refiled it in Indiana. The Indiana court told Loparex its description of the purloined trade secrets was too general.
The court granted the defendants’ request to dismiss the case. In its July 27 order, the court noted that the case, which should have been a “straightforward trade secrets case,” instead resulted in “an abnormally high number of discovery disputes, not to mention multiple motions for sanctions.”
Counsel for both sides were warned, according to the fee order, that while they were entitled to advocate zealously for their clients, “zealous advocacy does not equate with a total-war mentality toward litigation.” That admonition “fell on deaf ears,” the court said.
The court also criticized Loparex’s lead counsel for failing to “rein his client in or otherwise moderate the client’s litigation position.” Loparex never adequately pleaded the existence of the trade secrets that it claimed were stolen, according to the court order.
In addition to attorney fees, the court awarded the defendants litigation costs of $29,000 and denied Loparex’s claims of court costs, saying that when “a litigant has engaged in bad-faith litigation, costs can be denied.”
The fee order makes specific mention of Loparex’s former lead counsel, Charles W. Pautsch of Chicago’s Arnstein & Lehr LLP. Pautsch withdrew from the case May 11, according to data compiled by Bloomberg. Pautsch said in an e-mail that it would be inappropriate for him to comment “because the matter is still in litigation.”
The case is Loparex LLC v. MPI Release LLC, 1:09-cv-01411-JMS-TAB, U.S. District Court, Southern District of Indiana (Indianapolis).
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