Tastes like an iPhone —
ITC judge to use "Cheech and Chong" test in Apple v. Samsung case
"Does it look like it, feel like it, smell like it?" asks the judge.
Chris Foresman - Jun 1, 2012 3:05 pm UTC
An International Trade Commission judge plans to use what he called the "Cheech and Chong test" to determine if Samsung's products indeed copy Apple's designs for the iPhone and iPad. The remarks came at the beginning of oral arguments on Thursday, which are expected to continue until June 6, as noted by Bloomberg.
"Does it look like it, feel like it, smell like it?" Judge Thomas Pender asked at the beginning of the trial, referencing a classic Cheech and Chong sketch wherein the duo try to identify what appears to be feces on the ground by feeling it, smelling it, and finally tasting it.
"Good thing we didn't step in it!" the punch line goes.
Pender may have been suggesting that if Samsung's devices look, feel, and smell like an iPhone or iPad, they probably are copies, as Apple alleges. The company is asserting six different patents against Samsung in its ITC complaint, including design patents that cover the shape and look of its mobile devices.
"Not content to copy the overall design and interface, Samsung has copied the smallest detail of the iPhone," Apple counsel Harold McElhinny said in opening arguments on Thursday. "Samsung copied our original and iconic design."
Samsung countered that it is also known for its design and innovation. "Samsung has been in this industry, building and innovating to the point where Apple could enter the market," Samsung lawyer Charles Verhoeven said during his opening remarks. "We are anything but an also-ran trying to copy Apple's technology."
Pender is expected to announce his conclusions on October 5. Samsung's separate ITC case, largely concerning wireless 3G patents, will begin hearings next week. The decision in that case may come as early as September 14.
Meanwhile, a parallel federal lawsuit over these same issues is scheduled to begin July 30 in a California district court. Neither company was willing to budge on its position in the dispute in court-ordered mediation talks that took place last week.
Chris Foresman Chris is an Associate Writer at Ars Technica, where he has spent the last five years writing about Apple, smartphones, digital photography, and patent litigation, among other topics.
Email chris.foresman@arstechnica.com // Twitter @foresmac
kontos Wise, Aged Ars Veteran
New Internet rule: Don't reference a comedy sketch without posting a link to a sample of it!
rick420buzz Ars Scholae Palatinae et Subscriptor
A simple link to
http://www.youtube.com/watch?v=eY7ZX6ngOSs
should've been included. Cheborneck
Of course, the real test is, what did Samsung's phones look like before the iPhone came out, and what did they look like afterwards? If the trend was anything like Google's Android reference device (reference design had to be Cheech and Chong's giant doobie, stuffed with old socks and "stuff") before the iPhone, Samsung is in deep "chit" man.
amblin Seniorius Lurkius
As long as they are also hitting the bong, it will be fine.
ewelch wrote:
Stop perpetuating myths.
http://www.osnews.com/story/25264/Did_A ... he_iPhone_
Quote for the lazy:
To answer the question posed in the headline: yes, a prototype Android device looked like a BlackBerry phone. However, at least one other prototype Android device from the same time frame did not (and it wouldn't surprise me if Google was testing Android on several more prototypes with different form factors). On top of that, the SDK from that exact same time frame also included support for large touch screens. In other words, the argument is invalid.
Last edited by albeec13 on Fri Jun 01, 2012 10:33 am
fitten Ars Legatus Legionis et Subscriptor
I guess this will perpetuate "it's rectangular".
SirByte Smack-Fu Master, in training
For the iPad case, I'd like to throw in my HP TouchPad; when switched off, to me it looks a lot more like the iPad than the Galaxy.
Daibidh Seniorius Lurkius
While I'm not one to really place too much importance on the whole "look and feel" complaint... just look at the automotive industry... I'm not sure what myth Albeec13 is referring to.
euclidean Ars Centurion
What about prior art such as the LG Prada Phone (which I don't know why LG doesn't/didn't sue the chit out of Apple over that device).
I thought that things like that were more important than '70's comedy duo references in a court of law. Then again what do I know...
http://www.gsmarena.com/lg_ke850_prada-1828.php
deurges Smack-Fu Master, in training
Of course, the real test is, what did Samsung's phones look like before the iPhone came out, and what did they look like afterwards?
I don't think it matters. Everytime something new and better comes out, the competition will take it as a cue to change what they are doing, most of the time following the game changing product, and almost never by coming out with another game changer. If this was not the case, the product and technology evolution we are used to wouldn't exist, and we would only hope that one exceedingly superior product always replaced the previous one.
Only somewhat on topic but this one always bugs me. They had a couple of reference designs based on common phone hardware at the time. The most commonly mentioned one is the Treo style handset but they also had a touch-only slab style device as well. The point was to show that their OS would run on the various types of devices on the market.
As a software company (like Microsoft), the point has always been optimizing it to run on whatever hardware the market demands. Apple totally popularized the slab style device and like any other market, once the demand exists, lots of companies will put out their take on it. In my mind, that isn't copying or stealing. That's how products work. Ford invented the first pickup truck but lots of companies make vehicles that are obviously the same style. By being first to market and best to implement a new style of product, companies gain a market advantage. Trying to outdo each other is the way to compete, not this constant legal back and forth attempting to call dibs on whole styles of products.
Last edited by neodorian on Fri Jun 01, 2012 10:46 am
eyhk Wise, Aged Ars Veteran
* Edited as links were messed up
Here is Samsung's US lineup in June of 2003, four years before the iPhone:
http://web.archive.org/web/200306022117 ... ew_all.asp
Here is Samsung's US lineup in July of 2007, one month after the release of the iPhone.
Here is Samsung's US lineup today, five years after the iPhone was first introduced.
http://www.samsung.com/us/mobile/cell-p ... l-products
Can't you just feel the innovative juices flowing?
Last edited by eyhk on Fri Jun 01, 2012 10:48 am
Daibidh wrote:
The one that, prior to the iPhone, no phones (or devices in general) were flat, generally rectangular with rounded corners, and with a screen that occupied most of the front face.
Molokaimule Seniorius Lurkius
Ok maybe it is me, but i seem to think that if anything all modern smartphone designs really have the origin in the olde skool Palm Pilot/Treo.
Touchscreen - check(sort of)
grid of icons - check
row of buttons on the bottom - check
3.5" X 5" or so dimentions - check
not pointy corners - check (did not say rounded rectangle)
calendar - check
email - check
contacts - check
software keyboard - check
synch to desktop - check
battery powered -check
at one point they even made on with a barcode scanner built in.
Not getting a whole lotta "innovation" vibe from either Apple or Samsung on this one.
*note I own a Galaxy S1.
*My boss has an iphone 4S.
ya know what. if we put them on a table and close our eyes and try to tell which one is which, it is pretty simple.
As far as we can tell, they don't really smell like anything in particular.
eyhk wrote:
So what you're saying is they were making cell phones/smart phones for several years before Apple made their first one?
Tech is a constant evolution. If it weren't for Motorola, Palm, HTC, Samsung, and a ton of others making smart phones (and cell phones in general) for years, Apple wouldn't have come out with the device they did. Likewise, Apple brought a lot to the table and it's influenced the market and the sorts of thngs people demand.
Doh! My apologies. The joys of reading on a phone while commuting.
Great ost Albeec... when I read it IN FULL! LoL
Unfortunately the test did not involved testing the lawyers to determine the level of marijuana use.
a_v_s Ars Tribunus Militum
And here's what the Samsung Digital Photo Frame looked like in 2006, much before the iPhone or iPad came out... (Remember, trade dress explicitely excludes functionality, so the fact that this is a photoframe is irrelevant)
Of course this frame is much fatter than a tablet, but that is irrelevant too. Samsung is allowed to have a uniform look to match devices it created already.
If you are going to be nitpicky about stuff like this, than Apple should be prohibited from making a 4" iPhone, and should be prohibited from removing the physical home button, and should be reprimanded for copying the notification center. It's a two way street.
Sailirish_7 Ars Centurion
I find it hard to call the slab style of the iphone "innovative" I had a windows phone running 3.5 when the iphone released. It looked just like the iphone only smaller and a bit thicker (so the components fit)
Last edited by foresmac108 on Fri Jun 01, 2012 11:10 am
fxds Ars Tribunus Militum
Am I the only one who thinks it's great that an ITC judge has the common sense (and balls) to actually call it the "Cheech and Chong test"? I don't know anything about Judge Pender or whether I would agree with any of his rulings but I think it's fantastic that he apparently lives at least partially in the real world, as opposed to the bubble where so many high-level politicians and government officials seem to live.
randomletters1 Ars Centurion
So very tired of this case, and all the standard arguments and link/image posts that accompany it.
Parallel invention is a real thing, and should be acknowledged in this and many other cases.
Brandon B Ars Scholae Palatinae
So essentially the judge is saying the iPhone looks like a dog turd, and if the Samsung Galaxy also looks like a dog turd, be glad you don't step in either one?
Seems harsh.
SirByte wrote:
It certainly wouldn't qualify as "prior art," sine the TouchPad came out well after the iPad. An Apple victory over Samsung would certainly give it reason to pursue a similar suit with HP, though.
Heh, Samsung has always followed the fashions. Note that at the time of the "flip phone craze", the Motorola Star-tac was the figurehead. But i do not think Motorola ever used Samsung about likeness...
Anyways, notice the sph-i700, sph-i330 and sph-i300. Shave the antenna off, round the corners, and what have you?
samoanbiscuit Smack-Fu Master, in training
The myth that Android is a straight up hacky clone of iOS.
Korpo Ars Praefectus
http://web.archive.org/web/200307240917 ... allery.jsp
Anticrawl Ars Tribunus Militum
This is all you need to know.
Stratus Fear Wise, Aged Ars Veteran
Anticrawl wrote:
Wow. First of all, the ROKR doesn't even make sense in this, even for a troll. It was essentially a restyled, older model Moto (E398) with a J2ME version of iTunes tacked on. And then when you take into account that the iPhone was in development long before any news broke about that Samsung phone, well...
Not to mention that, practically, the similarities to that phone end after we state that they are both in fact cellular phones and have touchscreens. Touchscreens weren't something new. Apple's execution of them, though, was very novel for the time.
I can only hope you were posting that photo to be funny. I can't imagine anyone taking it seriously.
Stratus Fear wrote:
Doesn't change the fact that the F700 broke news before the first images of the iPhone were released. Samsung clearly beat them to the market with the "style" that has been consistent along ALL Samsung handheld devices for 6 years. The tray icons are the same, the icon grid is similar to TouchWiz, etc.
Yes it is meant to be "funny", that and the f700 doesn't look that far off from a sg1 or 2
No worries. You probably read my post before I edited it and added the link.
randomletters1 wrote:
I was hoping to kill the imminent photo flame-war before it started with my first post, but clearly it didn't work.
stompsfrogs Seniorius Lurkius
I don't remember this happening when all phones got flippy, who fell down on that design patent?
Seriously Apple, it's a rectangle. You're breaking my heart, I put Linux on my macbook :'(
Thucydides411 Ars Scholae Palatinae
Thanks for pointing out that technology develops. With the development of capacitive touchscreens and low-power ARM processors, it's no wonder touchscreens rule the market today.
It never does, but I appreciate the effort.
Still waiting for the "I had a chalkboard as a kid that was a rectangle with rounded corners" post.
I'll never get over that being patentable. TVs and monitors had rectangular screens with rounded corners for years before iPad ever came out, not to mention most smartphones. The whole thing is a joke.
When it broke news doesn't really matter. There's no way the development of the iPhone changed it's path within four months. Calling the iPhone a copy of the F700 was silly, is silly, and always will be silly.
The F700 and TouchWiz looking the same? Maybe in the way that Windows Mobile of that era and other mobile OSes looked the same, which is to say, outside of cherry-picked paradigms like a grid of icons, they don't look the same at all as overall products. The icons don't look the same; some might have a similar common representation of an idea (for example, musical notes for music is pretty standard), but on the TouchWiz devices, it is pretty clear that the icons are pretty different outside of common representation of an idea (color vs no color, for one). I don't believe the argument has ever been about JUST the grid of icons, or JUST the shape of the phone. As a whole, the iPhone and the Galaxy S are far more similar to each other than the F700 is to either of them.
People would do better to hold up Android as "not a copy" of iOS than to harp over Samsung, because it's obvious in a number of ways that, while Google attempted to build off of what was big at the time (touchscreen handheld OS), they attempted to make the OS unique in key ways. Android isn't really a copy at all. Saying the iPhone was engineered off a device that was leaked to the media four months before a public revealing and is a copy as a defense of this suit, when they don't look much alike at all, is dumb. Saying that the F700 looks exactly like the current TouchWiz on anything other than a high level is dumb. As a package, they are nothing alike, and it couldn't be more clear. As a package, the iPhone and the Galaxy S are very alike, much moreso than any competitors. That is the contention and always has been.
The pictures, comparisons to photo frames, statements about JUST a rectangle and JUST a grid of icons are a pretty blatant display of "not understanding the larger picture," let alone any of the established law behind the situation. I don't know whether Apple really should win a lawsuit against Samsung as they clearly aren't KIRFs and that muddies the waters a bit, but to claim said phones aren't strikingly similar, as a package, is hilarious. The evidence of such has been out there for quite some time now.
The reason most other manufacturers haven't been sued on grounds of trade dress and design patent like Samsung has is because none of them wanted to touch that shit with a ten foot pole, and acted accordingly. And I don't blame them. You blow your brand image when you follow the leader too closely anyway. It's smarter to make your products stand out more. Samsung's products under contention really did not.
outside of cherry-picked paradigms like a grid of icons, they don't look the same at all as overall products. The icons don't look the same; some might have a similar common representation of an idea (for example, musical notes for music is pretty standard), but on the TouchWiz devices, it is pretty clear that the icons are pretty different outside of common representation of an idea (color vs no color, for one). I don't believe the argument has ever been about JUST the grid of icons, or JUST the shape of the phone. As a whole, the iPhone and the Galaxy S are far more similar to each other
The whole comparison between Samsung and Apple is cherry-picked... The photos of the Galaxy Tab were photoshopped to match the aspect-ratio of the iPad...
And the phone... They are showing you the app-drawer and comparing it to the main dashboard on iOS. The screen everyone shows on the Samsung Galaxy S2, is not the default screen... The phone comes with a bunch of Touch-Wiz widgets on the main screen.
I have many phones in our lab, both Samsung and Apple... Only an idiot will confuse the Galaxy S2 and the iPhone 4, and a Galaxy S and an iPhone 3GS. Particularly when you hold them in your hand.
a_v_s wrote:
Funny you mention cherry-picking as a response. These are the same cherry-picked arguments Samsung supporters always use.
I don't judge whether anyone is an idiot or not, but as far as I know, the law doesn't need them to be exactly the same, only deceptively similar. I thought it was rather telling that Samsung's lawyers couldn't tell at a ten foot distance, and presumably they're familiar with the product. I'd have to imagine Apple's problem with everything is the "well it's just like an iPhone!" thing at the point of purchase, except it isn't an iPhone. Arguing about whether someone could tell them apart up close is a red herring--it's like those that argue "well you have to be an idiot if you can't tell Apple and Samsung logos apart!" Except for the fact that was never the issue. Pepsi could use bottle design almost or exactly the same as Coca-Cola's, except with a Pepsi logo on it, and people could tell them apart in their hand, obviously. But that you can tell them apart by logo isn't relevant in the first place.
Wait, are you calling Samesung's lawyers idiots?