Apple Inc. v. Samsung Electronics Co. Ltd. et al

Filing 1021

Declaration Of Susan Kare In Support Of Apples Opposition To Samsungs Motion For Summary Judgment filed byApple Inc.. (Attachments: #1 Exhibit 1, #2 Exhibit 2)(Jacobs, Michael) (Filed on 6/1/2012)

Exhibit 1

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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APPLE INC., a California corporation,

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Plaintiff,

Case No.

11-cv-01846-LHK

EXPERT REPORT OF SUSAN
KARE

v.
SAMSUNG ELECTRONICS CO., LTD., A
Korean business entity; SAMSUNG
ELECTRONICS AMERICA, INC., a New York
corporation; SAMSUNG
TELECOMMUNICATIONS AMERICA, LLC, a
Delaware limited liability company,
Defendants.

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**CONFIDENTIAL – CONTAINS MATERIAL DESIGNATED AS HIGHLY
CONFIDENTIAL – ATTORNEYS’ EYES ONLY PURSUANT TO A PROTECTIVE
ORDER**

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EXPERT REPORT OF SUSAN KARE
Case No. 11 cv-01846-LHK

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EXPERT REPORT OF SUSAN KARE

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I.

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INTRODUCTION
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I, Susan Kare, submit this Expert Report in connection with certain patent, trade

dress, and trademark claims being asserted by Apple Inc. (“Apple”) in the above-captioned case.

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I have been informed that Apple has alleged that Defendants Samsung Electronics Co. Ltd.,

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Samsung Electronics America, Inc., and Samsung Telecommunications America, LLC

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(collectively, “Samsung”) have infringed Apple’s patents, trade dress, and trademarks.

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II.

QUALIFICATIONS
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I am currently an icon designer and user interface graphic designer for my design

studio, Susan Kare Design, which provides icon, user interface graphics, branding and corporate

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identity design services.
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3.

I received a Bachelor of Arts degree in fine arts and English from Mount Holyoke

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College in 1975. I graduated Summa Cum Laude and was elected to membership in the Phi Beta

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Kappa Society.

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4.

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After receiving my Bachelor of Arts degree, I studied graphic design as part of my

fine arts curriculum in graduate school at New York University, and I received my Master of Arts
degree in 1976. I was granted a Ph.D. in fine arts in 1978 from New York University. My liberal

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arts background and my experience doing Ph.D.-level research contribute to my ability to develop
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logical concepts for the groups of icons and other images that I have designed since then.
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After receiving my Masters and Ph.D. degrees, I received a Rockefeller

Fellowship to work at the Fine Arts Museums of San Francisco.
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Overall, I have over 28 years of experience in the field of icon design and user

interface graphic design. (A copy of my curriculum vitae is attached as Exhibit 1.) From 1982

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EXPERT REPORT OF SUSAN KARE
Case No. 11 cv-01846-LHK

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through 1985, I worked for Apple Computer, Inc., first as a graphic artist in the Macintosh

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software group, and then as a creative director. While at Apple, I created many of the graphical

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elements of the original Macintosh computer’s user interface, including many of its icons and

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typefaces. From 1986 through 1988, I was the creative director at NeXT, Inc., where I managed
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the development of that company’s graphic identity and other marketing materials.
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Since leaving NeXT in 1988, I have worked as an independent user interface

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graphic designer. My work in that capacity has included designing the screen appearance for

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Microsoft Windows 3.0, including numerous icons and other graphic elements such as buttons

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and scroll bars. Subsequently I designed icons for a variety of clients, including images for over
100 functions in AutoDesk’s AutoCAD and a symbol set for IBM’s OS/2 operating system. In

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the early 90s, I was an employee at General Magic, which developed a handheld communicator,

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and I provided the graphics for the device’s highly visual user interface. I co-founded Glam

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Media in 2003 and worked as its creative director, along with providing website graphics and

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design for its fashion-oriented site, through 2008. Glam Media continues to focus on premium

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digital brand advertising with its family of sites and network of small and midsize online

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publishers. I am no longer an employee of Glam Media, but I am occasionally consulted as an

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informal advisor.
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8.

Since I started working on icon design at Apple Computer in 1982, I have

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designed thousands of icons for hundreds of clients, including Fortune 500 companies as well as

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startup companies. I have created icons for a broad range of software programs and products,

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such as AutoCad (Autodesk), Studio 8 (Electronic Arts), watches (Swatch and Fossil), and over

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500 virtual gifts for Facebook.

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I have also worked as a digital font designer, starting in 1983. I designed most of

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the bitmap fonts that shipped with the original Macintosh in 1984, including Chicago, New York,
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EXPERT REPORT OF SUSAN KARE
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Geneva, Monaco, and Cairo. Subsequently, I designed other bitmap fonts for clients including

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Fossil and Danger Research, and a number that were sold online by Atomic Media. My

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experience in font design includes fonts for user interfaces that require a combination of graphic

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elements and type.
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In 2001, I was one of six individuals to receive the Chrysler Design Award, which

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celebrates “the achievements of individuals who have consistently championed seminal works of

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architecture and design, and significantly influenced modern American culture.”

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In 2003, I was appointed by Secretary of the Treasury John W. Snow to the

Citizens Coinage Advisory Committee (“CCAC”). I was recommended to the Secretary by
House Minority Leader Nancy Pelosi, in accordance with Public Law 108-15, to fill one of four

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CCAC positions recommended by Congressional leadership.
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My expertise in icon design and user interface graphics is the result of various

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skills that I have developed and practiced over the years. For example, effective icon design

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requires me to understand the characteristics of the user and the purpose of the icons within a

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particular user interface. Effective icon design depends on successful visual communication, so

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that a user understands and remembers the intended association between an icon’s image and its

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meaning. Icons can be used to represent a variety of user interface elements: applications, tools,
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files, settings, etc. Also, because icons are part of a graphical interface, icon design requires

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fundamental graphic design skills and an understanding of onscreen presentation and

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arrangement, which provide the context within which icons exist, and the ability to make

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aesthetic judgments. Finally, it is also necessary to know how to present type and symbols so that

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the user can take in information at a glance.

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I have spent most of my career as a designer developing and evaluating user

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interface graphics for average users. Through my practical experience, I have gained an
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EXPERT REPORT OF SUSAN KARE
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understanding of how icons and user interface graphics are interpreted by average users. This

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understanding enhances my ability to identify graphic elements that are meaningful and

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memorable for the average user.

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I have not testified as an expert or been retained as an expert in any previous

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lawsuit.
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I have been retained by Apple in this matter and have been asked to provide my

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opinions with respect to the visual appearance of the designs depicted in U.S. Design Patent No.

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627,790 (the “D’790 patent”), U.S. Design Patent No. D604,305 (the “D’305 patent”), and U.S.

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Design Patent No. D617,334 (the “D’334 patent”) (collectively, the “Design Patents”), as well as

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the visual appearance of the user interface graphics of the iPhone1, iPhone 3G, iPhone 3GS, and

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iPhone 4 (collectively, the “iPhone Devices”).
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I have been asked to provide my opinion with respect to the availability of designs

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for user interface graphics that constitute alternatives to the designs depicted in the Design

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Patents and the designs utilized in the iPhone Devices.

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I have been asked to provide my opinion with respect to the visual appearance of

the designs depicted in the Design Patents compared with the visual appearance of the

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applications screens of the following Samsung phones: Captivate, Continuum, Droid Charge,
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Epic 4G, Fascinate, Galaxy S 4G, Galaxy S i9000, Gem, Indulge, Infuse 4G, Mesmerize, Galaxy

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S Showcase (i500), and Vibrant (collectively, the “Samsung Phones”). I have also been asked to

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provide my opinion with respect to the visual appearance of the user interface graphics of the

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iPhone Devices compared to the visual appearance of the “applications screens” of the Samsung

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Phones.

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I have been asked to provide my opinion with respect to the design of icons

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The term “iPhone,” as used in this report, refers only to the original iPhone, not to the line of iPhone variants
generally.
EXPERT REPORT OF SUSAN KARE
Case No. 11 cv-01846-LHK

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appearing on the Samsung Phones compared with the design of icons appearing in the Design

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Patents, the iPhone Devices, U.S. Trademark Reg. No. 3,886,196, U.S. Trademark Reg. No.

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3,886,200, U.S. Trademark Reg. No. 3,886,197, U.S. Trademark Reg. No. 2,935,038, and U.S.

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Trademark Application Serial No. 85/041,463.
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I expect to testify at trial concerning these opinions as well as my bases for them,

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such as my knowledge, experience, and expertise concerning the creative process of icon design.

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I also expect to rebut any opinions I disagree with that are provided by Samsung’s expert(s) with

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respect to the subject matter of this report.

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20.

I am being compensated for my work in connection with this matter at a rate of

$550 per hour. I am being separately reimbursed for all out-of-pocket expenses. No part of my

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compensation is dependent upon the outcome of this litigation or the opinions that I express.
III.

MATERIALS CONSIDERED
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In forming the opinions set forth in this report, I considered and relied upon my

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education, background, and experience. I also have reviewed the Design Patents, U.S. Trademark

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Reg. No. 3,886,196, U.S. Trademark Reg. No. 3,886,200, U.S. Trademark Reg. No. 3,886,197,

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U.S. Trademark Reg. No. 2,935,038, and U.S. Trademark Application Serial No. 85/041,463, as

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well as the other documents or reference materials cited or listed in this report. In addition, I have
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evaluated photographs and physical samples of the Samsung Phones and the iPhone Devices.
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In forming my opinions, I have also reviewed and considered the materials listed

in Exhibit 2 of this report.
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I reserve the right to rely upon any additional information or materials that may be

provided to me or that are relied upon by any of Samsung’s experts or witnesses, if called to
testify or to give additional opinions regarding this matter.

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24.

I have been informed that expert discovery in this lawsuit is still ongoing, and I

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EXPERT REPORT OF SUSAN KARE
Case No. 11 cv-01846-LHK

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will consider additional facts and material produced through discovery to determine whether such

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additional material has an impact on my opinions. I may amend or supplement this report as

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necessary based on such additional information.

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IV.

FUNDAMENTALS OF ICON DESIGN

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The icon design process is one of creative problem-solving and involves

conceptual and visual components. It often involves the marriage of metaphor and aesthetics.
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An icon is a visual representation that creates a shortcut for a user in a device

interface. A group of icons can represent a set of ideas with images that are differentiated from
each other so they can be recognized at a glance.
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Sometimes an icon is a graphical illustration of a user interface element that

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functions as something in particular (e.g., a clock). Icons may instead be designed as symbols,

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either because they represent abstract concepts or verbs (e.g., “copy” or “undo”) or portray a

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generic concrete noun (e.g., document).

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The first step in icon design is to identify the concept (e.g., a specific category or

function) for which an icon is required and consider what visual metaphors might be used to
represent that concept or to make it easy to remember. This is the “design problem” that the

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designer must solve: How can a particular concept or function be represented by an image?
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Sometimes, the design problem might extend to developing a set of related icons.
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Icon design may also need to take into account any marketing or design

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considerations typically found in a creative brief. These considerations might include the nature

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of the product itself; the target audience; the desired appearance for the user interface graphics;

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and the competitive landscape (e.g., the goal of being differentiated from competitors in some

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way). All of these factors can influence the development of an icon beyond the need for the clear

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and memorable communication of an idea.
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30.

Because icon design is not an exact science, there is always a great range of visual

alternatives for an icon image even when a designer opts for a conventional approach, such as
using images associated with traditional postal service mail (e.g., an envelope, stamp, or mail

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slot) to represent an electronic mail application. An icon of an envelope, for example, still
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requires many aesthetic choices—including those involving color, style, viewpoint, rendering

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techniques, etc.—as it is designed. The envelope icon could be a photograph, an illustration, or a

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simple diagram; either side of the envelope can be shown; details such as a stamp and/or print can

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be indicated; and the envelope can be rotated or shown in perspective. An icon can also appear to

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be a flat, two-dimensional image or have the appearance of a three-dimensional image with depth.

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Beyond the appearance of an individual icon, the designer also takes into consideration how the

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image will appear along with other icons and graphic elements on a screen.
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Various factors influence the development of an icon’s final visual appearance.

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Aesthetics are a prime consideration, but issues mandated by a mobile phone environment might

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include limited screen real estate, touch screen “hit” area space requirements, the relationship of

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the industrial design to the user interface, and creative issues or goals provided by a client’s

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marketing organization. Moreover, the designer must be aware of any technical requirements or

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constraints, such as pixel dimensions, bit depth, specific color palette, or touch screen issues. An
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additional consideration might be optimizing for a user’s perception of ease of use, which may
affect the desired number and density of icons within a space.
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Various alternative design approaches are available for the overall layout of a

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group of icons, such as presenting icon images as “badges” or “buttons” with a uniform

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background shape (e.g., a circle or rounded rectangle); presenting icons with border shapes that

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are irregular regions (different border shapes than a single, fixed border shape); or presenting

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icons within a visible grid or other delineated framework. Color palette might be determined by
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branding considerations or used to indicate categories of applications or features. Overall visual

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style (e.g., a two-dimensional or three-dimensional look, hand drawn effect, primary colors, etc.)

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might be driven by marketing issues such as target audience or price point. Icon design is

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typically an iterative process, with design alternatives presented and a final icon set chosen in
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tandem with a client decision maker.
V.

OPINIONS REGARDING SIMILARITIES BETWEEN APPLE AND SAMSUNG
ICONS AND USER INTERFACE GRAPHICS

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A.

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Characteristics of Apple Icons and User Interface Graphics
1. The Design Patents

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Figure 1
D’790 Patent

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33.

The D’790 depicts an overall appearance for the layout and shape of icons in a

graphical user interface for a display screen. (See Figure 1, above.) A 4 x 3 array (4 columns, 3

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EXPERT REPORT OF SUSAN KARE
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rows) of rounded rectangular2 shapes, which appear to be squares with rounded corners, is shown

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in the top portion of a display screen.3 (APLNDC00032009-012.) A separate row of rounded

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rectangular shapes is shown along the bottom of the display screen. In both the 4 x 3 array and

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the row along the bottom of the display screen, the shapes are evenly spaced horizontally. Within
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the 4 x 3 array, the shapes are evenly spaced vertically, with slightly more space vertically than
horizontally. The width:height ratio of the display screen is approximately 1:1.5.
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In the D’305 patent, icons are displayed on a display screen. (APLNDC00030421-

425.) The width:height ratio of the display screen is approximately 1:1.5. There is a 4 x 3 array
(4 columns, 3 rows) on a black background, with an additional row of icons in a gray gradient
area at the bottom of the screen. (See Figure 2, below.) Approximately the top 80% appears as a

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solid black background containing the 4 x 3 array. Against the black background, the 12 icons in

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the top portion provide a bright contrast and appear virtually illuminated against the black. The

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lower approximately 20% of the screen has a gray gradient-patterned background containing the

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additional row of icons—the main effect being that the top part and lower part of the screen

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appear as separate, bounded areas, setting off the icons in the lower part as a separate group. The

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icons in the D’305 patent have the shape of squares with rounded corners. Under each icon there

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is gray text that describes the application represented by the icon. There is a band across the top
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of the screen displaying information: signal strength, carrier name, time, and battery charge
status.

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I use the term “rounded rectangle,” the name of the shape drawn by a tool in Adobe Photoshop and Adobe
Illustrator, to refer to the shapes appearing in the D’790 patent as well as the shape of icons in the D’305 patent, the
D’334 patent, the iPhone Devices, and the Samsung Phones. Because the icons appear to have equal height and
width dimensions, I also refer to their shape as “square with rounded corners.”
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In dotted lines, the D’790 patent shows elements besides the display screen and the rounded rectangles. I have not
been asked to offer any commentary on anything shown in dotted lines.
EXPERT REPORT OF SUSAN KARE
Case No. 11 cv-01846-LHK

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Figure 2
D’305 Patent Fig. 14

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The D’334 patent shows a display screen with two additional features.

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(APLNDC00030409-4220.) First, there are additional icons placed in a fourth row in the top

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portion of the screen. Second, there is a row of dots between the top portion and the bottom

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portion of the screen. The width:height ratio of the display screen is approximately 1:1.5.

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Although the D’305 patent was published in black-and-white, I have been informed that this color image submitted
during prosecution of the patent is available from the USPTO. This drawing corresponds to Figure 1 in the issued
patent. I have been informed that this drawing has been produced to Samsung in this case. (See APLNDCY0000232557 at 232558.)
EXPERT REPORT OF SUSAN KARE
Case No. 11 cv-01846-LHK

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Figure 3
D’334 Patent Fig. 65

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Many icons in the D’305 and D’334 patents show a curved reflection of a light

source that creates a shiny, arc-shaped effect over the top half of the icon; this is visible in the

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icons for Text, Photos, YouTube, Stocks, Weather, Clock, Settings, Phone, Mail, iTunes, App

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Store, and iPod. (See Figures 2 and 3, above.) The design of particular icons is discussed in

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greater detail in Section V.A.2, below, in the discussion of the iPhone Devices’ user interface

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graphics.

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I have been informed that, unlike the D’305 patent, the D’334 does not incorporate the color versions of the designs
submitted during prosecution of the patent. I have been informed that Figure 3 is an image submitted during
prosecution of the patent that corresponds to Figure 6 in the issued patent and is available from the U.S. Patent and
Trademark Office. I have included this image because it is a higher quality image than what can be reproduced from
the printed patent. I have been informed that this drawing has been produced to Samsung in this case. (See
APLNDC-0000237387 at Y0000237392.)

EXPERT REPORT OF SUSAN KARE
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2. Graphical Styles of the iPhone Devices’ User Interface Graphics

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37.

I have examined the user interface graphics of an iPhone running iOS version

2.2.1. To do so I have examined an iPhone itself as well as “screen capture” images of an iPhone
home screen. (Exhibit 3.) I examined the images using Adobe Photoshop.

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The overall visual appearance of the iPhone screen is substantially the same as the

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designs shown in the Design Patents. The iPhone displays a grid of icons in the top portion of the

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screen. There are four columns and three full rows of icons, with a partial fourth row of icons.6

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There is a separate row of four icons along the bottom of the screen on a gray gradient-patterned

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background filling approximately the bottom 20% of the screen.

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39.

When the iPhone is configured to display icons on additional “pages,” the separate

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row of four icons along the bottom of the screen does not change when the user views the
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additional pages.
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The iPhone screen is 480 pixels tall and 320 pixels wide, measuring 3.5 inches

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(diagonal) with a pixel density of 163 pixels per inch.7 Each icon is a smooth (anti-aliased)

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rounded rectangle that is 57 x 57 pixels. The black background of pixels blends seamlessly with

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the black border of the phone itself, so the 16 icons are a bright contrast and appear virtually

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illuminated against the black. As in the D’305 and D’334 patents, many icons show a curved

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reflection of a light source that creates a shiny, arc-shaped effect over the top half of the icon; this
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is visible on all icons except Calendar, Camera, Maps, Calculator, Notes, Safari, and Contacts.
(See Figures 4(a) and 4(b), below; Exhibit 3.)

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The number of rows visible in the top portion of the screen can be reduced to three rows by moving some icons
onto a second “page,” as shown in Figure 4(b).
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http://support.apple.com/kb/SP2
EXPERT REPORT OF SUSAN KARE
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Figure 4(a)
iPhone Screenshot (Home Screen)

Figure 4(b)
iPhone Screenshot (With Three Icons
Moved to Separate “Page”)

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41.

Each iPhone icon is labeled with pale gray, sans-serif, approximately 12 point anti-

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aliased text (upper and lowercase). The baseline of the text is 14 pixels below the lower edge of
the icon.
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There is a distinctive, overall graphical consistency to the iPhone screen. The

button-like icons are all shaped as squares with rounded corners. Images are either cropped by
this shape (e.g., Notes), or a discrete image is set within the rectangle, which acts as a background
(e.g., Clock). Although graphic styles vary between the individual icons (e.g., a phone symbol

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for Phone, but photorealistic images for Photos and Camera), the uniform shape and precise

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placement in a grid provides a sense of organization and unity. There is more vertical space than

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horizontal space between icons, but because of the text, the amount of black space that runs

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vertically and horizontally between the icons appears similar. There is additional black

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background above and below the grid of icons to afford screen real estate for additional elements

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(e.g., time and battery life above, page indicator below). Another distinctive feature is the gray

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panel at the bottom of the screen that sets off four icons in a separate group; the distinctive green

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Phone icon anchors the far left.
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43.

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I have also examined an iPhone 3GS8 and an iPhone 4, each running iOS version

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5.0.1, and I have used Adobe Photoshop to examine screen capture images from the devices.

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(Exhibits 4, 5.) The overall visual appearance of the iPhone 3GS and iPhone 4 screens is

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substantially the same as the designs shown in the Design Patents.

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Figure 5
iPhone 3GS Screenshot (Home Screen)

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Figure 6
iPhone 4 Screenshot (Home Screen)

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I have been informed that the user interface graphics of the iPhone 3G and iPhone 3GS running the same operating
system are the same. Accordingly, My analysis regarding the iPhone 3GS throughout this report applies equally to
the iPhone 3G.
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44.

The user interface graphics of the iPhone 3GS and iPhone 4—the shape,

arrangement and spacing of the icons—is consistent with the original iPhone, but there are some
small changes. (See Figures 5 and 6, above.) The iPhone 3GS screen has the same size and
resolution as the original iPhone,9 but the 3.5 inch (diagonal) screen of the iPhone 4 has a higher

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resolution of 940 x 640, for a pixel density of 326 pixels per inch.10 Rather than a gray gradient-

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patterned background for the bottom portion of the screen, there is a rectangular, reflective

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surface that creates a virtual shelf, which serves as a base for the row of icons. The background is

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not black, but rather has a gray gradient with scattered water droplets. The anti-aliased text below

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the icons is white with a drop shadow. As in the D’334 patent, there is a row of dots between the

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top and bottom portion of the screen. These dots provide an indicator of which “page” of icons is

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displayed. When the second page is viewed, the second dot becomes white, and the first dot

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becomes gray.11 (Exhibits 4, 5.) Otherwise, the above description of the iPhone’s appearance

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applies equally to the user interface graphics of these phones.

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45.

The icon layouts depicted in Figures 1 through 6 are not the only ways to solve the

design problem of how to represent a set of icons on a touch screen device. Even restricted to the
choice of using icon images (as opposed to words in a menu), a grid of rectangular icons with

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rounded corners is not the only way to show and arrange them in a vertical space. For example,
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the icons could be presented as irregular shapes on a background, as shown in the Xperia arc S

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and Xperia neo V phones, both by Sony Ericsson. (Exhibits 6, 7.) Or, icons could be presented

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within or on top of other shapes, as in the Blackberry Storm 2 (Exhibit 8), which displays icons—

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designed with a strong, light-colored outline—in a grid but with each appearing on a black

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http://www.apple.com/iphone/iphone-3gs/specs.html
http://www.apple.com/channel/iphone/iphone-4/tour/specs.html. As discussed in footnote 20 below, the
proportional size of the icons in the iPhone 4 is unchanged from the iPhone and iPhone 3GS.
11
The iPhone shown above in Figure 4(a) does not display a series of dots because there is no second page of
applications. However, any of the applications shown could be moved off to a second page, which would cause the
dots to appear, as in Figure 4(b).
10

EXPERT REPORT OF SUSAN KARE
Case No. 11 cv-01846-LHK

15

1

rectangle that almost completely fills the space between the icons and has a gradient to add

2

dimension. The Xperia arc S and Storm 2 are shown in Figures 7 and 8, below. Another

3

alternative would have been to divide the screen using a visible grid. Also, any uniform color,

4
bands of color, gradient, or background texture might have been employed.
5
6
7
8
9
10
11
12
13
14
15
16
17
18

Figure 7
Sony Xperia arc S

19
20

46.

Figure 8
Blackberry Storm 2

Exhibit 9 is a collection of images depicting a variety of visually distinctive,

21
alternative approaches to showing a set of icons on a phone screen. As these examples
22
23

demonstrate, user interface graphics for phones need not display icons in a 4 x 4 or 4 x 5 grid, nor

24

do they need to feature icons shaped like those in the Design Patents and the iPhone Devices. In

25

fact, the icons can be displayed without using a regular grid of rows and columns at all, as shown

26

in Exhibit 10. (See figures 9 and 10, below.)

27
28
EXPERT REPORT OF SUSAN KARE
Case No. 11 cv-01846-LHK

16

1
2
3
4
5
6
7
8
9
10
11
12
13

Figure 9

Figure 10

14
15

47.

Two alternative approaches depicted in Exhibits 11 and 12, applications screens of

16

the Blackberry Torch 9850 and the Nokia N9, are particularly relevant examples because they are

17

visually distinctive from the iPhone but display roughly the same number of elements in a touch

18

screen space comparable to that of the iPhone Devices.

19
20
21
22
23
24
25
26
27
28
EXPERT REPORT OF SUSAN KARE
Case No. 11 cv-01846-LHK

17

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15

Figure 11
Blackberry Torch 9850

16
48.

17

First, the Blackberry Torch 9850 shown in Figure 11 (see Exhibit 11) has an 800 x

18

480, 3.7 inch (diagonal) screen with a pixel density of approximately 253 pixels per inch.12 As

19

shown in Figure 11, the applications screen of the Blackberry Torch 9850 shows a grid of up to

20

20 icons (four columns, five rows) on a dark background. Other than the presence of a grid of

21
icons, most of the graphical features of the applications screen distinguish its appearance from
22
23

that of the iPhone Devices and the Design Patents.
49.

24

At the top of the screen, above the icon grid, are two horizontal bands that occupy

25

approximately 17 percent of the available screen—a significant portion of the screen real estate.

26

The bands are on a background of dark reds and contain variable information such as date, time,

27
28

12

http://us.blackberry.com/smartphones/blackberry-torch-9850-9860/#!phone-specifications

EXPERT REPORT OF SUSAN KARE
Case No. 11 cv-01846-LHK

18

1

signal strength and battery charge, as well as indicators relating to sounds and alerts (speaker

2

icon) and the presence of messages (letter icon).

3

50.

Immediately above the grid of icons, there is a horizontal band that indicates the

4
categories of applications currently being shown in the grid. This band has a blue highlight with
5
6

faded edges when it is “selected” (see figure 11, above), but otherwise it appears along with the

7

grid of icons as a translucent overlay on top of the background. The icons appear to be stylized

8

illustrations; many suggest everyday objects (e.g., wrench, envelope, alarm clock, camera,

9

folders), but others are more abstract (e.g., Social Feeds, Backup Assistant). There is no pattern

10

of rectangular shapes or rounded corners for the icons; most are various irregular shapes, so even

11

though the icons are laid out in a grid, they do not read as uniform button-shaped icons. Because

12
13

the icons have different dimensions and border shapes, left and right edges and top and bottom

14

edges of adjacent icons are not precisely aligned. The icons are labeled below with upper and

15

lower case sans serif, anti-aliased, pale gray/blue text. When there is a highlight to indicate a

16

glossy finish (e.g., BlackBerry Messenger, Text Messages, Instant Messaging, Applications,

17

Games, App World) the light area runs diagonally from the upper left to lower right, and fills the

18

upper right portion of the icons. Unlike the iPhone Devices and the Design Patents, there is no

19
area on the screen for a separate group of omnipresent icons. The result of all of these elements is
20
21
22

an overall visual impression that is clearly different from that of the iPhone and the Design
Patents.

23
24
25
26
27
28
EXPERT REPORT OF SUSAN KARE
Case No. 11 cv-01846-LHK

19

1
2
3
4
5
6
7
8
9
10
11
12
13

Figure 12
Nokia N9

14
51.

15

Second, the Nokia N9 shown in Figure 12 has a 854 x 480, 3.9 inch (diagonal)

16

screen.13 (See Exhibit 12.) As shown in Figure 12, this device utilizes icons displayed within

17

uniform, extremely rounded rectangles that approach being read as circular. Most of the icon

18

images are minimal and symbolic, with few colors and details against a dominant background

19

color with a slight gradient. Most of the icon images read as flat symbols, although there are

20
subtle, shadowed dimensional effects. There is a fairly limited background color set: green, blue,
21
22

gray, white, magenta, and yellow. The overall visual impression of this interface is clearly

23

distinct from that of the iPhone Devices and the Design Patents, and it can display more icons on

24

the screen than the iPhone Devices can. All the rounded buttons are grouped together on one

25

continuous pane, rather than on separate “pages” as on the iPhone Devices, so that a row of icons

26

may only partially be on the screen as the user scrolls up or down. Also, unlike the iPhone

27
28

13

http://europe.nokia.com/find-products/devices/nokia-n9/specifications

EXPERT REPORT OF SUSAN KARE
Case No. 11 cv-01846-LHK

20

1

Devices and the Design Patents, there is no area on the screen for a separate group of omnipresent

2

icons.

3
4
5
6
7
8
9
10
11
12
13
14
15

Figure 13
“Meizu M8”

16
17
18
19

52.

Finally, the image shown in Figure 13 represents another alternative design

concept for interface graphics of a phone screen.14 (See Exhibit 13.) The dimensions of the
image are 675 x 450 pixels, giving it an aspect ratio of 1:1.5, the same as the iPhone Devices.

20
The dark gray background has a subtle highlight and narrow vertical stripes, and it is darker at the
21
22

edges and corners. It shows sixteen icons in a 4 x 4 grid, each within approximately 80 x 80

23

pixels, anti-aliased directly against the background (no rectangular button “containers”) and (with

24

the exception of the SMS icon) all rendered in a similar dimensional style with detail and

25

highlights. The icons generally show gray, black, and white, and primary colors (red, yellow, and

26
27
28

14

This graphic was obtained from http://www.loopycellphones.com/tag/meizu/. It is identified
as a screenshot for an upcoming phone called “Meizu M8.”

EXPERT REPORT OF SUSAN KARE
Case No. 11 cv-01846-LHK

21

1

blue), though there are some other accent colors. Several of the icons reference “throwback”

2

technology: an LP record, a cassette, film with sprockets, and a physical calculator. Each is set

3

off with a thin, dark shadow against the background. At the bottom of the screen, a rounded

4
rectangular panel “floats” against the background. It separates three gray gradient, unlabeled
5
6

icons from the others. There is no row of dots. The overall visual impression of this interface is

7

clearly distinct from that of the iPhone and the Design Patents, yet it displays approximately the

8

same number of icons on the screen—sixteen in the grid and three distinct icons in the separate

9

panel along bottom of screen—as the iPhone and the Design Patents.

10

3. Design of Specific iPhone Device Icons

11

53.

The five icons described below—the icons for Camera, Photos, Contacts, Phone

12
and iTunes—are specific solutions employed by the iPhone Devices for particular button images.
13
14

They also represent a variety of types of approaches (e.g., photorealistic vs. stylized symbol).

15

This suggests that the consistent use of the rounded rectangular buttons in a grid enabled a fair

16

amount of stylistic freedom regarding the icons themselves while preserving the overall

17

distinctive visual impression of the iPhone Devices.

18

Camera. This image15 is a photorealistic view of a generic camera lens as a

19

symbol for the Camera application. It suggests a lens built into a physical

20
camera (as opposed to an interchangeable lens) and is surrounded by a gray
21
metallic gradient, indicating a non-specific camera body. An unseen light

22
23

source creates reflected highlights, contributing to the precise, 3D quality of

24

the glass lens, which appears to recede into the button.

25
26
27
28

15

I have been informed that this image is the subject of U.S. Trademark Reg. No. 3,983,841.

EXPERT REPORT OF SUSAN KARE
Case No. 11 cv-01846-LHK

22

1

Photos. This image appears to be a realistic illustration or photograph of a

2

single sunflower matted against a blue sky background as a symbol for the

3

Photos application (used for viewing photos on the device). The flower

4
evokes a photograph but is an apparently arbitrary choice for a category often
5
6

represented by iconic vacation scenes (e.g., beaches, dogs, or mountain

7

landscapes). It symbolizes photos, but it does not suggest a literal

8

representation of a printed photo or typical digital photo aspect ratio. It

9

seems to be a generic photograph—without a reference to any particular

10
11

camera or photographic end product. The sunflower is a non-controversial
subject that is not specific, such as a photo of a particular, identifiable person

12
13

or place, and the blue sky both provides contrast against black and is a

14

general symbol of optimism. It also echoes the sunny day image on the

15

Weather icon. The icon is the subject of U.S. Trademark Reg. No.

16

3,866,200. (Dkt. 75-25.)

17

Contacts. This image is a cropped view of a tabbed, spiral-bound notebook.

18

The tabs protrude beyond the cover, and the debossed silhouette of a

19
person’s head and shoulders appears in the center. It is a combination of a
20
21

realistic or literal object and an idealized view of an object. It is realistic or

22

literal in that it is a recognizable physical object, with highlights to indicate

23

the metal of the wire binding. It is an idealized view in that the tabs are

24

visible beyond the cover, unlike those in most closed address books, and are

25

relatively large and few, and the silhouette on the cover is filled with a

26

gradient to appear three-dimensional rather than printed. The latter element

27
in particular is a curious, non-realistic detail among other more “book-like”
28
EXPERT REPORT OF SUSAN KARE
Case No. 11 cv-01846-LHK

23

1

graphic details. The icon is the subject of U.S. Trademark Reg. No.

2

3,886,197. (Dkt. 75-28.)

3

Phone. This image is a silhouette of a telephone handset resembling those

4
from classic Bell telephones designed by Henry Dreyfuss in the 1950s
5
(though he designed many similar handsets from 1938-198216). It is a

6

“retro” shape that is a nod to the era before cell phones. It is shown at a 45

7
iPhone

8

degree angle, facing right and in an upward position, set on a primary green

9

background. The characteristic arc of light causes the top part of the icon to

10

be brighter. This phone icon contrasts with the camera icon—it is a flat retro

11
12
13

shape of an entire object, whereas the camera lens is a highly detailed part of
iPhone 3GS/
iPhone 4

a device that suggests contemporary consumer electronics. In the iPhone

14

3GS and iPhone 4 that I examined (running iOS version 5.0.1), the Phone

15

icon has a texture of subtle, dark green with lighter green diagonal stripes

16

that run from the lower left to upper right. The overall texture appears to be

17

filled with a gradient, so the texture becomes very faint as it merges with the

18

bright, lighter green in the lower part of the icon. The diagonal stripes are

19
approximately 2 pixels across, but they are anti-aliased so their edges blend
20
with the background. There is more contrast (darker green texture) in a

21
22

horizontal band across the center of the icon. There is also a pale gray

23

gradient on the silhouette, but it reads as a solid color, and there also appears

24

to be a slight drop shadow. The phone in the iPhone icon is white and has no

25

drop shadow. The iPhone 3GS/iPhone 4 version of the icon appears in U.S.

26

Trademark Reg. No. 3,886,196. (Dkt. 75-23.)

27
16

28

See http://imprint.printmag.com/animation/saying-goodbye-to-an-old-friend-the-hardwired-attbell-systemwesternelectric-telephone/.

EXPERT REPORT OF SUSAN KARE
Case No. 11 cv-01846-LHK

24

1

iTunes. This image could be interpreted as an updated, stylized version of

2

the “iTunes Eighth Notes + CD” depicted in U.S. Trademark Reg. No.

3

2,935,038. (Dkt. 75-30.) It is presented as the silhouette of a pair of eighth

4
notes within a thick circular border. The round border could be seen as an
5
abstract reminder of LPs and CDs. The notes are an unmistakable symbol

6
7

for music, and they are the same basic notes used in the original iTunes logo

8

(see Figure 19, below). The background is violet, with a subtle starburst

9

tone-on-tone pattern that might suggest sound emanating from the image.

10

The icon is the subject of pending U.S. Trademark Application Serial No.

11

85/041,463. (Dkt. 75-29.)

12
13

54.

Each of the icons described above represents one particular graphic option for each

14

concept. There is a wide range of alternatives: both different ways to render those particular

15

choices, and different options altogether. In Exhibit 14 and in the following figures, I have

16

gathered a sampling of varying approaches to those icons to demonstrate that there is a variety of

17

valid solutions to these design problems. It is not difficult to find a range of graphic options that

18

could have been used instead.

19
20
21
22
23
24
25

Figure 14
Camera. A camera icon is fairly straightforward in that a camera is an easy

26
noun to represent visually. However, a camera lens could be used by itself, or
27
28

a camera body could be shown. The amount of detail shown to indicate a lens
EXPERT REPORT OF SUSAN KARE
Case No. 11 cv-01846-LHK

25

1

is completely variable. In fact, very little visual information is needed to make

2

a shape recognizable as a camera; a horizontal rectangle with a circular outline

3

for a lens and a stylized viewfinder or flash is sufficient. Also, the lens need

4
not be dominant; colors and angles can be varied; and a shutter can also
5
6

symbolize a camera or the act of taking photographs.

7
8
9
10
11
Figure 15

12
13

Phone. The phone icons on the iPhone Devices are not self-referential—they

14

do not look like an iPhone Device. They exhibit a classic silhouette, but they

15

are actually a bit discordant because they resemble a vintage, if generic, phone

16

handset, not a mobile phone. Other possible images might have included a

17

stylized cell phone, a more recent phone or receiver, a phone keypad, or a hand

18

holding a cell phone. The receiver could also be at a different angle, or vertical

19
20

(as is common on phone booths).

21
22
23
24
25
Figure 16
26
27
28

Photos. If the symbol for a user’s photos is a sample photographic image, the
possibilities are limitless. It makes sense to avoid a person, because there is no
EXPERT REPORT OF SUSAN KARE
Case No. 11 cv-01846-LHK

26

1

one typical person, but any kind of landscape, animal, or other easily

2

recognizable image from nature could be representative: a palm tree with the

3

ocean behind it, mountains, a bird, a starry sky with crescent moon, a blue sky

4
with clouds, a dog, etc. Most of these images work across cultures and evoke
5
typical subjects for a wide range of photographers. Besides a sunflower, any

6

easily recognizable flower or plant could work as an icon image.

7
8
9
10
11
12

Figure 17

13
14

iTunes. Music-related applications can be represented by a wide range of

15

symbols.17 A single musical note, instrument, headphones, or treble clef are all

16

simple shapes that are easy to recognize and associate with music. An image

17

incorporating a play button is also an option. Not being tied to a particular

18

type of music storage (e.g., disc or device) is advantageous for icon longevity.

19
20
21
22
23
24

Figure 18

25
Contacts. To represent Contacts, Apple uses a cropped illustration of a tabbed
26
notebook with wire-o binding containing a silhouette of a person’s head and

27
28

17

This discussion applies equally to the iTunes Eighth Note and CD icon described below.

EXPERT REPORT OF SUSAN KARE
Case No. 11 cv-01846-LHK

27

1

shoulders. There are small indications of letters of the alphabet on the tabs.

2

Many options that could work as Contacts icons feature the “@” sign, as

3

shorthand for contacting someone via email. Even the “@” sign alone is used

4
in some icons, although it also adorns many book images. Stylized groups of
5
people, and other styles of tabbed notebooks abound.

6
7

55.

Looking at the collection of icons portrayed in the iPhone Devices, the D’305

8

patent, and the D’334 patent as a group, the main unifying graphical feature is the rounded

9

rectangular button shape against black, or, for the iPhone 3GS and iPhone 4, the alternative

10
11

background depicted in Figures 5 and 6 above. In part because the style of the icons themselves
varies, the container shape is an essential element of the overall visual impression created by the

12
13

icon arrangement. There are images that read either as illustrations, photographs, or iconic

14

symbols. The Phone icon and iTunes icon are pale, near-monochromatic symbols – simplified

15

light gray or white shapes each centered on a distinctive bright-colored gradient background. The

16

Camera icon, in contrast, is a cropped view of a camera lens, rendered in a photorealistic style

17

with many details and realistic highlights, receding into what appears to be a brushed aluminum

18

camera body. The Contacts icon is a cropped view of an illustrated, tabbed notebook, and the

19
Photos icon shows a photographic image of a single deep yellow sunflower with two green
20
21
22

leaves, matted against blue sky.
56.

It would have been possible, if desired, to design all the icons of the iPhone

23

Devices using a single, consistent stylistic approach. For example, the camera lens is detailed and

24

“modern” while the phone is stylized, “retro,” and detail-free. It would have been possible

25

instead to create a simplified camera icon to “match” the style of the Phone icon. As designed,

26

while there is a variety of different graphic styles for the icons—the simple (e.g., chat bubble for

27
Text/Messages) versus the detailed (e.g., sunflower for Photos), the literal (e.g., camera lens for
28
EXPERT REPORT OF SUSAN KARE
Case No. 11 cv-01846-LHK

28

1

Camera) versus the metaphorical (e.g., gears for Settings)—the consistent rounded rectangular

2

shape of the icons and their layout on the screen unifies them in producing their overall visual

3

appearance as a group.

4
4. Design of the iTunes Eighth Notes + CD Icon
5
57.

6

This icon (see Figure 19, below) combines a background image (optical disc) with

7

a pair of eighth notes that appear to be in the foreground because they overlap the outline of the

8

disc. The eighth note at left is slightly lower, so the bar that connects them angles up to the right.

9

The disc appears as concentric circles—not exactly circular, but condensed at a slight angle. The

10

disc is easily recognizable as an audio CD due to the size and location of the two inner circles and

11

the fact that it is paired with musical notes. This icon is registered in U.S. Trademark

12
Registration No. 2,935,038. (Dkt. 75-30.)
13
14
15
16
17
18
Figure 19

19
B.

Similarity Between Apple Designs and Samsung Icons and User Interface
Graphics

58.

20

I have been asked to examine Samsung Phones and opine on the design—

21
22
23

including with respect to layout and icon design—of the “applications screens” that are accessible

24

via a button displayed on the phones’ default home screens.18 The phones I have analyzed are:

25

•

Captivate

26
27
28

18

The iPhone Devices, in contrast, do not have a “home screen” that is separate from the screens showing a grid of
icons as in Figures 4 through 6. With respect to the iPhone Devices, “home screen” and “applications screen” are
synonymous.

EXPERT REPORT OF SUSAN KARE
Case No. 11 cv-01846-LHK

29

1
2
3

VIII. EXHIBITS TO BE USED
93.

I anticipate using as exhibits during trial certain documents and things referenced

or cited in this report or accompanying this report. I also anticipate using other demonstrative

4
exhibits or things at trial.
5
6
7
8

Dated: March 22, 2012
SUSAN KARE

9
10
11
12

sf-3098252

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
EXPERT REPORT OF SUSAN KARE
Case No. 11 cv-01846-LHK

52

Exhibit 1

Susan Kare
1 Presidio Avenue
San Francisco, CA 94115
415 346 3629
415 921 1740 fax
www.kare.com
Education
B.A. Mount Holyoke College, summa cum laude, fine arts and English (1975)
M.A., Ph.D. New York University, fine arts (1978)
Experience
1982 - 1985
1986 - 1988
1987 2005 – 2009
1990 -1994

Macintosh Artist; Creative Director, Apple Computer
Creative Director, NeXT, Inc.
Founder, Susan Kare LLP (user interface graphic design practice)
Founder; Creative Director, Glam Media, Inc.
User Interface Graphics, General Magic, Inc.

Additional Information
1982 - 1985 Designed fonts and screen images for the Apple Macintosh and related literature
1986 - 1988 Managed the development of the NeXT, Inc. graphic identity
1988 - 1989 Designed screen appearance for Microsoft Corporation’s Windows 3.0
2001
Received the Chrysler Design Award
2002 - present Board of Directors, Manhattan Toy Company LLC
2003 - 2004 Citizens Coinage Advisory Committee, U.S. Mint (Congressional appointment)
2004
Designed retail merchandise (stationery), Museum of Modern Art, New York
2007-2010
Designed Facebook’s “virtual gifts”
List of United States Patents and Patent Applications Named on as Inventor
D575,302
D561,192
D561,191
D424,036
D403,674
D403,673
D399,501
D399,196
D397,687
D395,428
D395,427
6,361,851
5,611,031
5,541,656
11/515,618
12/340,112
Partial List of Past and Current Clients (more at http://www.kare.com/design_bio.html)
Apple Inc.
AT&T
Autodesk, Inc.
BBDO
Chumby Industries
Danger Research
Digg, Inc.
DualCor, Inc.

Electronic Arts
Facebook, Inc.
Fidelity Investments
Fossil, Inc.
Galileo International
Getty Technology Group
Google, Inc.
Handspring
Hewlett-Packard, Inc.
IBM Corporation
Intel Corp.
Intellisync
Logitec
Microsoft Corporation
Motorola, Inc.
Museum of Modern Art, New York
Netscape Communications
Nokia
Oracle Corporation
Palm
Pelco, Inc.
Peoplesoft, Inc.
Plastic Logic, Inc.
Scribd, Inc.
Sequoia Capital
Siebel Systems
Silicon Graphics, Inc.
Sun Microsystems
Swatch, Inc.
Thomson-Reuters, Inc.
Intel Corp.
Vodafone, Inc.

Wireless Generation, Inc.
Xerox Corp.
Yahoo, Inc.

Exhibit 2

Apple Inc. v. Samsung, No. 11-01846 LHK (PSG)
Documents Considered by Susan Kare
BEG BATES

END BATES

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Apple Inc. v. Samsung, No. 11-01846 LHK (PSG)
Documents Considered by Susan Kare
Amended Complaint (Dkt. 75), and Exhibits 23 (Dkt. 75-23), 25 (Dkt. 75-25), 28 (Dkt. 75-30), 29 (Dkt. 7529), and 30 (Dkt. 75-30)
Bressler Reply Declaration (Dkt. 279-0)
Order Denying Preliminary Injunction (Dkt. 452)
iPhone, iPhone 3GS, iPhone 4 Devices
Devices depicted in Exhibits 6-8, 11-12, and 15-27

sf-3123928

Exhibit 3

iPhone Screen Capture

iPhone Screen Capture

iPhone Screen Capture

Exhibit 4

iPhone 3GS Screen Capture

iPhone 3GS Screen Capture

Exhibit 5

iPhone 4 Screen Capture

iPhone 4 Screen Capture

Exhibit 6

Sony Ericsson Xperia arc S

Sony Ericsson Xperia arc S

Sony Ericsson Xperia arc S

Sony Ericsson Xperia arc S

Exhibit 7

Sony Ericsson Xperia neo V

Sony Ericsson Xperia neo V

Sony Ericsson Xperia neo V

Exhibit 8

Blackberry Storm 2

Blackberry Storm 2

Blackberry Storm 2

Exhibit 9

Exhibit 10

http://linuxbird.deviantart.com/art/Mockup-MeeGo-handset-260376988

http://www.warungdigital.com/wp-content/uploads/2011/05/kddi-infobar-a01-android.jpg

http://www.portablegadgets.net/index.php?id=300

http://www.hpsblog.com/2011/02/personalize-your-phone-screen-with.html

http://www.geeky-gadgets.com/wp-content/uploads/2009/02/windows-mobile-6-5.jpg

Exhibit 11

Blackberry Torch 9850

Blackberry Torch 9850

Exhibit 12

Nokia N9

Nokia N9

Exhibit 13

Meizu M8
(http://www.loopycellphones.com/tag/meizu/)

Exhibit 14