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

Filing 927

Administrative Motion to File Under Seal Samsung's Motion to Exclude Opinions of Certain of Apple's Experts filed by Samsung Electronics America, Inc.(a New York corporation), Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC(a Delaware limited liability company). (Attachments: #1 Samsung's Motion to Exclude Opinions of Certain of Apple's Experts, #2 Declaration Declaration of Joby Martin In Support of Samsung's Motion to Exclude Opinions of Certain of Apple's Experts, #3 Exhibit 1, #4 Exhibit 2, #5 Exhibit 3, #6 Exhibit 4, #7 Exhibit 5, #8 Exhibit 6, #9 Exhibit 7, #10 Exhibit 8, #11 Exhibit 9, #12 Exhibit 10, #13 Exhibit 11, #14 Exhibit 12, #15 Exhibit 13, #16 Exhibit 14, #17 Exhibit 15, #18 Exhibit 16, #19 Exhibit 17, #20 Exhibit 18, #21 Exhibit 19, #22 Exhibit 20, #23 Exhibit 21, #24 Exhibit 22, #25 Exhibit 23, #26 Exhibit 24, #27 Exhibit 25, #28 Exhibit 26, #29 Exhibit 27, #30 Exhibit 28, #31 Exhibit 29, #32 Exhibit 30, #33 Exhibit 31, #34 Exhibit 32, #35 Exhibit 33, #36 Exhibit 34, #37 Proposed Order Granting Samsung's Administrative Motion to File Documents Under Seal)(Maroulis, Victoria) (Filed on 5/17/2012)

EXHIBIT 23

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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,
v.

Case No.

11-cv-01846-LHK

EXPERT REPORT OF SUSAN
KARE

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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TABLE OF CONTENTS

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Page
I. INTRODUCTION
.............................................................................................................1
II. QUALIFICATIONS
..........................................................................................................1
III. MATERIALS
CONSIDERED ..........................................................................................5
IV.
FUNDAMENTALS OF ICON DESIGN ..........................................................................6
V. OPINIONS
REGARDING SIMILARITIES BETWEEN APPLE AND
SAMSUNG ICONS AND USER INTERFACE GRAPHICS ..........................................8
A.
Characteristics of Apple Icons and User Interface Graphics .................................8
B.
Similarity Between Apple Designs and Samsung Icons and User
Interface Graphics ................................................................................................29
C.
The Similarities Between the Samsung Phones and the iPhone
Devices Support the Possibility that Samsung Used the iPhone
Devices as a Guide in Designing Icons and User Interface Graphics
for the Samsung Phones. ......................................................................................44
VI. CONCLUSI ON ................................................................................................................51
VII. SUPPLEMENTATION ...................................................................................................51
VIII. EXHIBITS TO BE USED................................................................................................52

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EXPERT REPORT OF SUSAN KARE
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EXPERT REPORT OF SUSAN KARE

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I.

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INTRODUCTION
1.

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.
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
2.

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
identity design services.
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
arts background and my experience doing Ph.D.-level research contribute to my ability to develop
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.
6.

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
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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
typefaces. From 1986 through 1988, I was the creative director at NeXT, Inc., where I managed
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
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
informal advisor.
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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9.

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

the bitmap fonts that shipped with the original Macintosh in 1984, including Chicago, New York,
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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
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
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
meaning. Icons can be used to represent a variety of user interface elements: applications, tools,
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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13.

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

interface graphics for average users. Through my practical experience, I have gained an
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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

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
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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17.

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
applications screens of the following Samsung phones: Captivate, Continuum, Droid Charge,
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.

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

MATERIALS CONSIDERED
21.

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
well as the other documents or reference materials cited or listed in this report. In addition, I have
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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I have been informed that expert discovery in this lawsuit is still ongoing, and I

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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.
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

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
designer must solve: How can a particular concept or function be represented by an image?
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
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
slot) to represent an electronic mail application. An icon of an envelope, for example, still
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
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
constraints, such as pixel dimensions, bit depth, specific color palette, or touch screen issues. An
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
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
typically an iterative process, with design alternatives presented and a final icon set chosen in
tandem with a client decision maker.
V.

OPINIONS REGARDING SIMILARITIES BETWEEN APPLE AND SAMSUNG
ICONS AND USER INTERFACE GRAPHICS
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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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
the row along the bottom of the display screen, the shapes are evenly spaced horizontally. Within
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.
34.

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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
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
is gray text that describes the application represented by the icon. There is a band across the top
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.
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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
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Figure 3
D’334 Patent Fig. 65

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36.

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
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.)

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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.
38.

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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

row of four icons along the bottom of the screen does not change when the user views the
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
reflection of a light source that creates a shiny, arc-shaped effect over the top half of the icon; this
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
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Figure 4(a)
iPhone Screenshot (Home Screen)
41.

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

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

aliased text (upper and lowercase). The baseline of the text is 14 pixels below the lower edge of
the icon.
42.

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
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
Phone icon anchors the far left.
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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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2
3
4
5
6

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

7

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

8

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

9

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

10

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

11
12
13

top and bottom portion of the screen. These dots provide an indicator of which “page” of icons is
displayed. When the second page is viewed, the second dot becomes white, and the first dot

14

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

15

applies equally to the user interface graphics of these phones.

16
17
18
19
20
21

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

22

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

23

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

24

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

25
26
27
28

9

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
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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
4
5

alternative would have been to divide the screen using a visible grid. Also, any uniform color,
bands of color, gradient, or background texture might have been employed.

6
7
8
9
10
11
12
13
14
15
16
17
18

Figure 7
Sony Xperia arc S

19
20
21
22
23

46.

Figure 8
Blackberry Storm 2

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

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

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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
21
22
23

20 icons (four columns, five rows) on a dark background. Other than the presence of a grid of
icons, most of the graphical features of the applications screen distinguish its appearance from
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

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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
4
5
6

50.

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

categories of applications currently being shown in the grid. This band has a blue highlight with
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
12
13

though the icons are laid out in a grid, they do not read as uniform button-shaped icons. Because
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
19
20
21
22

upper right portion of the icons. Unlike the iPhone Devices and the Design Patents, there is no
area on the screen for a separate group of omnipresent icons. The result of all of these elements is
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

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

Figure 12
ia N9

Nok
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
20
21
22

color with a slight gradient. Most of the icon images read as flat symbols, although there are
subtle, shadowed dimensional effects. There is a fairly limited background color set: green, blue,
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

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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
16

Figure

17
18
19
20
21
22

52.

13
“Meizu M8”
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.
The dark gray background has a subtle highlight and narrow vertical stripes, and it is darker at the
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
4
5
6

off with a thin, dark shadow against the background. At the bottom of the screen, a rounded
rectangular panel “floats” against the background. It separates three gray gradient, unlabeled
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
12
13
14

53.

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

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

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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
4
5
6

Photos application (used for viewing photos on the device). The flower
evokes a photograph but is an apparently arbitrary choice for a category often
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
12
13

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
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
19
20
21

The tabs protrude beyond the cover, and the debossed silhouette of a
person’s head and shoulders appears in the center. It is a combination of a
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
27
28

gradient to appear three-dimensional rather than printed. The latter element
in particular is a curious, non-realistic detail among other more “book-like”
EXPERT REPORT OF SUSAN KARE
Case No. 11 cv-01846-LHK

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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
28

16

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

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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
12
13

85/041,463. (Dkt. 75-29.)
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
26
27
28

Figure 14
Camera. A camera icon is fairly straightforward in that a camera is an easy
noun to represent visually. However, a camera lens could be used by itself, or
a camera body could be shown. The amount of detail shown to indicate a lens
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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
4
5
6

for a lens and a stylized viewfinder or flash is sufficient. Also, the lens need
not be dominant; colors and angles can be varied; and a shutter can also
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
19
20

holding a cell phone. The receiver could also be at a different angle, or vertical
(as is common on phone booths).

21
22
23
24
25
26
27
28

Figure 16
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
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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
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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
12
13

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
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
19
20
21
22

camera body. The Contacts icon is a cropped view of an illustrated, tabbed notebook, and the
Photos icon shows a photographic image of a single deep yellow sunflower with two green
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
27
28

while there is a variety of different graphic styles for the icons—the simple (e.g., chat bubble for
Text/Messages) versus the detailed (e.g., sunflower for Photos), the literal (e.g., camera lens for
EXPERT REPORT OF SUSAN KARE
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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
4

appearance as a group.
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
12
13

the fact that it is paired with musical notes. This icon is registered in U.S. Trademark
Registration No. 2,935,038. (Dkt. 75-30.)

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

•

26
27
28

Captivate

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
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1

•

Continuum

2

•

Droid Charge

•

Epic 4G

•

Fascinate

6

•

Galaxy S 4G

7

•

Galaxy S i9000

8

•

Gem

•

Indulge

•

Infuse 4G

12

•

Mesmerize

13

•

Galaxy S Showcase (i500)

14

•

Vibrant

3
4
5

9
10
11

15
16
17
18

59.

Photographs of the applications screens of each of the Samsung Phones are

contained in Exhibits 15 through 27. I have examined each of the phones themselves. I have also
examined screen capture images of the applications screens of the Droid Charge, Fascinate,

19

Mesmerize, and Galaxy S i9000 (the only four phones from which I could obtain screen capture

20

images created using the phones’ built-in operating system). (Exhibits 28, 29, 30, 31.)

21

1. Similarities Between the Icon Layouts of the Samsung Phones and the
iPhone Devices

22
60.

23

The aspect ratios of the Samsung screens are either the same (1:1.5) or similar

24

(1:1.67) to that of the iPhone Devices (1:1.5).19 The screens have black backgrounds, with

25

battery, time, signal strength, and other status information in a band across the top. In the Droid

26
27
28

19

The aspect ratio for each phone was calculated using the resolution available from specifications printed on the
device packaging or available on Samsung’s website (http://www.samsung.com). I also confirmed the screen
resolutions (800 x 480, for a ratio of 1:1.67) of the Droid Charge, Fascinate, Mesmerize, and Galaxy S i9000 by
using Adobe Photoshop to examine screen shots taken by the devices themselves.
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1

Charge, Fascinate, Mesmerize, and Galaxy S i9000, this row is 36 pixels tall, or 4.5 percent of the

2

800 pixel screen height. For the other Samsung Phones, the row of status information appears to

3
4
5
6

be the same or substantially the same height. For all but three of the Samsung Phones, the row of
status information is a slightly lighter shade of gray against the apparently black background of
the rest of the screen (the Continuum, Mesmerize, and Galaxy S Showcase (i500) have a lighter

7

gray or blue bar). The iPhone Devices also have a row in which signal strength, time, and battery

8

are displayed in the same manner as shown in the D’305 and D’334 patents. The row is 20 pixels

9

tall in the iPhone and iPhone 3GS (4.17 percent of the 480 pixel screen height) and 40 pixels tall

10
11
12
13
14

in the iPhone 4 (4.17 percent of the 960 pixel screen height). For both the iPhone Devices and the
Samsung Phones, the narrow row of status information uses a small area of the display and does
not significantly affect the overall visual impression of the screen.
61.

The Samsung Phones use the same basic layout as the iPhone Devices: icons

15

arranged in a grid of four rows and four columns in the top portion of the screen, and at the

16

bottom of the screen there is a panel that holds four key icons, with the Phone icon anchoring the

17

left-hand side. (Exhibits 15-31.) The panel sets off those four icons, which do not change as

18
19
20
21

different pages of icons are viewed, and has a gradient to create the appearance of a separate area.
The icons in this area generally have a dominant rectangular shape with rounded corners. All of
the icons in the top portion of the screen appear on rectangles with rounded corners, each labeled

22

below with light gray or white, sans-serif, anti-aliased upper and lower case type, and each set

23

apart from each other with horizontal and vertical bands of black background color. As on the

24

iPhone, the colorful rounded rectangles contrast with the black of the background, especially

25

some with jewel-like tones of green, blue, and magenta. The rounded rectangular icons are,

26
27
28

proportionally, approximately the same size as the icons on the iPhone. On the Droid Charge,
Fascinate, Mesmerize, and Galaxy S i9000, the icons are 84 x 84 pixels, which equals 10.5
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31

1

percent of the 800 pixel screen height and 17.5 percent of the 480 pixel width; the iPhone’s 57 x

2

57 pixel icons are 11.9 percent of the screen height and 17.8 percent of the screen width.20 There

3
4
5

is also a row of dots that indicates which “page” of applications icons is currently being
displayed.

6
7
8
9
10
11
12
13
14
15
16
17
18

Figure 20 (See Exhibit 27)
Vibrant Applications Screen
(Page 1 of Applications)

19

Figure 21 (See Exhibit18)
Epic 4G Applications Screen
(Page 1 of Applications)

20
2. Similarity Between Apple Icons and Samsung Icons

21
22
23
24
25
26

62.

Exhibit 32 shows the Samsung icons for Contacts, Camera, Gallery, Music/Music

Player, and Phone next to the corresponding Apple icons appearing in the iPhone Devices, the
D’305 patent, the D’334 patent, and various trademark registrations and applications. At a
glance, a number of overall similarities between these pairs of icons are evident and—more

27
28

20

The proportional size of the iPhone 3GS and iPhone 4 icons (measured without including the drop shadow) are
exactly the same as on the iPhone: 114 x 114 pixels out of 960 x 640 (11.9 percent of height; 17.8 percent of width).
EXPERT REPORT OF SUSAN KARE
Case No. 11 cv-01846-LHK

32

1

notably—the stylistic differences between the individual icons are consistent from pair to pair21:

2

•

Address Book (Apple) vs. Contacts (Samsung):.

3
4
5
6
7

Apple

8
9

Samsung
Figure 22

These icons share a similar head and shoulders silhouette in a square book-like

10

format with a ring binding on the left edge. The bindings are not identical, but

11

they both are drawn to appear to be metal rings that pierce the book cover. Both

12

book cover silhouettes (which appear to be the head and shoulders of a person with

13
14

short hair) have a similar amount of dimension, though Samsung’s is embossed

15

and Apple’s is debossed. There is a slight lighting effect from the top. Because of

16

these similarities, both icons contribute similarly to the overall visual impression

17

of the screens in which they appear on the respective phones. This analysis applies

18

to the Contacts icon appearing in each of the Samsung Phones I examined.

19
20
21
22
23
24
25
26
27
28

21

Except where indicated, the Samsung icons in the comparisons below are taken from the screen capture images
shown in Ex. 29.
EXPERT REPORT OF SUSAN KARE
Case No. 11 cv-01846-LHK

33

1

•

Camera (Apple) vs. Camera (Samsung):

2
3
4
5
6

Apple

7

Samsung
Figure 23

8

Samsung’s camera icon uses a graphic style similar to that of the camera icon

9

common to the D’305 patent, D’334 patent, and the iPhone Devices. Both camera

10
11
12
13

icons share what reads as a brushed aluminum-finish, with the emphasis on a
highly detailed, dimensional lens with reflected light, and what appears to be
concentric circles of lens housing. Color is used in the illustration of both lenses,

14

and blue appears as the predominant accent color in each. Although one image is

15

cropped and one shows a whole camera, the dominant feature in both is the round,

16

embedded lens with glossy highlights. There are other graphic style options for a

17

camera icon, but these two particular camera icons make a similar visual

18
19
20
21

impression, as they appear “realistic,” particularly when surrounded by other
styles of icon images on the respective phones. This analysis applies to the
Camera icon appearing in each of the Samsung Phones I examined, although it

22

applies to a lesser extent to the Camera icon in the Galaxy S 4G and Vibrant,

23

which uses a consistent graphical style but has a black camera with a less

24

prominent lens.

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

34

1

•

Photos (Apple) vs. Gallery (Samsung):

2
3
4
5
6

Apple

7

Samsung
Figure 24

8

Both of these icons represent the user’s photograph collection, and both use a

9

photographic image of a yellow flower with many long petals that appear textured

10
11
12
13

with ridges and appear to narrow at the tips, like the petals of a sunflower. The
whole flower appears in Apple’s icon. The Samsung image is cropped and
zoomed-in, but the yellow petals and green leaves looks similar to those in Apple’s

14

icon and could suggest the same type of flower to the user. The similarity between

15

the two icons is enhanced by the appearance of a nearly identical curved reflection

16

of a light source that creates a shiny, arc-shaped effect in the top half of each icon.

17

There is a striking similarity of subject choice along with color and petal shape.

18
19
20
21

Even though the Samsung icon includes round rectangles to suggest picture
frames, and a play button, the green of the play button keeps the coloring
consistent with Apple’s icon. Because of these similarities, both icons contribute

22

similarly to the overall visual impression of the screens in which they appear on

23

the respective phones. The similarities between these designs also could cause

24

users to see them as coming from the same company or source, or representing the

25
26
27
28

same brand. This is especially the case because each icon uses the same
distinctive subject to represent photos, even though, as discussed above, a yellow
flower is not a symbol predominantly or historically associated with photos (e.g.,
EXPERT REPORT OF SUSAN KARE
Case No. 11 cv-01846-LHK

35

1

beaches with palm trees and mountains). This analysis applies to the Gallery icon

2

appearing in each of the Samsung Phones I examined except for the Droid Charge.

3
4

•

Phone (Apple) vs. Phone (Samsung):

5
6
7
8
9

Apple

10

Figure 25

Samsung

11

The icons for Phone occupy the bottom left corner of the display in the Samsung

12

Phones, the D’334 and D’305 patents, and the iPhone Devices. As explained in

13

Paragraph 53, there are two slightly different Apple Phone icons: the iPhone has

14

the same Phone icon as in the D’334 and D’305 patent, whereas the iPhone 3GS

15
16
17
18

and iPhone 4 have the slightly different icon shown in U.S. Trademark Reg.
No. 3,886,196. All three icons (Samsung’s Phone icon and Apple’s two slightly
different icons) feature a stylized handset silhouette similar to a classic 1950s-style

19

desktop phone. The Samsung Phone icon closely resembles both of the Apple

20

icons:

21
22

o Regarding the iPhone 3GS/iPhone 4 Phone icon, both it and the Samsung

23

icon appear light gray with shading towards white. Each slants diagonally

24

from upper left to lower right across a green rounded rectangle with a

25

gradient, and each faces the upper right. Both icons show a classic desk

26

phone receiver. The receivers are not precisely identical, but they both

27

evoke the same real-world classic phone, without a cord. The background

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

36

1

is not an identical shade of green, but the greens are similar, and the pale

2

gray gradient palette against the green (with a slight, edge-defining drop

3
4
5
6

shadow) creates a similar amount of contrast. Because of the similarities
between these designs, I would expect that users might see them as coming
from the same company or source, or representing the same brand. Also,

7

both icons contribute similarly to the overall visual impression of the

8

screens in which they appear on the respective phones, in particular

9

because they appear in the same location on the screen. This analysis

10

applies to the Phone icon appearing in each of the Samsung phones I

11
12
13

examined.
o Regarding the iPhone/D’334/D’305 Phone icon, it shows a classic desk

14

phone receiver in white, anti-aliased against a green background. It slants

15

from the upper left to lower right and faces the upper right corner of its

16

rounded rectangular background. The lightest shades of green are in the

17

top half, where there is a highlight, and the darker shades of green are in

18
19
20
21

the lower half. The Samsung Phone icon is similar; it also shows a pale,
retro-style receiver that slants diagonally and faces the upper right. It is
also shown on a rounded rectangular background element with shading that

22

is brightest toward the top and darker below. Neither receiver has any

23

indication of a cord; they are symbols as opposed to “realistic”

24

illustrations. Both icons contribute similarly to the overall visual

25

impression of the screens in which they appear on the respective screens, in

26
27
28

particular because they appear in the same location on the screen. This
analysis applies to the Phone icon appearing in each of the Samsung
EXPERT REPORT OF SUSAN KARE
Case No. 11 cv-01846-LHK

37

1

Phones I examined.

2

•

iTunes (Apple) vs. Music/Music Player (Samsung):

3
4
5
6
7
8

Samsung22

Apple

9

Figure 26

10

o Regarding the iTunes Eighth Notes + CD icon (U.S. Trademark Reg.

11
12

No. 2,935,038; far left in Figure 26), the Samsung Music/Music Player

13

icon—which appears in two slightly different versions, one with light blue

14

eighth notes and one with red eighth notes—closely resembles the Apple

15

icon. Both feature an image of a compact disc with a pair of eighth notes

16

as an overlay. In each, the pair of notes shows the higher note on the right,

17

and the bar that connects the notes slopes up slightly to the right. In each

18

icon, the notes appear to be in the foreground (as opposed to being printed

19
20

on the disc) because part of the notes overlap the round border of the disc,

21

and the vertical line of the left note crosses the center portion of the disc.

22

Considering the fact that, as explained above in paragraph 54, there is a

23

wide range of alternative icons available for symbolizing music, the

24

similarities between these designs might cause a user to see them as

25

coming from the same company or source, or representing the same brand.

26
27
28

22

The Music Player icon with red eighth notes appears in the Captivate, Epic 4G, Galaxy S 4G, Galaxy S i9000,
Infuse 4G, and Vibrant. The example shown here and below is from a photograph of the Captivate (Exhibit 15).
EXPERT REPORT OF SUSAN KARE
Case No. 11 cv-01846-LHK

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1

This analysis applies to the Music/Music Player icon appearing in each of

2

the Samsung Phones I examined.

3
4
5
6
7
8

Apple

9

Samsung
Figure 27

10

o Regarding the iTunes icon (U.S. Trademark Application Serial No.

11

85/041,463, far left in Figure 27), it shares several elements with the

12
13

Samsung Music Player icon. First, it appears on a purple background with

14

what appears to be a magenta radial gradient. Both have darker areas at the

15

left and right. Both share a circular element combined with a pair of eighth

16

notes, and both pairs of eighth notes have a slightly higher note on the

17

right, which causes the horizontal bar that connects them to slope upward

18

toward the right. Because of these similarities, both icons contribute

19
20

similarly to the overall visual impression of the screens in which they

21

appear on the respective phones. This analysis applies to the Music/Music

22

Player icon appearing in each of the Samsung Phones I examined.

23
24

63.

Figure 28 shows the Samsung icons for the Gmail (or Google Mail),23 Email,24 and

Talk applications as well as the iTunes, App Store, and Messages icons from the iPhone 4:

25
26
27
28

23

The Gmail icon appears in this form on all of the Samsung Phones except for the Gem, which shows the Gmail
icon with an orange background.
24
The Email icon appears in this form on all the Samsung Phones except for the Galaxy S 4G, Gem, Indulge, and
Vibrant. For some of the screens shown in Exhibits 15 through 31, the icon is not displayed in this form, because it
appears without the green background when moved to the row of icons at the bottom of the screen.
EXPERT REPORT OF SUSAN KARE
Case No. 11 cv-01846-LHK

39

1
2
3
4
5
6
7
8
9
10

Figure 2825

11

Although the icons for Email (Samsung) and Messages (Apple) represent different subjects, they

12
13
14
15

share a similar green gradient with a diagonal texture behind pale gray icons. This use of similar
backgrounds contributes to the overall visual similarity between the applications screens of the
Samsung Phones, the iPhone 3GS, and iPhone 4. Similarly, the icon for Gmail (Samsung)

16

obviously represents a different subject than the iTunes (Apple) icon, but they share a very similar

17

magenta radial gradient background, visible behind a pale image. This use of similar

18

backgrounds contributes to the overall visual similarity between the applications screens of the

19

Samsung Phones and iPhone Devices. A similar resemblance between backgrounds exists

20
21
22
23

between the App Store icon and the blue backgrounds appearing in various Samsung icons, such
as Skype mobile, Settings, and Talk. (See Exhibits 15 through 31.) For example, the App Store
icon (Apple) and the Talk icon (Samsung) shown in Figure 28 share a similar blue tonal striped

24

background. Although both are not radial gradients, they have similarly colored bands, similar

25

lighter blues at the bottom and darker areas at the sides. The use of a grid of square icons that

26

have rounded corners and share similarly textured and shaped jewel-toned backgrounds with

27
28

25

These images are taken from screen capture images of the iPhone 4 (Exhibit 5) and Fascinate (Exhibit 29).

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

40

1

equivalently detailed imagery evokes a particular overall graphical style and contributes to the

2

overall visual similarity between the applications screens of the Samsung Phones and the iPhone

3
4
5
6

Devices. The similarities with respect to the patterns and textures in the backgrounds of the
iTunes and App Store icons also apply to the D’334 patent, although not with respect to the
particular colors.26
64.

7

As mentioned above, many icons in the D’305 patent, the D’334 patent, and the

8

iPhone Devices show a curved reflection of a light source that creates a shiny, arc-shaped effect

9

in the upper half of the icon. A nearly identical effect is present in numerous Samsung icons,

10

including: Clock (all except Gem), Gallery (all except Droid Charge), Places (e.g., Epic 4G,

11
12
13

Indulge), Navigation (e.g., Epic 4G, Galaxy S i9000). This similarity further contributes to the
overall visual similarity between the applications screens of the Samsung Phones and the iPhone

14

Devices, the D’305 patent, and the D’334 patent. The impact is well demonstrated by the Clock

15

icon common to the iPhone, the D’305 patent, and D’334 patent when compared with the Clock

16

icon on the Samsung Phones. Both are compositions that feature a round wall clock. The

17

Samsung clock appears on a blue-gray gradient background and shows four numerals. The Apple

18
19
20
21

clock appears on a black to gray background and has twelve numerals and a second hand.
However, the basic commonality of the form factor, plus the distinctive highlight (common to
many Apple icons), contributes to the similar appearance of these icons:

22
23
24
25
iPhone Clock
Samsung Clock
Figure 29

26
27
28

26

As noted in footnote 4, the D’334 patent does not incorporate color. The comparison to the D’334 patent here is
only with respect to the appearance of the design shown in the patent (see Figure 3; APLNDC00030421-425).
EXPERT REPORT OF SUSAN KARE
Case No. 11 cv-01846-LHK

41

1

3. Overall Visual Impression of Samsung Applications Screens Versus the
Overall Visual Impression of the Design Patents

2
3

65.

The applications screens of the Samsung Phones address the same design problem

4

addressed by the iPhone Devices and the Design Patents: how to present a set of application icons

5

on a touch screen device. As demonstrated above in Paragraphs 45 through 52, there are

6

numerous alternative ways to achieve that design goal. Also as demonstrated above in

7
8
9
10

Paragraphs 45 through 52, those alternatives need not produce the same overall visual
appearance.
66.

As demonstrated in Sections V.B.1 and V.B.2, the icons in the applications screens

11

displayed by the Samsung Phones use varying graphic styles in a similar fashion as do the icons

12

used by the iPhone Devices and contained in the D’305 and D’334 patents. As with the iPhone

13

Devices, the D’305 patent, and the D’334 patent, the consistent use of rounded, square-shaped

14

icons in a grid layout unifies the icons in producing an overall visual appearance as a group. The

15
16
17
18

result of the similarities demonstrated in Sections V.B.1 and V.B.2 is that that overall visual
appearance is substantially the same as the overall visual appearance of the designs depicted in
the D’305 patent and the D’334 patent. This opinion is unaffected by the fact that the design

19

shown in the D’305 patent has only three rows in the top portion of the screen, as the overall

20

visual appearance of that design is still substantially the same as that of the Samsung Phones,

21

which, in any event, can be configured so that the applications screens only show three rows in

22

the top portion. (E.g., Exhibit 33.)

23
24
25

67.

For the same reasons described above, the applications screens of the Samsung

Phones also have substantially the same visual impression as the design shown in the D’790

26

patent. The overall visual impression of the Samsung Phones’ applications screens is created

27

mostly by the appearance of a variety of icon images presented on a grid of rounded rectangular

28

shapes. Relative to the size of the display screen, the size and spacing of the rounded rectangles
EXPERT REPORT OF SUSAN KARE
Case No. 11 cv-01846-LHK

42

1

in the top portion of the Samsung Phones closely resemble the size and spacing of the rounded

2

rectangles in the D’790 patent. Although the default configuration (which, as noted above, can be

3
4
5
6

modified by the user) of the Samsung Phones has a fourth row in the top portion of the screen,
and the bottom row of icons is not uniformly rectangular like the icons in the top portion, the
overall visual impression is still substantially the same as that shown in the D’790 patent.
4. Overall Visual Impression of Samsung Applications Screens Versus the
Overall Visual Impression of the iPhone Devices

7
8
9
10
11

68.

I have been informed that Apple has asserted trade dress claims concerning the

Samsung Phones. I have also been informed that certain aspects of the iPhone Devices’ interface
graphics are relevant to the asserted trade dress claims, including:
•

12
13

a grid of brightly colored, square icons that have rounded corners having the same
pixel radius;27

14
•

16
17

views additional pages of icons.

19
20

22

a separate area at the bottom of the screen containing four square icons (with the
same rounded corners mentioned above) that remain unchanged when the user

18

21

a row of dots; and

•

15

69.

I have been informed that there are additional factors at issue regarding Apple’s

trade dress claims that do not concern the icons and interface graphics of the iPhone Devices. As

23

explained above, however, I have only been asked to opine on the design of icons and interface

24

graphics and the overall visual impression they create. I have not been asked to evaluate

25

hardware designs or the visual impression they create.

26

70.

As explained in Sections V.B.1 and V.B.2, the applications screens of Samsung

27
28

27

I have been informed that “evenly rounded corners” (the term used in the Amended Complaint (Dkt. 75)) means
corners having the same pixel radius.
EXPERT REPORT OF SUSAN KARE
Case No. 11 cv-01846-LHK

43

1

Phones display a grid of brightly colored, square icons that have rounded corners. Each corner of

2

the square icons appears to have the same pixel radius. Also, each of the Samsung Phones

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

displays a row of dots that indicates which page of the applications screens is currently displayed.
Finally, each of the Samsung Phones has a separate area at the bottom of the screen containing
four icons that do not change when the user views additional pages of icons. The icons in this
area generally have a dominant rectangular shape with rounded corners.
71.

The bottom row of icons in the Samsung Phones does not have uniformly square

icons. However, the similarities between the Samsung Phones and iPhone Devices, discussed
above in Sections V.B.1 and V.B.2, results in the applications screens of the Samsung Phones and
the iPhone Devices producing the same overall visual impression. The similarities are such that
they appear to represent the same general design approach, and users could see the designs as
coming from the same company or source, or representing the same brand.
C.

The Similarities Between the Samsung Phones and the iPhone Devices
Support the Possibility that Samsung Used the iPhone Devices as a Guide in
Designing Icons and User Interface Graphics for the Samsung Phones

72.

I have been informed that the iPhone Devices were released to the public as

16
17
18
19

follows: the iPhone was released on June 29, 2007; the iPhone 3G was released on July 11, 2008;

20

the iPhone 3GS was released on June 19, 2009; and the iPhone 4 was released on June 24, 2010.

21
22
23
24
25

73.

I have been informed that the Vibrant was the earliest of the Samsung Phones to be

released, with a release date of approximately July 2010.
74.

As explained above, there is a wide range of alternatives for the design of the

Samsung Phones’ user interface graphics, including many options for the individual icons,

26

general icon style, and overall appearance of the applications screens. Also as explained above,

27

many design decisions are required in order to arrive at final designs for icons and user interface

28

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

44

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

75.

Given the breadth of options for the design of individual icons and the overall

visual appearance of a graphical interface, I would expect that Apple’s and Samsung’s respective
decisions regarding icon and layout design would result in design identities that vary between the
Samsung Phones and the iPhone Devices. In other words, I would expect that independently
designed user interface graphics would result in screens with different overall appearances, such
as the screens shown in Exhibits 9 through 13.
76.

However, as described above in Section V.B, there are a number of striking

similarities between the applications screen icons and layout of the iPhone Devices and Samsung
Phones. The pattern of similarities supports the possibility that the iPhone Devices’ screen
graphics influenced and served as a guide for the design of the applications screens of Samsung
Phones.
77.

15
16
17
18
19
20
21
22
23
24

1. Samsung Documents Corroborate the Existence of Alternative Icon
Designs

25
26

78.

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

45

1

79.

2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18

80.

19
20
21
22
23
24
25
26
27
28

28

For this document and other documents, I have reviewed certified translations of portions of the document. Those
translations have been included in Apple’s Appendix of Certified Translations in Support of Opening Expert Reports
(“Translations App’x”).
EXPERT REPORT OF SUSAN KARE
Case No. 11 cv-01846-LHK

46

1
2

81.

3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26

82.

27
28

29

I have been informed that “UX” is shorthand for “User Experience.”

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

47

1
2
3
4
5
2. Samsung Documents Support Existence of Alternatives for the Overall
Visual Appearance of its Applications Screens.

6
7

83.

8
9
10
11

84.

12
13
14
15
16
17
18
19

85.

20
21
22
23
24

86.

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

48

1
2
3
4

3. Samsung Documents Are Consistent with the Possibility that Samsung
May Have Used the iPhone as a Guide When Designing the Application
Screens for the Samsung Phones

5
6
7

87.

8
9
10
11
12
13

88.

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

49

1

89.

2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20

90.

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

50

1
2
3
4
5

VI.

CONCLUSION
91.

6

For the reasons set forth above, it is my opinion that the applications screen of

7

each of the Samsung Phones creates the same overall visual impression as the designs shown in

8

the Design Patents. It is also my opinion that the applications screens of each of the Samsung

9

Phones and the iPhone Devices (the appearance of which I have been informed is relevant to

10
11
12
13

Apple’s trade dress claims) create the same overall visual impression. It is also my opinion that
the similarities identified above between the following pairs of icons might cause users to see the
pair as coming from the same company or source, or representing the same brand: Samsung’s

14

Gallery icon and Apple’s Photos icon (U.S. Trademark Registration No. 3,886,200); Samsung’s

15

Phone icon and Apple’s Phone icon (U.S. Trademark Registration No. 3,886,196); and

16

Samsung’s Music/Music Player icon and Apple’s iTunes Eighth Notes + CD icon (U.S.

17

Trademark Registration No. 2,935,038). It is also my opinion that the similarities between

18
19
20
21
22
23
24

Samsung Phones and the iPhone Devices support the possibility that Samsung used Apple’s icon
design and layout as a guide in creating the icon designs and layout of the applications screens of
the Samsung Phones.
VII.

SUPPLEMENTATION
92.

I reserve the right to supplement this report with new information and/or

documents that may be discovered or produced in this case.

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

51

1
2
3
4
5

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
exhibits or things at trial.

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
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52