Apple Inc. v. Samsung Electronics Co. Ltd. et al
Filing
935
Declaration in Support of #934 Administrative Motion to File Under Seal filed bySamsung Electronics America, Inc.(a New York corporation), Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC(a Delaware limited liability company). (Attachments: #1 Exhibit A, #2 Exhibit B, #3 Exhibit C, #4 Exhibit D, #5 Exhibit E, #6 Exhibit F, #7 Exhibit G, #8 Exhibit H, #9 Exhibit I, #10 Exhibit J, #11 Exhibit K, #12 Exhibit L, #13 Exhibit M, #14 Exhibit N, #15 Exhibit O, #16 Exhibit P, #17 Exhibit Q, #18 Exhibit R, #19 Exhibit S, #20 Exhibit T, #21 Exhibit U, #22 Exhibit V, #23 Exhibit W, #24 Exhibit X)(Related document(s) #934 ) (Maroulis, Victoria) (Filed on 5/17/2012)
EXHIBIT I
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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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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
5
6
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
top and bottom portion of the screen. These dots provide an indicator of which “page” of icons is
12
13
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
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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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9
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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
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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
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.
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Figure 7
Sony Xperia arc S
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20
46.
Figure 8
Blackberry Storm 2
Exhibit 9 is a collection of images depicting a variety of visually distinctive,
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alternative approaches to showing a set of icons on a phone screen. As these examples
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demonstrate, user interface graphics for phones need not display icons in a 4 x 4 or 4 x 5 grid, nor
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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
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in Exhibit 10. (See figures 9 and 10, below.)
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EXPERT REPORT OF SUSAN KARE
Case No. 11 cv-01846-LHK
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Figure 9
Figure 10
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47.
Two alternative approaches depicted in Exhibits 11 and 12, applications screens of
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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.
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EXPERT REPORT OF SUSAN KARE
Case No. 11 cv-01846-LHK
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12
13
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15
Figure 11
Blackberry Torch 9850
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48.
17
First, the Blackberry Torch 9850 shown in Figure 11 (see Exhibit 11) has an 800 x
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480, 3.7 inch (diagonal) screen with a pixel density of approximately 253 pixels per inch.12 As
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shown in Figure 11, the applications screen of the Blackberry Torch 9850 shows a grid of up to
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20 icons (four columns, five rows) on a dark background. Other than the presence of a grid of
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icons, most of the graphical features of the applications screen distinguish its appearance from
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that of the iPhone Devices and the Design Patents.
49.
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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,
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12
http://us.blackberry.com/smartphones/blackberry-torch-9850-9860/#!phone-specifications
EXPERT REPORT OF SUSAN KARE
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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
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faded edges when it is “selected” (see figure 11, above), but otherwise it appears along with the
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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,
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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
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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,
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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
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22
an overall visual impression that is clearly different from that of the iPhone and the Design
Patents.
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EXPERT REPORT OF SUSAN KARE
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13
Figure 12
Nokia N9
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51.
15
Second, the Nokia N9 shown in Figure 12 has a 854 x 480, 3.9 inch (diagonal)
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screen.13 (See Exhibit 12.) As shown in Figure 12, this device utilizes icons displayed within
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uniform, extremely rounded rectangles that approach being read as circular. Most of the icon
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images are minimal and symbolic, with few colors and details against a dominant background
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color with a slight gradient. Most of the icon images read as flat symbols, although there are
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subtle, shadowed dimensional effects. There is a fairly limited background color set: green, blue,
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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
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continuous pane, rather than on separate “pages” as on the iPhone Devices, so that a row of icons
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may only partially be on the screen as the user scrolls up or down. Also, unlike the iPhone
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13
http://europe.nokia.com/find-products/devices/nokia-n9/specifications
EXPERT REPORT OF SUSAN KARE
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Devices and the Design Patents, there is no area on the screen for a separate group of omnipresent
2
icons.
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15
Figure 13
“Meizu M8”
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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.
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The dark gray background has a subtle highlight and narrow vertical stripes, and it is darker at the
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edges and corners. It shows sixteen icons in a 4 x 4 grid, each within approximately 80 x 80
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pixels, anti-aliased directly against the background (no rectangular button “containers”) and (with
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the exception of the SMS icon) all rendered in a similar dimensional style with detail and
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highlights. The icons generally show gray, black, and white, and primary colors (red, yellow, and
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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
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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
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off with a thin, dark shadow against the background. At the bottom of the screen, a rounded
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rectangular panel “floats” against the background. It separates three gray gradient, unlabeled
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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
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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
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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.
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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
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amount of stylistic freedom regarding the icons themselves while preserving the overall
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distinctive visual impression of the iPhone Devices.
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Camera. This image15 is a photorealistic view of a generic camera lens as a
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symbol for the Camera application. It suggests a lens built into a physical
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camera (as opposed to an interchangeable lens) and is surrounded by a gray
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metallic gradient, indicating a non-specific camera body. An unseen light
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source creates reflected highlights, contributing to the precise, 3D quality of
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the glass lens, which appears to recede into the button.
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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
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single sunflower matted against a blue sky background as a symbol for the
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Photos application (used for viewing photos on the device). The flower
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evokes a photograph but is an apparently arbitrary choice for a category often
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represented by iconic vacation scenes (e.g., beaches, dogs, or mountain
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landscapes). It symbolizes photos, but it does not suggest a literal
8
representation of a printed photo or typical digital photo aspect ratio. It
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seems to be a generic photograph—without a reference to any particular
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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
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13
or place, and the blue sky both provides contrast against black and is a
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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.
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3,866,200. (Dkt. 75-25.)
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Contacts. This image is a cropped view of a tabbed, spiral-bound notebook.
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The tabs protrude beyond the cover, and the debossed silhouette of a
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person’s head and shoulders appears in the center. It is a combination of a
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realistic or literal object and an idealized view of an object. It is realistic or
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literal in that it is a recognizable physical object, with highlights to indicate
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the metal of the wire binding. It is an idealized view in that the tabs are
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visible beyond the cover, unlike those in most closed address books, and are
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relatively large and few, and the silhouette on the cover is filled with a
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gradient to appear three-dimensional rather than printed. The latter element
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in particular is a curious, non-realistic detail among other more “book-like”
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EXPERT REPORT OF SUSAN KARE
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1
graphic details. The icon is the subject of U.S. Trademark Reg. No.
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3,886,197. (Dkt. 75-28.)
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Phone. This image is a silhouette of a telephone handset resembling those
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from classic Bell telephones designed by Henry Dreyfuss in the 1950s
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(though he designed many similar handsets from 1938-198216). It is a
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“retro” shape that is a nod to the era before cell phones. It is shown at a 45
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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
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filled with a gradient, so the texture becomes very faint as it merges with the
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bright, lighter green in the lower part of the icon. The diagonal stripes are
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approximately 2 pixels across, but they are anti-aliased so their edges blend
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with the background. There is more contrast (darker green texture) in a
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horizontal band across the center of the icon. There is also a pale gray
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gradient on the silhouette, but it reads as a solid color, and there also appears
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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.)
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16
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See http://imprint.printmag.com/animation/saying-goodbye-to-an-old-friend-the-hardwired-attbell-systemwesternelectric-telephone/.
EXPERT REPORT OF SUSAN KARE
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iTunes. This image could be interpreted as an updated, stylized version of
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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
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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.
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85/041,463. (Dkt. 75-29.)
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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.
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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
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a camera body could be shown. The amount of detail shown to indicate a lens
EXPERT REPORT OF SUSAN KARE
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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
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.
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8
9
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11
Figure 15
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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
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25
Figure 16
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27
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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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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
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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
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24
Figure 18
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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
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17
This discussion applies equally to the iTunes Eighth Note and CD icon described below.
EXPERT REPORT OF SUSAN KARE
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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
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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
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1
Continuum
2
Droid Charge
3
Epic 4G
4
Fascinate
5
6
Galaxy S 4G
7
Galaxy S i9000
8
Gem
9
Indulge
10
Infuse 4G
11
12
Mesmerize
13
Galaxy S Showcase (i500)
14
Vibrant
15
16
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
17
18
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
19
27
28
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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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
be the same or substantially the same height. For all but three of the Samsung Phones, the row of
4
status information is a slightly lighter shade of gray against the apparently black background of
5
6
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
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
12
13
14
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
different pages of icons are viewed, and has a gradient to create the appearance of a separate area.
19
The icons in this area generally have a dominant rectangular shape with rounded corners. All of
20
21
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
proportionally, approximately the same size as the icons on the iPhone. On the Droid Charge,
27
Fascinate, Mesmerize, and Galaxy S i9000, the icons are 84 x 84 pixels, which equals 10.5
28
EXPERT REPORT OF SUSAN KARE
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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
is also a row of dots that indicates which “page” of applications icons is currently being
4
displayed.
5
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
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
25
glance, a number of overall similarities between these pairs of icons are evident and—more
26
27
20
28
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
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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
21
28
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
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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
icons share what reads as a brushed aluminum-finish, with the emphasis on a
11
highly detailed, dimensional lens with reflected light, and what appears to be
12
13
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
impression, as they appear “realistic,” particularly when surrounded by other
19
styles of icon images on the respective phones. This analysis applies to the
20
21
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
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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
with ridges and appear to narrow at the tips, like the petals of a sunflower. The
11
whole flower appears in Apple’s icon. The Samsung image is cropped and
12
13
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
Even though the Samsung icon includes round rectangles to suggest picture
19
frames, and a play button, the green of the play button keeps the coloring
20
21
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
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
27
28
flower is not a symbol predominantly or historically associated with photos (e.g.,
EXPERT REPORT OF SUSAN KARE
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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
Samsung
Figure 25
10
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
and iPhone 4 have the slightly different icon shown in U.S. Trademark Reg.
16
No. 3,886,196. All three icons (Samsung’s Phone icon and Apple’s two slightly
17
18
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
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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
shadow) creates a similar amount of contrast. Because of the similarities
4
between these designs, I would expect that users might see them as coming
5
6
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
examined.
12
13
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
the lower half. The Samsung Phone icon is similar; it also shows a pale,
19
retro-style receiver that slants diagonally and faces the upper right. It is
20
21
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
particular because they appear in the same location on the screen. This
27
analysis applies to the Phone icon appearing in each of the Samsung
28
EXPERT REPORT OF SUSAN KARE
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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
22
28
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
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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
Samsung
9
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
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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
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
14
15
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
between the App Store icon and the blue backgrounds appearing in various Samsung icons, such
21
as Skype mobile, Settings, and Talk. (See Exhibits 15 through 31.) For example, the App Store
22
23
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
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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
Devices. The similarities with respect to the patterns and textures in the backgrounds of the
4
iTunes and App Store icons also apply to the D’334 patent, although not with respect to the
5
6
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
Indulge), Navigation (e.g., Epic 4G, Galaxy S i9000). This similarity further contributes to the
12
13
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
clock appears on a black to gray background and has twelve numerals and a second hand.
19
However, the basic commonality of the form factor, plus the distinctive highlight (common to
20
21
many Apple icons), contributes to the similar appearance of these icons:
22
23
24
25
iPhone Clock
Samsung Clock
Figure 29
26
27
26
28
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
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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
Paragraphs 45 through 52, those alternatives need not produce the same overall visual
8
appearance.
9
10
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
result of the similarities demonstrated in Sections V.B.1 and V.B.2 is that that overall visual
16
appearance is substantially the same as the overall visual appearance of the designs depicted in
17
18
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
67.
For the same reasons described above, the applications screens of the Samsung
24
25
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
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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
modified by the user) of the Samsung Phones has a fourth row in the top portion of the screen,
4
and the bottom row of icons is not uniformly rectangular like the icons in the top portion, the
5
6
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
68.
I have been informed that Apple has asserted trade dress claims concerning the
9
10
11
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
a grid of brightly colored, square icons that have rounded corners having the same
13
pixel radius;27
14
a row of dots; and
15
16
a separate area at the bottom of the screen containing four square icons (with the
17
same rounded corners mentioned above) that remain unchanged when the user
18
views additional pages of icons.
19
20
69.
I have been informed that there are additional factors at issue regarding Apple’s
21
22
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
27
28
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
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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
displays a row of dots that indicates which page of the applications screens is currently displayed.
4
Finally, each of the Samsung Phones has a separate area at the bottom of the screen containing
5
6
7
8
9
10
11
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
12
13
14
15
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
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
24
25
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
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1
2
3
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
4
Samsung Phones and the iPhone Devices. In other words, I would expect that independently
5
6
7
8
9
10
11
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
12
13
14
Phones.
77.
I have been asked to opine as to whether my impressions above are consistent with
15
certain documents obtained by Apple from Samsung in this litigation and provided to me. The
16
documents that I have reviewed are consistent with my opinions (1) that there are many
17
alternative designs, both individual and overall, that Samsung could have chosen for the Samsung
18
Phones; (2) that there were many alternatives for the overall visual appearance of the interface
19
graphics for its applications screens; and (3) that the pattern of graphical similarities between the
20
21
applications screens of the Samsung Phones and iPhone devices, as explained in paragraphs 60
22
through 71 above, supports the possibility that Samsung used the iPhone as a guide when
23
designing the Samsung Phones’ applications screens.
24
1. Samsung Documents Corroborate the Existence of Alternative Icon
Designs
25
26
78.
Samsung documents are consistent with my opinion, explained in paragraphs 54
27
through 56 above, that there are many icon design options that do not closely resemble particular
28
iPhone icons or the general style of the iPhone user interface graphics.
EXPERT REPORT OF SUSAN KARE
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1
79.
For example, a document titled “2009 GUI Archetype: Summary” explores a
2
variety of icons for contacts/phonebook and music applications. (SAMNDCA10272033-
3
10272067.28) Although the image quality is poor, certain features can be made out, and higher
4
quality images appear in another document, SAMNDCA10272186-225 at SAMNDCA102722145
6
218 (see Figure 30, below). First, the document displays six different contacts, or phonebook
7
icons, including an open notebook displaying a mobile phone, what may be a business card or
8
stylized “Rolodex” card, and an icon of two stylized head-and-shoulders figures.
9
(SAMNDCA10272056.) The document also depicts various possible music icons, including
10
11
icons depicting isolated musical notes, notes in front of a speaker, and a set of headphones.
(SAMNDCA10272060.) These icons are just a subset of a substantial range of alternative icons
12
13
that are not visually similar to the icons on the iPhone Devices.
14
15
16
17
Figure 30
18
19
80.
As another example, an April 2008 document titled “Competitor Analysis: Design
& Layout” presents a variety of icon designs, including a row of design alternatives for
20
21
“Pictures.” (SAMNDCA00228887-933 at SAMNDCA00228900.) Most feature a folder motif,
22
and none of the other icons for “Pictures” resembles Apple’s sunflower image, and the document
23
notes that Apple’s icon for “Photos” “would be difficult for some users (non-Apple users) to
24
understand immediately.” (SAMNDCA00228905.) That comment is consistent with my opinion
25
that the use of an apparent sunflower for a photographs application is an arbitrary choice among a
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
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1
vast number of alternatives.
2
3
81.
Another example is a November 26, 2007 document titled “Moria,: Advanced UX
Strategy for 2009.”29 It describes a user interface theme, including an “icon archetype.”
4
(SAMNDCA00204884-5031 at 00205008-5018.) Using a camera icon as an example, the
5
6
document shows stylistic options for icon design that are very different from any of the icons
7
used in the iPhone Devices, including the camera. (See Figure 31, below.) The icons shown at
8
pages SAMNDCA00205008 through SAMNDCA00205018 represent many stylistic treatments
9
based on several outlined camera shapes. The iconic images range from flat and simple, to
10
11
debossed, to modeled 3D images. They range from monochromatic to colorful, and some of the
most detailed incorporate patterned textures (e.g., wood grain and floral). These are stylistic
12
13
14
options that do not mirror the styles of icons used on the iPhone Devices or depicted in the D’305
and D’334 patents.
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Figure 31
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82.
Another document (SAMNDCA10202899-983) dated October 23, 2008 appears to
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I have been informed that “UX” is shorthand for “User Experience.”
EXPERT REPORT OF SUSAN KARE
Case No. 11 cv-01846-LHK
47
1
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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.
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8
Dated: March 22, 2012
SUSAN KARE
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sf-3098252
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EXPERT REPORT OF SUSAN KARE
Case No. 11 cv-01846-LHK
52
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
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