SAN JOSE, CALIFORNIA—Apple swore in a former employee to make its case today: legendary icon designer Susan Kare, who testified that in her opinion, Samsung's screens and icons were illegal knockoffs of Apple designs.
Rachel Krevans, an Apple lawyer, walked Kare through screen after screen comparing Apple's D'305 patent—which shows a screen with icons like those on the iPhone—with various Samsung phones, including the Epic 4G, the Fascinate, and the Droid Charge. One after another, Kare testified that the Samsung icons and screens infringe Apple's design patent and its "trade dress," or the overall look of the phone.
Kare worked at Apple in the early 1980s and designed some of the early Macintosh icons, which have become legendary user interface graphics. Since 1986, Kare has run her own firm, where she has done design work for other big tech companies like Microsoft and Autodesk, but none for Apple.
Now, Apple has hired its former employee to study its competitors' phones and testify as an expert witness. Kare's conclusion was unsurprising: she found that the icon styles—like the clock and the green phone icons on the Fascinate, are "substantially similar" to Apple's D'305 icons, and thus the iPhone. She also said that the too-similar graphics could confuse consumers—and told a story about how that happened to her.
"When I visited the law firm to see about being an expert witness in this case, a number of [phones] were on a table," Kare said. "I reached for an iPhone because I could see the screen, to make a point about the user interface, the graphics—and I was holding a Samsung phone. I usually think of myself as someone who's pretty granular in looking at graphics, and I mistook one for the other."
Before ending her direct testimony, Kare spoke about a slide that "just by having the batch of icons not being a consistent shape, it looks different. There's more background."
"Apple doesn't own 'green for go,' does it?"
On cross-examination, Samsung lawyer Charles Verhoeven followed a pattern he established yesterday—through his questioning, he drew out the many small differences between the phones that do exist between the iPhone and the accused phones.
He focused on the Fascinate, starting with what happens when the consumer turns it on. Verhoeven turned on an actual phone, magnified by an overhead projector. The consumer has to slide it on, go through a startup screen, and click on an "apps" button in the lower-right corner before even seeing the Samsung screen that is said to infringe on Apple's designs.
"Wouldn't you agree by the time the consumer goes through all those steps to get to the application screen, that consumer knows this is a Samsung phone?" asked Verhoeven.
"I was only asked to consider this application screen, compared to the Apple home screen," said Kare.
Verhoeven responded, "That wasn't my question. Wouldn't you agree that [at this point] the consumer knows this is a Samsung phone?"
Kare: "I'm not an expert in consumer behavior, and that kind of consumer experience. I'm really focused on graphic user interface, so I don't know that I'm qualified to agree with you."
Verhoeven: "Qualified or not, would you agree?"
Kare: "I just can't speak to that, because I don't know. I haven't studied startup experience. I know this is the application screen, not the home screen."
Then Verhoeven drew out differences in the icons between the D'305 patent (similar to the iPhone) and the Fascinate. Just about all the icons other than the two Apple pointed to—the green telephone and the clock—looked different. The messaging icon, Verhoeven got Kare to acknowledge, isn't quite a rounded rectangle. He pointed out the different Calendar icon. The Stocks icon and the Maps icon weren't on the Fascinate's screen at all.
As for the green telephone: "Apple doesn't own 'green for go,' does it?" asked Verhoeven. No, said Kare.
"You've seen dozens of icons that have green with telephone receivers on them in the past, haven't you?" he asked.
"When I was looking at this design, I specifically looked at that [Samsung] incarnation of a phone icon," answered Kare.
For his last question, Verhoeven asked Kare how much she's getting paid as an expert. Her answer: $550 an hour. Kare said she's been paid "about $80,000" for her work on Apple v. Samsung so far.
Kare finished up her testimony just before 2pm. Russell Winer, a marketing expert who is going to talk about Apple's trademark and trade dress, was set to take the stand after her.
Apple's damages demand grows to $2.88 billion
Apple's lawyers submitted an updated damages report late last night, presenting four scenarios in which they ask for as much as $2.88 billion in damages, up from the $2.5 billion they asked for a week ago.
In the larger scenarios, Apple collects damages for Samsung profits that Apple believes should be forfeited because of infringement, as well as damages for Apple's "lost profits"—a more speculative form of damages that assumes some Samsung sales would have gone to Apple.
The damages report (PDF) breaks out how much money Apple believes it is owed for particular Samsung products as well. Only about $80 million of the damages total is connected to Samsung's tablet products, even in the highest-damage Apple analysis.
Apple wants the most money for the Epic 4G phone, which it believes caused $388 million in infringement damages. Other top phones on the damages list include the Epic 4G ($388 million), the Fascinate ($287 million), and the Captivate ($285 million).
If Apple wins a damages number close to any of its four damage scenarios, the Apple v. Samsung verdict would be the largest patent verdict ever. Apple is also asking for injunctions that could kick Samsung products off the market.
Samsung will surely present much lower damage numbers when the company is able to make its defense case next week, while it argues that it doesn't infringe the patents at all. Samsung will also counterclaim with patents of its own that it believes Apple must pay for.
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