"I think it's fair to say this is the most high-profile design case we've ever had and this is really testing the system in these different countries, forcing them to make decisions on difficult issues about design," said Chris Carani, chairman of the American Bar Association's Industrial Designs Committee for 2011-13. He is also a patent attorney at Chicago-based IP law firm McAndrews, Held & Malloy.
The 1871 precedent
In the U.S., Apple must only satisfy a single requirement to prove its claim. This dates back to an 1871 decision in the Gorham v. Company v. White case. To show U.S. courts that a design patent has been abused, Apple must show that:
"If, in the eye of an ordinary observer, giving such attention as a purchaser usually gives, two designs are substantially the same -- if the resemblance is such as to deceive such an observer and sufficient to induce him to purchase one supposing it to be the other -- the one first patented is infringed by the other."
Apple's culture of industrial design, which has won high marks for everything from the original iMac to the Cube to peripherals like the Apple mouse -- has helped the company achieve its high levels of success; purity of design is part of the Apple allure.
The challenge for judges is huge: "Countries will need to grapple with the question of how should scope be declared when you have such limited choices," said Carani.
Given the stripped-down simplicity of Apple product design, Samsung may try to argue that when you have a limited number of design choices, infringement can be avoided by changing the smallest detail. Apple could counter that no one ever claimed a tablet needs to be rectangular, and no one demanded that all tablets have straight edges.
Adding to the difficulty of making all-encompassing rulings on design is a bigger problem; every jurisdiction in which the legal fights are now taking place operates under different rules. It's theoretically possible for Apple to win a specific point in some countries, which could make it hard to take a product and turn it into an icon by ensuring it is consistent.
Why consistency matters
In the U.S. -- the world's biggest consumer electronics market -- Apple and Samsung appear to have been headed for a showdown for years. In 2001, Apple secured just 10 design patents; in 2008, 64. Last year, the company achieved 154 such patents. But Samsung became the "top dog in the U.S. for issued design patents" in 2010, Carani said.