Susan Kare testimony: iPhone vs Galaxy icons, visual impression and personal confusion
It’s another day in the U.S. Apple vs Samsung trial and we have a new interesting testimony to look at, via The Verge which was once again on location. After Phil Shiller and Scott Forstall, both high-ranked Apple executives, took the witness box last week it’s now time to look at a design expert’s testimony regarding the graphic design similarities and differences between iPhone and Galaxy devices.
We’re talking about former Apple employee, Dr. Susan Kare – she was a Macintosh Artist between 1982 and 1986, and since then she worked with various companies including Microsoft and Facebook.
Apple’s counsel brought Kare in to show the similarities between iPhone default app icons and their counterparts found on several Galaxy-branded devices, while Samsung (obviously) tried to show that those similarities are there because of functional reasons.
During the Apple examination of the witness, it was revealed that Kare was brought in by Apple to analyze the similarities and differences between iPhone screen graphics, and their counterparts on Samsung’s competing Android-based smartphones. We have already seen a comparison between Apple and Samsung app icons, which show that Samsung was heavily inspired by Apple design. And Kare pretty much testified that Samsung made certain design choices based on what the iPhone had to offer.
iPhone vs Galaxy app icons
During the testimony, Apple showed various Galaxy-branded or Galaxy-like devices to Kare, asking her to compare certain elements found on them against the same elements on the iPhone. The lists includes the Fascinate, Captivate, Continuum, Droid Charge, Epic 4G, Galaxy S 4G, Gem, Indulge, Infuse 4G, Mesmerize, Galaxy S Showcase and Vibrant.
Kare pointed out that these devices look like the iPhone – she looked at various design elements including icons, dock, sans-serif font, applications grid arrangement, colors, overall visual impression, and more.
Here are some of the most relevant quotes from Kare on the iPhone vs Galaxy app icons matter:
- [Why she was hired by Apple for the trial?] Whether I thought there were viable alternatives for iPhone screen graphics, and whether Samsung copied Apple’s screen graphics.
- What a person thinks of a symbol is at the heart of what I do… I have some practical experience of being out in the world and seeing what I’ve done [but she doesn’t perform research herself on her designs.]
- My conclusion is that this application screen shown on the right is substantially similar to the D’305 patent [referring to a comparison between Apple’s ‘305 patent and the Samsung Fascinate (Verizon Galaxy)].
Visual impression and personal confusion
Kare said during her testimony that application screens from 11 different Samsung phones – mind you, not Home screens, and this is an important detail – are similar to the iPhone 3G’s app grid, which is also found and used on all iPhones to date.
What’s more interesting to point out from her testimony is that she recollected a moment from a meeting with Apple lawyers in which she tried to make a point about the iPhone’s design and ended up picking up a device from a table filled with smartphones that was not the iPhone which she expected to hold, but a turned-on Samsung device.
Here are some of her quotes on these matters:
- I was looking at overall visual impression. I didn’t miss that, I looked at everything. But I concluded that the overall visual impression was substantially the same.
- I was asked to look at the screen, the homescreen of the iPhone. And compare that to a series of application screens on Samsung phones, and give my opinion on whether a consumer would find them confusingly similar.
- It is my opinion that the overall collection of graphic features that makes the overall visual impression could be confusing for a consumer. Partly I base that on my visual analysis. Partly, I remember when I was at the law firm about being a expert witness in this case there was a big conference table with many phones on it… I could see the screen and went to pick up the iPhone to make a point about the UI graphics, and I was holding a Samsung phone. I usually think of myself as someone who is pretty granular about looking at graphics, and I mistook one for the other. So, I guess in addition to my formal analysis I had the experience of being confused.
- I found that the collection of features, graphical features that we just discussed, was present across all of these phones, to create in this set of screens the similar overall look that is confusingly similar to the phones on the left.
- [Comparing Home screens, she] concluded that the visual impression overall of these 11 screens was confusingly similar to just the screen portion… the homescreen, in the illustration on the left.
Apple’s counsel also inquired whether other designs in the smartphone business are possible, and Kare pointed out that it can be done, showing a BlacKBerry Torch design as proof that additional designs for touchscreen-based devices are possible. Here are some quotes:
- [About coming up with “design solutions that serve the same purpose without copying” the same implementation] “[…] come up with a variety of ideas to solve a particular screen design problem. It’s not an exact science. It’s what makes it fun. Think of a problem, and try to solve it… in a better way…. You’re only limited by your imagination.”
- [Talking about the Torch] I looked for screens that had about the same number of things on them that performed approximately the same functionality… to show you could do a design that does not look confusingly similar. In this screen, you can see that just be having the batch of icons not on a consistent shape, it looks different…
- It seemed to me that all of these similarities… from phone to phone… was beyond coincidental… It seemed likely to me that Samsung used iPhone screen graphics as a guide.
Kare also described to the jury internal Samsung documents that revealed design suggestions for the original Galaxy S, directly compared against the iPhone (see below) – Apple wanted to show them to the jury but wasn’t able to do it following an allowed Samsung objection.
As expected, Samsung’s attorneys lead by Charles Verhoeven tried to show that Samsung’s design choices are purely functional, and they are required in order to make a touchscreen-based device work. Verhoeven went into great detail when looking at various design elements with Kare, trying to obtain as many favorable comments as possible on his client’s design choices for some of the smartphones that Apple is targeting with this lawsuit.
There are differences
Verhoeven pointed out that Apple compared the Home screen of the iPhone with the Application screens of the phones in question and that the Home screens of those devices look different than the iPhone’s. He also demonstrated how Samsung Android handsets boot up, an element that should help consumers differentiate Galaxy devices from iPhones.
By going into great detail with icons for various apps including Messages, YouTube, Maps, Stock and others, he also tried to show the jury that the icons of those Samsung devices attacked by Samsung are not exactly identical, something Kare admitted to.
Here are some of Kare’s quotes, paired with some of Verhoeven’s questions in some instances:
- Verhoeven: “Would you agree that by the time the consumer takes all those steps [boot, Home screen] to get to the applications screen they’d know it’s a Samsung phone?”
- Kare: I can’t agree because I haven’t — I don’t know about consumer behavior, starting.. .about the question you’re asking me. It’s outside my focus.”
- Verhoeven: Green means go, doesn’t it? Apple doesn’t own the color green, does it?
- Kare: I’ve seen all kinds of icons for all kinds of phones.
- Verhoeven: [About apps] Being arranged in alphabetical order is kinda useful, isn’t it?”
- Kare: […]screen elements, tends to depend on how many you’re talking about, and how they’re displayed. So I wouldn’t categorically say alphabetically is categorically better than non-alphebetical.
- [Whether Apple choices are related to functional requirements] “It’s fair to say,” Kare says, “if it’s a touchscreen and you’re using your finger and not a stylus there’s some consideration” as to spacing and placement of icons on the screen.
- [Whether she considered functionality in her evaluation report] Because I was asked about the overal visual impression, to the extent that the overall visual impression includes, you know, about 20 things, I assumed from that the you need to have an affordance to make 20 things happen. But I didn’t really consider the mechanics. It was much more focused on how things look.
Verhoeven also tried to remind Kare that she testified in her deposition that triangle-shaped icons would not work on smartphones, although she said that she would change her answer if asked the same question again.
$550 / hour, around $80,000 total
Kare also acknowledged during her testimony that she is being paid by Apple $550 per hour for the work she does for the company during this trial, and that she got so far around $80,000 for her contribution.
Following Samsung’s cross-examination of the witness, Apple came back to ask more design-related questions, highlighting certain design changes Samsung made to the original icons found on the original Galaxy S:
Apple is comparing the internal icon review document for the GT-i9000 with the shipping icon layout on the Fascinate. A green alarm clock became a clock face which Kare says “looks a lot” like Apple’s clock icon. The phone icon went from an numeric keypad to a green, old-fashioned handset — again, much more similar to the iPhone’s icon.
Samsung argued that changes were made to avoid confusion of a Galaxy S users when dealing with the icons found on the device, including the Message and Email icons, but Apple was quick to point out, via Kare, that Samsung changed the Message icon to show “’a speed bubble’ […] in the color green. Just like Apple’s SMS icon.”
With that, we close Kare’s testimony, but we’ll be back in the following days with more details on this Apple vs Samsung U.S. adventure.