May 31 (Bloomberg) -- Apple Inc.'s claim that Samsung Electronics Co. copied the design of the iPhone may hinge on what a U.S. trade judge today described as the "Cheech and Chong test."
"Does it look like it, feel like it, smell like it?" U.S. International Trade Commission Judge Thomas Pender said at the beginning of Apple's patent-infringement trial against Samsung, referring to a routine in which the comedy duo identified dog feces.
Apple contends Samsung's phones and Galaxy Tab tablet computer copy designs on the look and front face of the iPhone, and they also infringe patents related to the user interface and headset plugs. The Cupertino, California-based iPhone maker is asking the ITC to block imports of Samsung products that violate Apple's patent rights.
"Not content to copy the overall design and interface, Samsung has copied the smallest detail of the iPhone," Apple lawyer Harold McElhinny of Morrison & Foerster told the judge in opening arguments today in Washington. "Samsung copied our original and iconic design."
Samsung is Apple's biggest adversary in the iPhone maker's challenge to the growth of devices that run on Google Inc.'s Android operating system. Together, Samsung and Apple made more than 49 percent of all smartphones sold worldwide in the first quarter, with Samsung edging out Apple in that period for the title of world's biggest manufacturer of the devices, research analyst Gartner Inc. said May 16.
Jobs' Warning
When the late Apple founder Steve Jobs unveiled the iPhone in 2007, he warned rivals that it was protected by more than 200 patents, McElhinny said. Apple's inventions have been displayed in museum shows and even been the subject of a book, he said.
"Samsung cannot overcome the originality of Apple's design," McElhinny said.
Samsung, which has its own patent-infringement claims against Apple that are scheduled to come to another trial at the trade agency next week, contends it came up with its own ideas and designs through decades and more than $3.5 billion spent on research.
"Samsung has been in this industry, building and innovating to the point where Apple could enter the market," Samsung lawyer Charles Verhoeven of Quinn Emanuel told the judge. "We are anything but an also-ran trying to copy Apple's technology."
The rectangular shape with a wide touchscreen was just one of many designs developed by Samsung and other smartphone makers before the iPhone, he said.
"Samsung is also known for its designs," Verhoeven said. "We've been recognized worldwide and compared favorably" to Apple.
Seeking Break
Pender is scheduled to hear testimony through June 6 and release his findings Oct. 5. ITC Judge James Gildea, who is scheduled to hear Samsung's case beginning June 4 through June 15, is expected to release his determination on Sept. 14. Apple's infringement claims against Samsung over other patents is set for a July trial in federal court in San Jose, California.
Meetings over the past two years, most recently ones involving Apple Chief Executive Officer Tim Cook and Samsung CEO Choi Gee Sung, have failed to resolve a standoff that spans 10 countries on four continents. Each side is looking in court for some break, such as an order blocking the rival's products from the U.S., that would give them an advantage in settlement talks.
"This about brinkmanship and bargaining position," said Rodney Sweetland, a patent lawyer with Duane Morris in Washington who specializes in ITC cases. "They both have too much to lose and too much to gain to not make a settlement."
First Trial
Apple's claim against Suwon, South Korea-based involves six patents including ones covering inventions related to touch- screen devices, headset detection and the look and shape of the iPhone. Apple is seeking to block imports of Samsung's Galaxy Tab tablet computer and phones including the Nexus, Captivate, Indulge, Infuse and Sidekick.
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