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, it secured 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.
But because U.S. design patent protection demands only that items look "substantially" the same in the "eyes of a preliminary observer," Apple's best shot at winning the fight may be there. That may be what prompted Samsung to offer Apple a secret deal under which it would strip features from its Galaxy Tab in Australia. (These were technical features, not design-related.) Terms of the deal have not been revealed, and Apple has since rejected that overture.
The Korean firm had already begun to remove features from its tablet. (The original Apple filing noted 13 such patents; that number is now down to just three.)
The technical war
The Korean firm has plenty of its own intellectual property with which to fight back. In the Netherlands, Samsung says Apple is using some of its own UMTS technical patents without permission, telling the Dutch court, "Apple is consciously, structurally infringing the 3G patents."
Apple's response? To assert that these patents are for widely-deployed technologies. It argues that Samsung is demanding an "excessive" (2.4 percent) royalty on 3G chips used in Apple devices, and says it is "abusively" asserting UMTS patents to get away with "illicit" copying.
Because licensing talks are ongoing, an injunction on this basis is unlikely. The Dutch judge is expected to declare whether Samsung has a case on Oct. 14. Ironically, that's also the date on which the new iPhone 4S, unveiled this week, actually goes on sale.