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Inspiration Vs Copying: Are Design Patents Stifling Innovation? Pt.2

Eric McBride
23

Yesterday I reported on a new computer that HP released called the Spectre One, and after looking at a few photos of the PC, it was quite easy to see that HP took their “inspiration” from Apple’s iMac when designing it. In this case, I felt that it was a very bold move by HP, and I could certainly understand Apple if they were to file a willful design infringement suit over this particular product. But after seeing a comment on the article from an AndroidPIT user named Dvoraak, it got me thinking about exactly how and when the process of taking inspiration from a product's design transcends into copying a product. My question is, how exactly do you draw a line between inspiration and copying when it comes to product design? Part 1 discussed how companies constantly improve the products of others. This article will discuss the influence that patents have on the entire process. 

(Part 1 of the article can be viewed here)

Can designs be realistically patented?

Design patent (US): a patent granted on the ornamental design of a functional item. Design patents are a type of industrial design right. Ornamental designs of jewelry, furniture, beverage containers and computer icons are examples of objects that are covered by design patents.

Here is a picture of a design patent for the original Coca-Cola bottle:

Wikipedia states that “The exclusive right granted to a patentee in most countries is the right to prevent others from making, using, selling, or distributing the patented invention without permission”.

Now I know for a fact that Coca Cola isn’t the only company in the world that uses that bottle design. Pepsi, Cokes biggest competitor, uses damn near the same bottle design for their product, yet design patent law says that the patented design can’t be used by anyone else for 14 years unless licensed. So did Pepsi steal from Coca Cola, or were they inspired by Coca Cola? Did they ask Coca Cola permission to use this design?

According to my research, they actually didn’t. They took the Coke bottle design, made design tweaks to it, and then released it as their own product. Apple did the same with the Macbook and the iPhone. Samsung did the same with the Galaxy S3 and Galaxy Tab 10.1. BMW did the same with Mercedes. This is the way it has always been, and is the way that it will/should always be in the future. But if companies can take an existing design patent, make minimal tweaks to it, and then release it as their own product, what good does the patent actually do?

Patents: A great idea, the cause of the problem, or not properly implemented?

If I INVENT the housing for a computer, shouldn’t I have the right to the design for it? If I spent years of work creating the design to house the hardware and technology inside a computer in order to make it consumer friendly, should I not be credited for that? What happens if Mr Bob comes around and makes my original computer design even better and more efficient than the original design I created? Should he have the right to patent a design that’s clearly based on my original patent? This is where it gets damn complicated, and in some cases, very expensive.

According to Thoughts To Paper, “a design patent gives you the right to protect the “ornamental design of a functional item” for 14 years. They allow you protect an items look, form, and structure, and prevent others from manufacturing or importing that design unless you sell or license those patent rights. A few examples of design patent categories include jewelry, clothing, furniture, a beverage container, or even a computer icon”.

Keep in mind that this doesn’t include functionality. If you created a modern looking phone, you created the look of the phone, not the phone itself. This is not only important to remember, but is something that makes the entire process that much more complicated.

That being said, you can patent an existing product design as long as the improvement is 1. novel and 2. non obvious. It’s also very important to consider that a design patent can be invalidated if the design has practical utility (ie..the shape of a gear). In my opinion, those last 2 sentences are the basis for why design patents have come into play so much recently. They are the “grey zone” that companies like Apple choose to attack from, and sadly for Android, they seem to get away with it.

But why? I believe that popularity and marketing play a bigger role than many think.

The Grey Zone

Apple is in a unique position to widen this “grey zone” due to the popularity of their products. In terms of actually inventing a product, they have done very little work. However, when it comes to designs, they’ve hit it out of the park. What they have also done remarkably well is to popularize their designs. They’ve done this so well in fact, that many consumers who see a rectangular shaped phone or tablet from any Android OEM will automatically label it as an Apple clone, all while ignoring the fact that Apple has been doing the very same thing for many years.

Even the courts can’t make up their mind how they feel about Apple’s claims. In Germany, the Galaxy Tab 10.1 was banned due to the fact that it “looks too much like an iPad”. In the UK however, the case was thrown out. If the judges who dictate what design infringement actually is can’t make up their minds, what is the point in having the system? Some judges say that Apple’s iPad design makes Samsung’s tablet an illegal product, while others state that the changes are enough to make it unique.

So help me out Mr patent system....which one is it?

Conclusion

I’m not a patent expert, and I will never claim to be. I’m just a simple blogger that loves technology, and who is quite frankly fed up with companies suing over designs that the law has deemed as industry standards, all while using loopholes and grey zones to expose that system. I don’t know how exactly the patent system should be fixed, or even it its possible for that matter. All I do know is that companies that have used other products as inspiration for years shouldn’t be allowed to punish other companies for doing the same.

If successful companies that employ such methods are allowed to continue, not only do they stifle innovation, they in essence create something that is looked down upon in the technology world: a monopoly. If companies lose the right to be inspired and improve existing technology, the world would not only be a pretty boring place to live, but would completely invalidate the patent system as a whole.

I personally feel that if company X creates a great TV, that company Y has every right in the world to create a better version of that TV. That’s what has always moved technology forward. Copying a product too closely will simply make your product look uninspired, which instantly labels a business as unoriginal (that means you HP. Copying a product 95 percent and then adding 5 percent of your own "innovation" is simply RIDICULOUS). Stealing a product is illegal...plain and simple. Being inspired by a product and making it better, however, is what humankind has done since the beginning of our existence, and I very much hope that companies get back to “making a better TV” vs accusing everyone else of stealing the one they came up with.

Information sources: Wikipedia, thoughtstopaper.com

Picture credits: Wikipedia and inventionmachine.com

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Comments

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  • Mark R. Sep 12, 2012 Link

    good points very well made...totally agree. I remember the old Casio & Palm PDAs of the early 2000s...rectangular, flat devices with curved edges...OK they weren't black but I'm sure they inspired what we call smart phones today...

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  • Apple Conspiracy Sep 12, 2012 Link

    I have registered on your site just to give you a comment on this interesting subject. Very nice article, you gave your best in trying to understand the fundamental problems emerging from design patent law, which is actually different than classic patent law that involves technical invention.

    In my opinion, the problem is even more fundamental and it concerns impossibility for protecting that which is not protectable - ideas.
    Ideas should be available to anyone as they are impossible to steal. Stealing idea is not like stealing a car - when you steal a car, it dissapears. If it was like stealing ideas, then the car would still be there.

    But...

    we now live in a world of economy based on tertiary production. The values are now projected on non-material entities, like services or ideas. Ideas make money. Of course, they need physical implementation of some sort, but implementation is not what makes a value. So, it is undniable that when someone takes your idea and implement it to gain profits you should be having, then you are damaged by it.

    So, the system tried to make something that cannot be stealed - "stealable".

    It's patent law. However the are fundamentally flawed because you cannot quantify the idea, so they take some absurd measures.

    All I want to say is that this Apple vs. Everythin Else disputes had opened some very difficult problems that are unsolveable from withing this system. It will certainly now be constantly questioned, but I don't expect solution will emerge any time soon.

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  • Eric McBride Sep 12, 2012 Link

    @Mark - Thank you very much! Im glad you enjoyed it!

    And yes, what you said about PDAs is exactly what I was getting at. Those inventions inspired ALOT of what we see today, yet they are seldom credited.

    @Apple Conspiracy - I really appreciate you registering just to comment the article! Welcome!

    The points you made clearly show that you have the knowledge on this subject that I sincerely wish I had! It took me writing a 2 part article to project what you summed up in a few sentences, and I very much wish I had written more about the idea and profit aspects that you mentioned. They both play very critical roles in the entire process, and as you said, the current patent system simply can't quantify the ideas This is what leads to confusion, lawsuits, and some downright silly behavior.

    Very nicely put!

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  • Dvoraak Sep 12, 2012 Link

    All of this in the blog and in the comments is why Apple shouldn't have opened this can'o'worms. You may or may not muscle your way through the grey areas, all the while throwing public perception of you up in the air, but cell phones are mostly built on tech that doesn't fall into grey areas at all. You better make damned sure your wireless technology is patent proof before you start bullying everyone else. It's hard to be patent proof when everyone else owns most of the technology involved.

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  • Apple Conspiracy Sep 12, 2012 Link

    Dvoraak...

    it's not about technology itself, but design. It's very different to patent design and patent technology.

    For design, there are lots of gray areas. LOTS.

    They are solvable though, however it needs higher-level thinking which cannot be quantified and therefore not implementable in laws and regulations.

    The only solution is to use common sense logic of educated and versed human subjects within some legal dispute, because only they can provide the truth as truth of appearance is based on *structure*, not elements. Structure cannot be quantified because it serves as quantifiying agent itself. So, design cannot ever be put in some kind of pattern of rules.

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  • Dvoraak Sep 12, 2012 Link

    I'm not doubting you Apple Conspiracy. I'm just saying you're making my head hurt.

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  • Eric McBride Sep 12, 2012 Link

    @Dvoraak - Thanks again for giving me the ideas for these articles! And yes..maybe Apple will learn the lesson if Sammy HTC slap them with LTE :-)

    @Apple Conspiracy - May I ask what your background is? You have quite a way with words!

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  • Dvoraak Sep 12, 2012 Link

    It's nice to have been useful for a change Eric. Thanks for the recognition :)

    It occurs to me that there must be something worthwhile in design and tech patents or HTC wouldn't have bought the LTE patents that it's about to beat Apple up with and I think it's still widely acknowledged that Google's acquisition of Moto was spurred by it's thirst for that huge patent portfolio.

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  • Apple Conspiracy Sep 12, 2012 Link

    @ Eric
    I'm not from english speaking country, I'm from Eastern Europe. I'm MA in industrial design and currently writing PHD thesis on philosophy of aesthetics. I also write as a columnist on one of our tech blogs. So forgive me if my language is somewhat "academic", I don't know the other way round.

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  • Eric McBride Sep 12, 2012 Link

    @Dvoraak - Don't underestimate yourself bro. You are a real credit to our community, and I hope you stay around for a long time!

    And yeah man...they are definitely valuable...crazy that companies pay billions for patents!

    @Apple Conspiracy - Please don't apologize! Your knowledge of the subject is impressive, and what you say makes perfect sense. May I ask which tech blog you write for?

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  • Dvoraak Sep 12, 2012 Link

    @Eric - Awww thanks. Now I'm gonna have to hit random strangers up for hugs :)

    @Apple Conspiracy - Nothing wrong with academia. The subject matter was too much for a 12 man jury to handle. It probably doesn't matter how you phrase such complicated ideas. It's simply over a layman's head. WAY over.

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  • Apple Conspiracy Sep 13, 2012 Link

    @ Eric

    I'm under a pseudonym right now and if that's OK I would stay that way because I'm somewhat paranoid of giving my real identity and location on Internet.

    Besides, although blog is one of the strongest in my country, it's still local and I presume you wouldn't gain much since it's not in english. However if you are still interested, you can contact me personaly on my email which I believe you have access to.

    @ Dvoraak

    Actually it all goes under legal system - the jury is always comprised of people uneducated on the subject matter and I think this is the only righteous thing to do. Everyone are equal before the law because they cannot count on they interests before the jury, they all depend upon their decision based on how well did they argumented them the case from the scratch.
    The jury in this particular case made a good call after all - but as I said - this problem of system that is protecting something that is not protectable should be adressed in detail as soon as possible.

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  • Patrick R. Sep 13, 2012 Link

    Very good article Eric. This explains why I have always believed that it is/was wrong to place a patent claim in the hands of a jury. You did a good job condensing the issues to be threshed out in a patent claim in two articles. I am sure, you realize that you just scratched the surface with this and it gets more complex as it goes along. This is a highly technical field of law.

    As can be gleaned from your article, patents have generally 2 fields, a tech or invention patent and a trademark or trade dress patent. The first, protects an inventor from unauthorized use of his invention and allows him to reap the benefits exclusively for a few years and in exchange, he discloses his invention and its details which becomes public domain afrer the patent expires. This is the reason why the Coca Cola formula is not patented, only the bottle. Same with the KFC recipe.

    The second protects a manufacturer from another party who copies their products with the intent of passing it off as the original (think cheap knock offs or fakes) or to create confusion ong consumers.

    Another very relevant and overlooked fact is that a lot of countries do not (i repeat NOT) grant patents for software. What is protected, say in Windows is the product itself, not the code used to arrive at the product.

    Guess what kind of patent apple used in the US case vs. Samsung?

    I'll continue this post in a while. Gotta take care of some stuff first.

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  • Joshua Dapitan Sep 13, 2012 Link

    I wonder
    Did the one who made the bubble sort algorithm sued the one who made heap sort algorithm?
    They output same results, yet the processing technique is the same

    So should be with TECHNOLOGICAL PATENTS!

    So Apple, Ready to compare iOS6 to Android 4.1
    SHOW YOUR SOURCE CODES NOW!
    No problem for android since it has released its source code since its Open-Source
    But the Question is How about Apple's?

    Maybe that won't even be effective, they might even claim that loops,conditions, functions and arrays are theirs.

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  • Patrick R. Sep 13, 2012 Link

    @Joshua, yup, that is why patents are generally not granted to software. Good example between bubble and heap sort. Different methods same output.

    To continue on trade dress patents.

    So Apple came on to Samsung with trade dress patents. Slide to unlock, icons, overscroll bounce, rectangle with rounded corners etc. The question is, granting Samsung blatantly copied the iPhone with the Samsung Galaxy S (this point is very arguable) the first and foremost question is are Apple's patents valid - take note, prior art is ground to invalidate a patent. Second did they create an product confusing enough to consumers that people who wanted to buy an iPhone, purchased an SGS by mistake? Were they THAT confusingly similar? Lastly, in case Apple's patents were in fact infringed, what is the extent of the damage in terms of lost sales? AND to merit a ban, will the situation continue in the future?

    Those are the basic questions a judge, arbiter or jury should answer in a hearing or trial.

    Now, I have always felt that the jury system is fine for deciding civil, contract, torts, commercial and criminal law cases. But for something as highly technical as patent law, where the witnesses would likely be engineers, scientists, etc. with multiple letters (ms, phds etc) appended to their names, a lot of the testimony and pieces of evidence will simply fly by their heads.

    Then comes the most important part, weighing the evidence presented against the required quantum of proof.

    Again, will post the continuation later. Sorry typing this on my SGNote.

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  • Patrick R. Sep 13, 2012 Link

    When all the evidence has been presented, the judge or jury or arbiter must then consider it against the reuired quantum of proof. This is ranked by courts as decisions based on:
    Substantial Evidence - for administrative cases, decision can be supported by the evidence presented regardless regardless of the evidence against it.
    Preponderant Evidence - for civil, contract, and commercial law cases. Evidence of one party is weighed against the other.
    Clear and Convincing Evidence - patent decisions may fall under this or preponderant evid, depending on the jurisdiction.
    Proof beyond reasonable doubt - required for a criminal conviction, moral certainty based on evidence that the accused is guilty.

    Generally, to find for a complainant in an infringement case, clear and convincing evidence is required. And in a highly technical patent case, the jury is or may be ill equipped to properly appreciate evidence and weigh it against the required quantum of proof. In some jurisdictions, a patent claim is first heard on an administrative level for the proper appreciation of evidence by a technical board and afterwards the appeal is elevated to the courts.

    Now, after seeing where the weaknesses of the systems are, is it a wonder that of all the cases filed by apple against samsung, the only court they won in was the US? The patent system is supposed to spur innovation and invention. It protects the rights of those who invested the work, blood, sweat and tears to invent and produce, to make sure they reap the benefits of their work. However, the system is not perfect and obviously, like anything and everything, it can be manipulated and subverted to stifle the very thing it aims to protect.

    Sorry for the long posts, I just want people to have a better understanding of how it generally works.

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  • Apple Conspiracy Sep 13, 2012 Link

    @ Patrick

    Thank you for extensive elaboration of the legal protocols.

    I hate disclaimers, but since I'm on Android-dedicated site, I must say that I'm i no way inclined to Apple. My project is, after all, dedicated to true understanding of Apple as a new form of religion.

    In this particular case, however, I strongly believe Apple was right. I'm only loyal to truth, and since I'm investigating the nature of design and intelectual properties, I will be on the side of that truth without personal identification and solidarization.

    I will not going to analyze the legitimacy of protocols and procedures under this dispute, but focus on design issues only, the sole subject matter of the dispute.

    The thing is that we have all become blind to the obvious - we were cheering for one of the confronted sides like we are cheering in the football game, without actually knowing what to really look and evaluate.
    Since I'm an product designer by profession, I know very well that most people are blind to obvious visual solutions. It's not because there's something wrong with their eyes, but because they don't know what to look and how to look. And "political" and ideological background made this even more difficult, clouding the judgment with suggestive elements. We have seen the power of ideological suggestion when we saw Apple fans not able to see the obvious lies in Apple's propaganda. Some examples are so extreme that we could almost say that they are litteraly blind.

    But back to the problem itself. The simple fact is that Samsung shamelessly copied Apple's design solutions. And the ultimate trap is that we cannot get to that conclusion by analyzing it on patent level. We would so want to be able reduce all the visual descriptions to easily quantifiable and measurable parameters and specifications. But it doesn't function that way.
    It functions as a bigger story, a whole, a structure. It's inherent logic is not reducable to atomized parameters. That's also the reason why design patent law is fundamentally flawed. Because law must function on something that is strictly quantifiable. Anything that doesn't fit in the deterministic pattern of possible descriptions, is not taken as an argument.
    When you try to analyze if some painting is a copy, you cannot do that by measurnig the lines, strokes, dots, and angles. You ned to see it immanently - that enough of the STRUCTURE itself is recognizable and unmistakenly drawn from the original.

    So, the problem with Samsung was that it was undeniably a rip-off of Apple's structural visual logic of iPhone. When I say structural, I mean the sum of all relations that makes resemblance.

    It's not about the visible details itself. Many argue and even ridicule the fact that it was all so stupid and absurd as trying to prove that something GENERIC was taken, like rounded rectangle. But, this is very naive. It was never about rectangles and icons themselves, but the sum of their relations, their structure - from general shape, logic of composition to many other details - everything was obvious from the day one.
    But, since our society is not visual anymore (it's called contemporary iconoclasm in theory of aesthetics), but transvisual - we don't know what we actually see. We are so blinded by atomized "facts" and "evidences", obsessively looking for them just to legitimize our personal preference to some symbol (be that Apple or Samsung) that we actually don't see the obvious anymore.

    However, I was suprised. I was suprised that jury acted like - normal, unbiased humans. You see, everyone sees them as biased. But I don't. I think they were the best example of common sense logic in many years. They knew from the very beginnig that Samsung copied Apple. We actually all knew it. But that's not the most convenient for those who cheers for the loosing team. And now we can't let it go - we constantly question the procedures and methodologies, like the game was stolen by judges, not fairly won.

    I wish that we could all just let it go. We must accept that Samsung was stealing from Apple. They are not stealing from them now, but they did two years ago.

    Design patent law is uncapable of handling this, but I'm glad that the jury used their brains and didn't rely so much on pointless procedures. I bet Samsung lawyers counted on those procedures to get away with it.

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  • Dvoraak Sep 13, 2012 Link

    @Apple Conspiracy -
    "It's not about the visible details itself. Many argue and even ridicule the fact that it was all so stupid and absurd as trying to prove that something GENERIC was taken, like rounded rectangle. But, this is very naive. It was never about rectangles and icons themselves, but the sum of their relations, their structure - from general shape, logic of composition to many other details - everything was obvious from the day one."

    Thank you. Pretty sure that's what I've been saying about the suit. It wasn't about rectangles but about the pattern that represented the whole. Apple wasn't wrong but the action will probably prove to be ill-advised.

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  • Patrick R. Sep 14, 2012 Link

    You two make very good points. In fact I inadvertedly failed to post something relevant due to a loss of internet connection, I failed to see it did not get posted. Anyway,

    The courts will generally apply two tests to determine trademark or cppyright infingement amd these are the dominant or holistic test. Case law defined it as follows:

    "There are two tests to determine likelihood of confusion: the dominancy test and holistic test. The dominancy test focuses on the similarity of the main, prevalent or essential features of the competing trademarks that might cause confusion. Infringement takes place when the competing trademark contains the essential features of another. Imitation or an effort to imitate is unnecessary. The question is whether the use of the marks is likely to cause confusion or deceive purchasers.

    The holistic test considers the entirety of the marks, including labels and packaging, in determining confusing similarity. The focus is not only on the predominant words but also on the other features appearing on the labels."

    Now, from that definition, intent or an attempt to imitate is not even a requisite, it is sufficient that the design will cause confusion between two products in the minds of the consumer.

    This I think is a more powerful tool to keep infringement in check and protect the rights of people from blatant imitation. Although it also means that a party can copy some elments but he has to make substantial improvements or changes on the product to avoid confusion.

    Now, my opinion on the Apple and Samsung case is based on these principles. Did Samsung take some elements from apple? Yes. The icons alone are damning. Slide to unlock? Maybe, but it must be noted that TW allows any direction swiping to unlock as opposed to the iOS single direction bar. etc. Did they make enough changes to avoid infringement? In my honest opinion, they did. I do not think, people would generally mistake an iOS device with a Samsung product. Again, I said generally, there obviously exceptions.

    Lastly, there is a legal concept called pari delicto rule. Meaning, since parties are equally at fault, they cannot come to court for redress. Apple is at fault for taking some elements in their phones from others - generally, the same patents they waved at Samsung's face. In fact, the best ruling made in my opinion is the South Korean court that found both guilty, assessed damages for both sides and banned multiple devices from both sides.

    My final point is, Samsung may have copied Apple, Apple may have taken some things from others. But based on these concepts of law and the evidence presented in court, i do not think samsung should have been found to infringe apple's trade dress patents. Although, morally or ethically should samsung have done what it did? That is a different question.

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  • Apple Conspiracy Sep 14, 2012 Link

    @ Patrick

    I would like to give a small but important remark to the issue of confusing customers.

    I don't think that was ever the issue: customers weren't confused. It's obvious to anyone that they are buying Samsung, not Apple.
    This is also the argument that is used to prove Samsung has made enough distinction to make itself innocent in the course of dispute.

    But it's a weak argument. It was never a question of confusion by perception, but ignorance on higher level.

    In other words, customers were happy to find an Android phone that was better than iPhone. For direct comparison and evaluation in their heads, similiarity that was made by copying design on the surface was essential - it subcounciously told them "those are two iPhones, but Samsung's one is better, because it isn't iPhone but Android".

    iPhone's iconic design is the strongest psychological influence on fundamental visual paradigm of mobile industry and even wider than that. Only by having associated itself directly with this iconic design Samsung was able to set the ground for race - and win. Because as far iPhone is very much distincitive it has the ability to be alone in his own game without comparison. Samsung destroyed that and that was precisely the reason why Samsung emerged as a main opponent, and I would go that far to say that success of Galaxy SII and now SIII is because of cult status of Samsung as an subversive force that rose on the wings of Galaxy S.

    So the damage that Samusng caused Apple is actually enormous, and we see it by the fact that only company that actually takes on iPhone is Samsung. I believe it's not about Android, specs and competition (because other companies do the same, but they fall steeply), but the signification of hate towards Apple as obsolete on semiotic level. It's a social and culturological phenomenon. It was well worth to Samsung to copy the superficial design language.

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  • Eric McBride Sep 17, 2012 Link

    Guys, it's discussions like these that make me LOVE working for AndroidPIT. I have learned so much from the comments in this thread, and I can't thank you enough for your participation here.

    Please please please keep it up! :-D

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  • Apple Conspiracy Sep 19, 2012 Link

    Dear Eric, I have tried to respond to you on private messaging but the site script told me that I have crossed the limit of maximum messages for this day. I'm confused :-)

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  • Eric McBride Sep 19, 2012 Link

    @Apple Conspiracy - Ah ok. Seems lots of users are getting this strange error. I will send another PM.

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