Samsung’s best defense: Everybody copies, even Apple

August 13, 2012, 12:25 PM UTC

Steve Jobs: “Great artists steal.” From “Everything is a Remix”

FORTUNE — There are two main lines of defense against a claim of patent infringement: 1) Argue that the accused products don’t infringe and 2) argue that the asserted patents are not valid.

“The writing is already on the wall,” on the first line of defense, according to Christopher Carani, a design patent attorney at the Chicago-based intellectual property law firm McAndrews, Held & Malloy. “Samsung’s Defense #1 will likely fail.”

Carani says so on the basis of what Judge Lucy Koh wrote when she granted Apple’s (AAPL) motion for preliminary injunction against Samsung’s Galaxy Tab 10.1 — before she heard any of the evidence presented over the past two weeks.

She described the device as “virtually indistinguishable” from Apple’s iPad. “Samsung,” she said, “appears to have created a [tablet] design that is likely to deceive an ordinary observer, ‘inducing him to purchase one supposing it to be the other.'”

According to Carani:

These assessments of extreme similarity far exceed the needed similarity for design patent infringement, namely, that the accused design is “substantially the same” as the patented design. By using the stronger words “virtually indistinguishable,” Judge Koh plainly appears to be of the mindset that the accused Samsung tablet design easily meets the “substantially the same” infringement standard – so much so that the facts lead to one and only one conclusion – infringement.

If he’s right, that leaves Samsung trying to argue that Apple should never have been granted those patents in the first place. To do so, it must persuade the jury that the patents Apple claims are novel and non obvious are nothing of the sort. And because the jury’s verdict in a federal civil case must be unanimous, Samsung only has to convince one of the nine jurors that the inventions Apple is trying so hard to protect were copied from work that others did before it.

In that context, Samsung’s legal team may wish it could enter into evidence a 10-minute TED talk by producer/director Kirby Ferguson that was posted on YouTube Friday and made the rounds over the weekend.

Ferguson argues that everybody copies, including Apple, and that “everything is a remix.” He starts with the early songs of Bob Dylan and ends with the iPhone — topped off with a 1996 clip of Steve Jobs quoting Pablo Picasso’s line: “Good artists copy. Great artists steal.”

“And we’ve always been shameless,” Jobs famously adds, “about stealing great ideas.”

“In other words,” Ferguson concludes, “great artists steal, but not from me.”

Here’s that TED talk: