Samsung gains ground in patent wars, but Apple still ahead

It was the most memorable moment in an otherwise pretty dull patent fight -- a judge held up an Apple (AAPL) iPad and a Samsung (005930.KS) Tab and asked one of Samsung's lawyers if she could tell the difference from 10 feet away. "Not at this distance, your honor," she replied.

But on Monday, an appeals court said the courtroom theatrics were irrelevant. The U.S. Court of Appeals for the Federal Circuit found no protection in U.S. patent law for the overall appearance of a tablet or smartphone as long as the shape and look improved the device's functionality, by making it easier to grip, for example. Apple also lost a similar claim for the shape and arrangement of icons on the iPhone's screen.

That move overturned Apple's so-called trade dress patents win, a big piece of its 2012 $1 billion jury verdict victory over Samsung (later knocked down to $930 million).

At the same time, the appeals court upheld other parts of Apple's victory, including patents covering more specific features, such as the color and arrangement of the elements on the front face of the iPhone and its bezel.

Now, barring a settlement, the case goes back to the lower court to re-decide the damages. Samsung says the trade dress patents accounted for $382 million, so damages should fall to $548 million. Apple argues the full amount should still stand. The case is separate from another Apple patent win in court last year that resulted in a $120 million damage ruling against Samsung.

Who's winning the patent war?

So who ultimately won the patent wars initiated by Apple's late CEO Steve Jobs five years ago against his iPhone competitors?

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Apple has seemingly spent tens of millions of dollars in legal bills on Jobs' "thermonuclear war" without much to show for its efforts. Courts never barred the sale of Samsung's popular Galaxy S line of smartphones in the United States and the amount of damages looks to be continually shrinking. Samsung is still battling to reduce the damages it owes, which in any event will amount to rounding errors on both companies' massive balance sheets.

Apple also never went after Google (GOOGL), which designed the Android phone operating system that borrowed liberally from iPhone design concepts. In recent years, Apple has also borrowed some Android features to add to its iOS software.

But business history will also show that at the height of the patent wars trials, Samsung suffered a dramatic misstep. The Galaxy S 5, released last February but obviously in design during 2012 and 2013, lacked an attractiveness or enough innovative features to sustain Samsung's smartphone market momentum.

It could be that lawyers interfered with the design process, or that executives were distracted with trial preparations, or perhaps they were just fearful of yet another Apple lawsuit. It's also possible that the flubbed S 5 had nothing to do with the patent wars and was just a surprise misfire from Samsung's design labs that had previously generated hit after hit.

So while lawyers continue to battle over the scraps and appeals of the smartphone patent wars, the verdict of history will also await a fuller accounting before a final judgment is rendered.