08/26/2012 09:23 pm ET Updated Oct 26, 2012

What Won -- Apple's Stronger Brand or Their Stronger Argument?

The media is abuzz, if not ablaze, with coverage of Apple's victory over Samsung. The reports analyze the extent of Apple's triumph, its economic implications, and what consumers might expect as a result. I can't think of the last time a patent case colonized multi-column headlines in the NYT and the WSJ.

But what happened Friday is more than just a smashing legal victory. What is being overlooked is the extent to which this also was likely a marketing and mindset victory for Apple. Apple innovates, others -- particularly the Asian companies -- copy. This belief system is deep, is etched, and cannot be deleted by dragging it into the trash.

It's hard to imagine that unconscious perceptions weren't operating with determinative influence in this complex case, whether a juror ever used Apple products -- highly unlikely -- or not. The verdict is less a measure of the weakness of the Samsung case, and more a testament to the power of the Apple brand, and the emotions it evokes.

We'll never know for sure, of course, but there is some strong evidence for the argument that Apple's influence over our psyches is so deep, as to be inseparable from the way we process information about it. The heart of our system, of course, is juror objectivity. But objectivity is not something that can always, if ever, be willed. Increasingly, research in behavioral psychology and what's called "decision neuroscience" tells us that brand and product associations are deeply braided into our perceptual patterns and apprehension of the world.

And if there's any brand that can sway a jury on the level of synapses and neurotransmitters, it's Apple. After more than 25 years of technology and cultural dominance, the company has become a brain-altering phenomenon because it has executed brilliantly on three levels.

  • The product level. From the Mac to the iPad, Apple has put a continually transformative stream of beloved products into the market.
  • The marketing level. Reaching back to the legendary 1984 Super Bowl commercial and moving into the "Think Different" campaign, Apple's marketing sold more than products. They proclaimed a philosophy of life, exhorting us to challenge convention and honor those who do.
  • The personal level. Steve Jobs' personal story, and his untimely passing, are the stuff of mythology and legend. As long ago as 1981, it was said that he had the ability to convince anyone of the possibility of anything, that he created a "reality distortion field." Did the jury inhabit one of its own?

When reading about the verdict I was reminded of a a now-famous experiment from 2008, where researchers examined a phenomenon called "priming" using the Apple logo. Two groups were exposed to the Apple logo; one saw it subliminally, and one was overtly exposed. The other group had no exposure of any kind.

Each group was then assigned a test of creativity called the "unusual uses test." In this case, participants had to invent unexpected things to do with a brick. Those who were exposed to the Apple logo -- in either way -- were more creative than those who were not. The iconic image was more than just a powerful brand statement, it became an actual motivator. The media jumped all over the study, and the reality distortion field became ever-amplified.

I asked Dan Ariely, the well-known behavioral psychologist -- and author most recently of "=The Honest Truth About Dishonesty" about the possibility that the jury was unwittingly influenced - try as they might to remain neutral -- by the overwhelming strength of the Apple brand.

He responded:

The big belief in the market -- and it's very hard to escape -- is that one company is incredibly innovative and one company is not. Can anybody, in this case, escape that belief? The answer is probably not.

Richard Posner, the judge who dismissed the case involving Apple and Motorola in June, was acutely aware of this risk when he spoke these words from the bench:

... I forbid Apple to insinuate to the jury that this case is a popularity contest and jurors should be predisposed to render a verdict for Apple if they like Apple products or the Apple company or admire Steve Jobs, or if they dislike Motorola or Google.

Apple's lawyers were smart enough to play into their strength -- and Samsung's weaknesses -- by structuring the presentation of evidence in a narrative that was emotionally available: Apple as the smart kid in class, Samsung leaning over to cheat during a test. The Reuters story on the verdict noted:

... Apple's tactic was to present... chronological evidence of Samsung copying its phone. Juxtaposing pictures of phones from both companies and internal Samsung emails that specifically analyzed the features of the iPhone, Apple's attorneys accused Samsung of taking shortcuts after realizing it could not keep up.

Our brains are squishy and complicated. How we reach final decisions is based on multiple mental activities happening at the same time, all below the level of consciousness. As the website of the Decision Neuroscience Lab describes it:

Extensive neuroscience research indicates that the brain is comprised of multiple information processing systems... behavior represents the outcome of an interaction among them. For the most part, these systems work cooperatively... when disagreements arise, behavior reflects the outcome of a competition among systems."

One of those "disagreements" is between "intuition and deliberation" they point out. Telling, isn't it, that "deliberation" is exactly what a jury does? Meanwhile, intuition is what Apple had in its favor from day one with the jury, the result of countless joyful experiences -- personal, tactile and otherwise -- with Apple products. And intuition went to work when the jury was handed a burdensome 100 pages of legal instructions by Judge Lucy Koh -- who happens to be a Korean American and hence whose very image could trigger stereotypes of Asian Americans as copycats.

Samsung's only hope was to recognize that this wasn't a legal struggle, but an emotional one. And to then fight emotion by honestly acknowledging it, and forcing the analytic part of the brain to kick in. Their closing argument should have been honest and unexpected:

Look, we know you love Apple. We don't blame you. They make cool products. And they're innovative. But people you love can make mistakes, and Apple is making a big mistake here. They don't own and can't control all innovation. They're smart and successful and should compete in the marketplace, letting consumers make up their minds.

Instead, Charles Verhoeven, Samsung's attorney, made a dry and boring economic argument. He sounded like a finger-wagging lawyer, not a consumer who the jury can relate to, when he said:

Your decision, if you go Apple's way, could change the way competition works in this country. Rather than competing in the marketplace, Apple is seeking a competitive edge in the courtroom.

In a million years, Samsung would have never had the courage to make an innovative argument like the one I described. They would have been afraid to, well, think different. It's the very same culture that holds them back from creating truly innovative products. The same culture that got them into this mess in the first place.