The pen pen identified in the article even complicates his argument. When I see the identifiable white cylinder Bic pen with distinctive black text, with a black or blue-colored head and cap, I know it is a Bic or a pen closely imitating Bic's style. Pens come in an enormous amount of variety and styles despite the form being mostly equivalent.

Now compare an iPad and a Samsung Galaxy Tab when they are both off. Ignore the subtle "Samsung" logo in the front, or the Apple logo in the back. Black front with metallic bevel and back. Any consumer would either confuse the two or say they are imitating each other. Apple's design patents may be stretching the meaning of novelty, but when consumers can so easily confuse the two, it is hardly defensible for Samsung to say there were no distinctive factors they could have added to lessen the confusion. The TouchPad had a slick black back to it and an oblong home screen button. The Kindle Fire is smaller and dark grey. Etc.