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8/30/2012
10:24 PM
Charles Babcock
Charles Babcock
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Apple Worked A Broken Patent System

Apple used a dysfunctional U.S. patent system to gain excessive control over technologies it did not invent. If you value innovation, don't cheer Samsung's punishment.

The penalty for not putting some limit on the role of design patents and the subjective nature of determining when they've been infringed is to grant Apple too much control over the smartphone's future layout.

On a smartphone, some of the design elements are dictated by function, such as the speaker hole in the iPhone's design. Yet Apple's designers insisted it was another design element, and it was essential that it be where it was for the iPhone design to be unique and beautiful. One of the principles of patent law is that patents can't allocate ownership of functional elements. BMW cannot patent the position of the steering wheel in a 318, and then prevent Volvo and Honda from putting it in the same place. On many smartphones, the speaker hole is located in roughly the same place. It has to be.

Patent drawings show nothing about how the user interface has been implemented or how navigating through one device differentiates it from others. Samsung's Galaxy line, for example, boots up with the Samsung label prominent on the screen, followed by a sunburst pattern, a mechanical voice saying "Droid," and a home screen that looks completely different from Apple's. It's only after you navigate several steps beyond the home screen that you come to an application screen that looks something like Apple's, except for the four touchscreen buttons at the bottom. (Apple has one button.)

None of this extended user experience can be captured in a patent's drawings or taken into consideration at a trial on design patents.

Other manufacturers can avoid their own day in court by designing smartphones, with say, triangular screens, giving up half of the face's real estate to avoid jousting with Apple attorneys. Or they could use oval screens, which aren't so good for viewing Netflix films or the standard rectangular content of Web pages. There are probably more subtle ways to escape the design patent net.

If it's true that in one part of its user interface, the Galaxy's application screen, Samsung crossed the line in mimicking the iPhone look, it's also true Apple shouldn't hold some of the patents that it does.

To sit through this trial, as I did, was a little like vacationing inside a sausage factory, seeing sights that you don't necessarily wish to see. Many technologies, including the smartphone, evolve out of hard work done by predecessor inventors. At the time of invention, some of them are rough or not able to fit precisely into the capabilities of computers available at the time. But they become useful at a later date.

The sight most memorable for me during the trial was Apple attorney Harold McElhinny mocking the kludgy, Mitsubishi Lab's DiamondTouch worktable in his closing statement. The DiamondTouch was an early attempt at producing a collaborative work table, with the activities of its users captured on a touch-sensitive surface.

The DiamondTouch starts out with a projector, which looks something like a post, with a cement block affixed to its base. The projector's light shines down on the table where finger gestures by any of the four collaborators around it can be tracked and captured on a PC, wired to the chairs.

Having previously assembled all the ungainly parts in the courtroom, McElhinny said: "It's hard to imagine holding the Diamond Touch in your hand and making a phone call."

This was a statement that the jury could understand. But it's a specific instance of confusing the style of something with an innovation captured in its underlying technology. The DiamondTouch is an early implementation of snapback and thus prior art. Its implementation was crude, allowing a user to scroll through a digital object, reach a boundary, then be pulled back to the point of origin of the scroll. Apple's patented snapback pulls a user from the edge of an electronic document back to a central point.

McElhinny obfuscated the prior art issue by contrasting DiamondTouch's clunky external design with the sleek iPhone. With the information available, another jury might hold Apple's snapback patent invalid.

If you believe the U.S. Patent Office issues too many patents, then the outcome of this trial takes on a different cast. Yes, infringers should be made to pay, but what if some of those 200 patents on the iPhone should never have been granted in the first place? I am particularly wary of parties that think they should own user interface features and their underlying software algorithms.

Apple believes its market leadership and patents means it owns key elements of modern smartphone design.

"I will spend my last dying breath if I need to and I will spend every penny of Apple's $40 billion in the bank to right this wrong. I'm going to destroy Android because it's a stolen product. I'm willing to go to thermonuclear war on this," Steve Jobs told his biographer, Walter Isaacson (Steve Jobs, page 512).

No wonder Apple and Samsung couldn't reach a settlement. This case is a rough replay of Apple suing Microsoft many years ago when Apple believed it was owner of the graphical user interface. In that case, it was well documented that both Steve Jobs and an Apple design team had visited Xerox PARC to see the first mouse-driven, graphical user interface available, then adopted its elements for the Macintosh. That case didn't get very far.

In Apple vs. Samsung, a jury has given Apple a huge victory in smartphone design and user interface ownership, the one it missed out on before. Apple is using an overworked and dysfunctional U.S. Patent Office to make sure it owns so many parts of the smartphone that competitors may be forced to use secondary or inferior designs to circumvent that ownership.

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ukjb
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ukjb,
User Rank: Strategist
9/4/2012 | 5:21:28 PM
re: Apple Worked A Broken Patent System
i have created a lot of software. in school i (as a part of a team) created really good stuff that we wanted to patent. However the university coached us into thinking that it's really hard to get a patent on software unless it is truly a unique idea that no one has ever touched on before. Years later, seeing the vagueness in the wording of some of the patents used in billion dollar patent cases, i feel as though i have been a little misled.
ukjb
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ukjb,
User Rank: Strategist
9/4/2012 | 5:14:23 PM
re: Apple Worked A Broken Patent System
Many courts in Europe already punish parties who bring frivolous lawsuits to a courtroom. Most of the time the punishment is a monetary fine. In some cases the punishment is a little more creative. Remember the UK judge that is forcing Apple to make the statement saying "... the Galaxy Tab 10.1 does not infringe any of our patents"
ukjb
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ukjb,
User Rank: Strategist
9/4/2012 | 5:07:40 PM
re: Apple Worked A Broken Patent System
Yes the PTO should be involved in having some of apple's patents invalidated permanently. However, apple should not have been awarded damages from samsung on the basis of the "would-be invalid patents" due to prior art. The verdict is -- in that natuare -- a joke.
PaulyP
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PaulyP,
User Rank: Apprentice
9/3/2012 | 4:19:09 PM
re: Apple Worked A Broken Patent System
Was this court case not held in Apple's back yard with a jury made up of people living all around Apple. If this is the case how could you expect any other verdict and how could the verdict possibly not have some element of bias. Surely the trial should have been held in another state.

Is it not possible for all major manufacturers to band together in some way to have some of these rediculous patents challenged and thrown out. If these patents are allowed to stand for ideas not developed by Apple, it will only hurt all consumers for years to come.
leahyd
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leahyd,
User Rank: Apprentice
9/2/2012 | 10:52:10 AM
re: Apple Worked A Broken Patent System
@SubjectiveMind

You speak as if business ethics can be treated separately from those we value in our personal lives; but that is not the case when one considers the impact of business behaviour on our personal lives.

It intrudes at just about every level, from our employment, the choice and cost of products that we consume, its influence on politics, its influence on entertainment and sources of news.

Business is nothing without having an impact on peoples lives - that is the only reason a business exists. It is about time that Business started waking up to that fact.
rjohn81
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rjohn81,
User Rank: Apprentice
9/2/2012 | 12:13:07 AM
re: Apple Worked A Broken Patent System
I was commenting on the patentability of the "snapback" feature discussed in the article, if you read the post. Design patents are a completely different beast, and it's hard to say without actually looking at the patents at issue whether they should have received a design patent based on their cellphone design. But once again, design patents should be easy to overcome, no? Why not make elliptical corners? Tapered corners? Curved edges? Why not offset the "home" button, or place it somewhere else, or removed it entirely? IMO, Samsung got what it deserved in violating even the design patents that could have been easily been worked around if they weren't so focused on making an "iphone killer".
stevew928
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stevew928,
User Rank: Strategist
9/1/2012 | 6:21:06 PM
re: Apple Worked A Broken Patent System
There is copying, and then there is copying!
What was that famous remark on p0rnography.... 'I can't define it, but know it when I see it?' I think this was a case something like that. The, admittedly broken, patent system was the only legal way to fight back.

re: "... or creating such a conscious, copycat duplication that one product can be confused with another ..."

This is EXACTLY what Samsung was trying to do! They weren't copying a successful market trend, they were trying to make their product look, feel, and be marketed, as much like Apple's products to steal a piece of their success pie. Does anyone remember the news articles which uncovered the Samsung booths that actually were using the iPhone app icons to cover the walls?

Going to the car analogy... what if Ford made a car which looked almost exactly like the BMW you mentioned, but also implemented a number of fairly unique BMW mechanical features nearly identically? Then, they took BMWs ads, pulling segments of the image and video footage and creating one of similar style with them?

I agree that the patent system is broken in this regard. I also agree with many of the details you point out in the article. I even agree the WAY in which this all played out is dangerous as future precedence. However, I also have to say that Samsung is 100% guilty as charged in the spirit of the law, if not the letter of it if the patent system were fixed. It was obvious to anyone paying attention, exactly what Samsung was doing. And what they weren't doing was playing fairly or innovating. Note: there are many other smart-phones on the market which have moved towards the iPhone and it's success, but didn't so blatantly copy.

Also, maybe I'm not remembering history correctly, but in the case with M$... I'm pretty sure M$ actually utilized the code from Word and Excel (wasn't it even licensed to them?), which Apple helped them build using their substantial research into UI design, to create the first version of Windows. That was even more blatant copying.
John Eadie
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John Eadie,
User Rank: Apprentice
9/1/2012 | 6:14:48 PM
re: Apple Worked A Broken Patent System
A bad joke, I should say. Compliments to the author, as it is important such a big name as Information Week should publish this 100% correct article. Although my own view is different. I am a programmer from the '60's, and I think patents are just plain wrong. Everyone has invented Apple's stuff, many times over. Patents ought not to have been issued. Also, the Ads in I.T. are just about overwhelming. Too many, too big, too, too much. World is going to hell, etc.
toddalex4
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toddalex4,
User Rank: Apprentice
9/1/2012 | 3:36:24 PM
re: Apple Worked A Broken Patent System
I say curse them both, the flawed system that allows it and the vultures who feed from it without integrity. By the way, SubjectiveMind, your comparison to Edison is somewhat flawed. Edison actually did work on many of his earlier inventions himself. Take the idea of the light bulb, for example. Although he did not invent the concept of a burning filament inside a vacuum, he literally experimented, himself, with hundreds of materials from around the world until finding just the right one that could burn continuously for long periods of time. That's a big difference from what you describe.

Don't get me wrong, I think Steve Jobs deserves a lot of credit for being a visionary, for visualizing society-changing products such as the iPhone before they even existed, and then getting his people to create those products exactly how he envisioned them. But I also think his company's recent patent infringement pursuits are overreaching. It would be like Edison's company winning a lawsuit to be the exclusive maker of light bulbs.
Bruce300
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Bruce300,
User Rank: Apprentice
9/1/2012 | 12:57:43 PM
re: Apple Worked A Broken Patent System
The patent system is designed to perpetuate the legal trade with muddled rules, subjective and wide-sweeping rulings made by those not close enough to the art, and plenty of opportunity for litigation, appeals, and billable hours.

As they say, the first task of any job is to keep your job, and the patent office combined with the legal support system has found an iron clad way to do just that.
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