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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.

Samsung too closely copied some elements of the Apple iPhone, and for that it should be hung up in the public square. But Samsung should be hung by its thumbs, at worst, not its neck.

Copying in some measure is all around us. It is continuously present in many parts of a free enterprise system and in some ways is a yardstick to the health of that system. I often see small, muscular-looking cars with lines similar to the BMW 300 series, but they have Swedish or Japanese nameplates on them. Watching what sells is a basic premise of anyone engaged in a competitive race. Matching a competitor under your own brand is a time-honored practice.

What a patent and legal system should aim to prevent is theft by copying, such as stealing the technology of a competitor's product, or creating such a conscious, copycat duplication that one product can be confused with another, thus letting the profits of an originator be taken by an imitator. Samsung did not do this.

Samsung's icon layout on its application screen looks similar to Apple's home screen, but beyond that, the jury's verdict in the Apple vs. Samsung case is a muddle, a confusion of design patents put in the same category as utility patents, and the verdict for infringing design looks as punitive as one for stealing technology.

[ Take a look at Samsung's newest smartphones. See Samsung Galaxy Note 2, Windows 8 Smartphones: First Impressions. ]

That shouldn't have been the case. Utility patents are protection for a unique invention, a kind of monopoly granted for 20 years after an examiner determines that no such inventions existed previously or can be found in what's known as prior art.

Design patents are generally agreed to be more subjective. They're good for 14 years, and spring from an 1891 court case that found one silverware manufacturer had copied the pattern of another.

If the "ordinary observer" can detect "substantial similarity" in one silverware pattern versus another, the original's design has been infringed, ruled the Supreme Court. And that's still the standard used in a design patent case involving two sophisticated, multi-layered electronic devices today.

Designs are established through the black and white drawings of exterior ornamentation submitted with the patent claim. In this trial, four Apple design patents were the central issue. Jurors' comments to the press after the trial indicate they were crucial in determining the outcome.

Until now, design patents have tended to play a much smaller role in computing and consumer electronics. For example, of the 6,242 patent examiners in the U.S. Patent Office, 99 of them are design examiners. The rest are utility patent examiners.

Yet, as computers shrink to handheld size, the role of design patents gets magnified. In smartphone design the evolving functional elements, such as the size of the touchscreen, are closely tied into the overall design. Apple didn't invent the capacitive resistance touchscreen, where the electrical field of a human finger makes a connection on the conducting surface of a piece of glass. But its core design patent on the iPhone covers a large, rectangular screen on a handheld device with rounded corners, much as you would now expect a touchscreen to be implemented. There are other elements, but the screen-centric design figures heavily into the iPhone's and iPad's respective design patents.

Apple has used a dysfunctional U.S. patent system--too many patents granted without enough understanding of the state of the art--to prosecute this case.

One of Apple's utility or technology patents covered snapback, a user interface feature that has been taught in computer graphics courses for 10 years, according to testimony at the trial. Either the examiner who approved the patent was not aware of that, or he judged Apple's application of snapback on a phone screen to be a first-ever invention. Whichever way it went, the existence of prior art should have prevented this patent from being issued.

When it comes to the smartphone, Apple's design patents come too close for comfort to giving Apple control of underlying technologies it did not invent, simply because it has asserted ownership of the design. The iPhone and iPad were brilliant design packages, and Apple deserves all the profits it has gained from them.

But the emergence of capacitive resistance screens would sooner or later have allowed many companies to eliminate keypads and produce devices with screen-centric designs. In many cases, they would have been following Apple's lead--let's say copying a good idea in their own way. And the result would be a vigorous, competitive economy and consumer choice.

A more demanding patent system with fewer patents issued would still have left Apple with the leadership position in the market and the respect of consumers who like its products. But it would have been obligated to continue to innovate instead of using patent law to slow or stifle competitors.

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hparmar132
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hparmar132,
User Rank: Apprentice
8/31/2012 | 2:54:54 PM
re: Apple Worked A Broken Patent System
Agreed this verdict should be tossed out.
Drene
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Drene,
User Rank: Apprentice
8/31/2012 | 3:48:58 PM
re: Apple Worked A Broken Patent System
Apple deffinately did not invent "the touch screen" so they went to the point of trying to label their product as a "work of art".... true colors are hard to mask. It's sad to see how much time and money is wasted in litegation, gotta love the legal bunch, they don't want to change a broken system that they developed, then they would be out of work...
Pathetic.
tonyswash
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tonyswash,
User Rank: Apprentice
8/31/2012 | 3:59:10 PM
re: Apple Worked A Broken Patent System
Charles Babcocksaid

"What a patent and legal system should aim to prevent is theft by copying, such as stealing the technology of a competitor's product, or creating such a conscious, copycat duplication that one product can be confused with another, thus letting the profits of an originator be taken by an imitator. Samsung did not do this."

That's exactly what they did. Documents revealed in the trial makes it clear that's Samsung planned to copy Apple and then did.
http://nicklazilla.tumblr.com/...
ndgoat
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ndgoat,
User Rank: Apprentice
8/31/2012 | 4:04:10 PM
re: Apple Worked A Broken Patent System
Couldn't agree more, the verdict is a joke.
ANON1234449176287
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ANON1234449176287,
User Rank: Apprentice
8/31/2012 | 4:06:16 PM
re: Apple Worked A Broken Patent System
Why aren't their fines or sanctions against companies like Apple that apply for patents for technologies or designs that already exist? Or maybe better yet, give them a 3 strikes and you are suspended for a year or two. If you took the chance of not being able to submit a patent on something that you really did invent and that really did matter because you were abusing the system, there would probably less abuse of the system. Whatever the solution, something has to be done. Hopefully this case will be appealed to a judge that understands the issues and will invalidate the patents that shouldn't have been granted. Then, that great sucking sound you hear will be Apple trying to figure out how they are going to actually compete without abusing the law.
MagFarm
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MagFarm,
User Rank: Apprentice
8/31/2012 | 4:20:08 PM
re: Apple Worked A Broken Patent System
What did phones look like before iPhone? Apple blew it out of the water. Who was on the board at the time? Google's CEO. Coincidence Android looks almost exactly like iOS? If you think so, then I've got a whole bunch of $100 bills i'll be happy to sell you for $10 each. Way better investment than your home or 401k. Trust me, i'm on the web and form complete sentences so I must know what i'm talking about. So, back to SJ's comment that Android is a stolen product. When the patents were reviewed, prior art is documented and considered. The people that had the facts in front of them and at their fingertips thought these were unique. But I'm sure a journalist who's never designed or built anything original (other than a moderately researched opinion) and the web's peanut gallery (who could really use better spell checkers) have better access to the facts that were considered or not than the people that were paid to review and approve them. We should skip the whole patent and court thing and just let you guys make the call. Idiots.
1954 Stratocaster
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1954 Stratocaster,
User Rank: Apprentice
8/31/2012 | 4:21:32 PM
re: Apple Worked A Broken Patent System
"First, let's kill all the lawyers."
--William Shakespeare, Henry VI, Part II
ETi
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ETi,
User Rank: Apprentice
8/31/2012 | 4:24:25 PM
re: Apple Worked A Broken Patent System
The verdict is not a joke. It was serious, it's based on patents awarded in a "broken patent system". Per the excellent content of the article, I think Samsung in their appeal should also sue the US Patent Office to invalidate the patents given to Apple. The problem must be fixed at its root.
Richard_Bentley
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Richard_Bentley,
User Rank: Apprentice
8/31/2012 | 4:34:07 PM
re: Apple Worked A Broken Patent System
In terms of the patent system, there are three basic problems: the liberal legal interpretation of what constitutes a patent violation; the patentability of very low level items, such as icons on a screen and glass screens; and the length of time a product can be patented. All software should have a finite and reasonable expiration date which will take into account cost recoveries and profit before it is allowed to go generic. The same should be true for hardware. A related example is the copyright rules on published material. No book published since 1922 is in the public domain. That is excessive. In the case of products that are in continuous development, a short turnaround on the the length of the patent is needed. An example that comes to mind is motherboards. They basically have a production life of little more than a year or so, but the patent remains in place. There is no reason why some third party should not be able to produce the same board if there is enough demand for it, and it has been dropped by the original manufacturer. One need to look no further than the SCO linux patent trolling debacle that was originated exclusively to obtain license fees fraudulently to see how ludicrous the suits routinely filed by proprietary companies such as Apple really are. Yet they win settlements because in part of the legal expenses involved for the other party, and in part because the law is firmly on their side - laws that have needed to be completely revised for years. And probably will never be, because of the attitudes of corporations.
deckar01
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deckar01,
User Rank: Apprentice
8/31/2012 | 4:40:04 PM
re: Apple Worked A Broken Patent System
As an undergraduate studying Computer Science I was given the opportunity to implement a patent granted for an image compression algorithm as a paid internship. After 2 weeks of programming, studying the patent, and reviewing the history of image compression, I found the patent inferior to algorithms published in the 1970s.

I could not believe the patent holder was allowed to use statements like "An improved digital halftoning method..." (http://www.freepatentsonline.c...

I was ultimately fired for trying to discuss problems with the patent.
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