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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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Peter H
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Peter H,
User Rank: Apprentice
8/31/2012 | 5:22:05 PM
re: Apple Worked A Broken Patent System
Design patents?.....well have a look at the LG Prada which came out in 2006 and compare it to the iphone 4 which came out in 2010. Notice anything familiar?.....Lets see,a rectangle with rounded corners. A centrally mounted screen, a bezel around the edge of the casing. A speaker located at the top of the screen area in the centre....Have a look at that and then tell me there is no prior art on the design. And the LG Prada is just one example of prior art int he design. Whether you like to admit it or not ( and I suspect not ) Apple copied others and they should never have been given patents on their design or trade dress in the first place. Like wise the screen with icons. have at look at the Blackberry phones from 2002. What do you see?...A screen with icons on it. Ask yourself this,why have Apple's cases been thrown out in the UK, the Netherlands, Australia and not Japan ( on a slightly different patent claim to the US and the other ones ). The answer is simple, these cases have all been tried by Judges and not juries and in every case, the Judges have checked prior art and found that it already exists and therefore, the relevant Apple patents have been classified as invalid. If Apple are correct, why has this happened? The simple fact is that Apple are well known for copying others technologies ( and have openly boasted about it ) and then had the audacity to sue others for doing exactly what they did themselves, and whilst you may have been suckered into believing Apple are the be all and end all, those of us who actually posses some intelligence, see straight though what Apple are doing and find it totally unacceptable.
SubjectiveMind
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SubjectiveMind,
User Rank: Apprentice
8/31/2012 | 5:21:54 PM
re: Apple Worked A Broken Patent System
My dear fellow. My sentiment toward Steve Jobs is mixed, as I felt he was a scoundrel, and yet a genius. Perhaps not for creating anything other than one of the most powerful companies in the world. He must be given credit for that.

As for your comment, "He took credit for everything and seldom acknowledged the hard work of others." The history books are full of men such as this. Thomas Edison is the biggest name of all. I would say that these two men are very similar in many respects. Edison has gone down in history as one of the greatest Americans,and rightly so.

Many more names come to mind, and as an electrical engineer, I am sure you know quite a few of those names. The point is, the system is there to be worked. Loopholes are the places where money is made.The robber-barons knew it. Those on the welfare system know it. Homeowners and small business owners know it, and guys like Steve Jobs and Apple know it. Don't curse those that have foresight to manipulate the current system. Curse the system that got gamed and didn't close the loopholes.
hlubinv8l
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hlubinv8l,
User Rank: Apprentice
8/31/2012 | 5:17:10 PM
re: Apple Worked A Broken Patent System
Yes, that's stealing "ideas"... NOT stealing "intellectual property", which Samsung has been found guilty of doing.

You don't seem to understand the difference between the two.
hlubinv8l
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hlubinv8l,
User Rank: Apprentice
8/31/2012 | 5:15:42 PM
re: Apple Worked A Broken Patent System
With an article like this, the Web site should rename itself to "Misinformation Week". ;-)
faqinblizzard
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faqinblizzard,
User Rank: Apprentice
8/31/2012 | 5:09:44 PM
re: Apple Worked A Broken Patent System
Why is everyone defending the Japs on this one? Just more Communist, Marxist, Socialist, bed-wetting liberals that hate America and want to dance in the streets naked while America burns...Old Schmucky sees you for what you are.
dwongl4b
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dwongl4b,
User Rank: Apprentice
8/31/2012 | 5:04:10 PM
re: Apple Worked A Broken Patent System
Just look at the Arduino, it is a totally open design and help ton of people to know the electronic a lot better than just touch the screen.
Apple did make good design, no doubt about this, but can they control the design of the smart device up to the point that everyone has to use apple, that is a big debate.
Because of the way that Apple sue everyone to protect their market, I will turn away and buy other product to support open/fair business practice. Samsung Galaxy Camera might be my next smart device.
I know it is not easy to make money this date, but apple is to the point that against the innovation of design.
If Ford make his first car and sue everyone to make another car, what might happen to this world.
Please bring the court case to other country than US, and you know what the result might be. just like Japan.
MacChalium
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MacChalium,
User Rank: Apprentice
8/31/2012 | 5:00:14 PM
re: Apple Worked A Broken Patent System
I have zero respect for Apple as a corporation, and before he died, a whole lot less than that for Steve Jobs. He was worse than a shark. He took credit for everything and seldom acknowledged the hard work of others. The fact that Apple continues to "innovate by litigation" should come as no surprise to any one. I take a small measure of comfort in the knowledge that not a single cent of my hard earned money has been spent on Apple products and never will. I have half a mind to go buy something else from Samsung just to show my derision of Apple (but at my age, half a mind is all I have left so I don't want to waste it). I have no use for a smartphone, tablet, pod or pad from anyone, but maybe one of my kids does. As an electronics engineer, all I want is a very capable desktop PC and when the day is done I have better uses for my time than keeping my face plastered to some electronic gadget.
RandomViewer
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RandomViewer,
User Rank: Apprentice
8/31/2012 | 4:42:31 PM
re: Apple Worked A Broken Patent System
1. Could not agree more the trial was a joke.
The level of attention and research devoted by the court was stupidly low. The modern market creates a interconnected vessel system in terms of ideas. The judicial system does not follow, update.... The results:
U can NO LONGER protect your patents from competition
The bigger lawyer wallet wins!!!!

2. This article and most comments here ARE OUT OF TOPIC
What is wrong with this picture?

Author starts by presenting the thesis. OK
Next he summarizes the case - particularly emphasizing the obvious similarities between.
Introduces quite nicely (Great job) the judicial system. He differentiates between utility and design patents. NEXT should be his proof.....
(In this time let's try to follow and sum up his reasoning)

But Then.................He draws completely different conclusion based on the presented evidence.
YOU CANNOT talk about utility patents as false/infringing since the MAJOR part of TRIAL concerned the design patents. And Yes, Samsung broke these.

So dear author please be a little more thorough for future writings; or if you are simply ignorant of the obvious - STOP IT - Journalists are also responsible by law :)
rjohn81
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rjohn81,
User Rank: Apprentice
8/31/2012 | 4:40:46 PM
re: Apple Worked A Broken Patent System
Presumably the claims at issue were specific enough to preclude using the DiamondTouch reference in an anticipation 102 rejection (i.e. it likely met the novelty standard). As to obviousness, would the DiamondTouch have been considered analogous art to a cellphone running iOS? Would it have made sense to have combined the teachings? These are the questions that must be addressed. You can't just look at the feature generally and say it's a bad patent because someone, at some point, did something vaguely similar in a likely completely different context. I'd also note that none of the patents were invalidated in the decision. Are you saying that, without looking at the exact claim language and how each of the prior art is arranged, that you're in a better position to determine that something is obvious than the examiner who had looked at it in detail and/or the jury of this trial?

It's easy to point and say, "well, that SEEMS obvious to me!", but the legal standard for deciding such is much, much higher. Bottom line: Samsung had a simple way of avoiding any litigation: avoid infringing on the patents at issue. If these features are so seemingly trivial, it should be simple to change designs to overcome them, no?
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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