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.