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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.
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.
ndgoat
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ndgoat,
User Rank: Apprentice
8/31/2012 | 6:53:40 PM
re: Apple Worked A Broken Patent System
You are being overly critical of my reply but thanks for the breakdown. Obviously the courts don't joke when they come up with a verdict. I guess I should have worded it better to imply that I thought the system itself is what made the verdict a "joke". When a system is flawed you correct the problem at its root as you stated.
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.
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.
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"
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
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.
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.
MyW0r1d
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MyW0r1d,
User Rank: Strategist
9/5/2012 | 9:51:36 PM
re: Apple Worked A Broken Patent System
Apple displayed what the university failed perhaps to make clear, filing a patent is one thing defending it is another exactly because of the vagueness. If you file, make sure you have the funds to defend against the Apple's whose interests are to ensure competitive advantage or eliminate competition with all means necessary. Not having the funds for a sustained legal battle could have severe consequences regardless of what is right or wrong. Why did they choose Samsung instead of all Android devices? Because it was a one-on-one not a one against many with the relative consolidated legal funding.
MyW0r1d
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MyW0r1d,
User Rank: Strategist
9/5/2012 | 9:46:23 PM
re: Apple Worked A Broken Patent System
WorkplaceRelations 101, rule one don't "discuss" with the boss, listen, rule two when in doubt follow rule one, rule three, if you have the bosses' boss in your back pocket you may an opportunity.
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?
ANON1234449176287
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ANON1234449176287,
User Rank: Apprentice
8/31/2012 | 5:45:49 PM
re: Apple Worked A Broken Patent System
So, you think it is valid for the patent office to issue a patent for a rectangular form with rounded corners? If that's true, I'm going to draw a circile on a napkin and submit it for a patent and then sue Goodyear. Actually, I wouldn't. And that points to the other issue here. If a business has any integrity, it is not going to do something like that.
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".
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 :)
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.
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.
RandomViewer
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RandomViewer,
User Rank: Apprentice
9/8/2012 | 9:06:26 PM
re: Apple Worked A Broken Patent System
And yet you most probably bought an iPhone yourself? Am I right?
2nd. Let's maybe focus on the current patent cases because if we would trace all modern product development we would end with quite disturbing conclusions. hehe :))
See patent law is a funny thing and it has simply not changed throughout all those years. The only thing unchanged/irreversible, are the court rulings.
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.
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.
Gideon
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Gideon,
User Rank: Apprentice
8/31/2012 | 5:44:41 PM
re: Apple Worked A Broken Patent System
SubjectiveMind, you are a brilliant engineer.
ANON1234449176287
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ANON1234449176287,
User Rank: Apprentice
8/31/2012 | 5:52:30 PM
re: Apple Worked A Broken Patent System
Sounds like you believe a lack of integrity is ok. That's all the manipulations that you described are; an obvious manifestation of a lack of integrity.
SubjectiveMind
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SubjectiveMind,
User Rank: Apprentice
8/31/2012 | 8:54:26 PM
re: Apple Worked A Broken Patent System
Integrity and ethics are realistic and practical in personal life, and when business is on a level playing field.

The reality is that in a global economy, in this day and age we must use every tactic in the arsenal (that we can live with) to stay profitable, and remain on top. Years ago, not being on top of the heap was ok; these days it is a death sentence... especially in technology.
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.
RandomViewer
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RandomViewer,
User Rank: Apprentice
9/8/2012 | 9:34:04 PM
re: Apple Worked A Broken Patent System
I am sorry to say this but I completely agree with you @SubjectiveMind. :(
Anyone who ever took a lecture in modern project management etc. knows that we all are part of a greater system - which by the fact we created, and simply need to assume our roles. Those people like Jobs, Gates etc. which we might despise or find controversial, knew that. But still talking about company/human ethics is VERY important. How else can our culture counter that high competing market of ours. :)
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.
RandomViewer
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RandomViewer,
User Rank: Apprentice
9/8/2012 | 9:20:36 PM
re: Apple Worked A Broken Patent System
Are you a freedom fighter? You know what happens with those - they die & the world stays the same. Besides this is simply human nature to take out smaller fish build one's greatness on other's ideas. We all do this at the office, home (in different extent of course).
This simply like talking about politics.. :)
We cannot eliminate shadow systems or bad conduct. We need to adopt to it and develop techniques of keeping the important factors on top ex. project efficiency.

A question: Do you think that all the technological development would be achieved if not for "shark" egoistic unfair competition????
Finally, it's actually the elements of globalization - cooperation between companies, that slow us down. :) That's an awesome irony!!!
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.
SubjectiveMind
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SubjectiveMind,
User Rank: Apprentice
9/4/2012 | 5:39:21 PM
re: Apple Worked A Broken Patent System
First of all let me just state that I am not defending Samsung. Second of all they are Korean you pathetic,racist, nitwit! Oh wait, let me guess...they all look the same to you right?

Oh and BTW... VOTE OBAMA!
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". ;-)
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.
Eddie60101
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Eddie60101,
User Rank: Apprentice
8/31/2012 | 7:59:09 PM
re: Apple Worked A Broken Patent System
You DO understand that many forms of "intellectual property" are just an idea that has been patented, trademarked, copyrighted, or so on, right? The purpose of patent law is to benefit society (as mentioned in the constitution), not to maximize monetization of every single idea that every company has.
ANON1241631011972
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ANON1241631011972,
User Rank: Strategist
9/1/2012 | 4:25:30 AM
re: Apple Worked A Broken Patent System
You incorrectly assume that drawing the parallel indicates not understanding the difference. The difference is that "intellectual property" is a stolen idea where the crime has been aggravated by the perpetrator claiming the idea as an exclusive right. In every single one of these prominent cases, there is substantial prior art and the idea is, at best, a derivative work. You can't expect a patent lawyer to possess enough imagination to avoid a sense of abject admiration and awe when presented with the most minuscule adaptation of a well-established design concept. None of these look and feel patents are, in the immortal words of Dubya, "Rocket Surgery." Also, without exception, the human in whose brain the idea was adapted from that prior art, has not been compensated at even a small fraction of the value placed on the infringement in these lawsuits. There would be much less of an appetite to take these cases to court if there existed an unjust enrichment rule dictating that the original innovator was entitled to fair compensation as part of any corporate patent settlement. Can't you just imagine the proceeds of a billion dollar lawsuit having to be split equally with the genius brainiac who decided that rounding the corners of a graphic confined by a grid square would be more aesthetically pleasing!
Atlsailor
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Atlsailor,
User Rank: Apprentice
8/31/2012 | 5:24:23 PM
re: Apple Worked A Broken Patent System
Following the money is a hallowed investigative method. Apple's influence with the patent office has turned a lot of heads. With only 99 design patent examiners and a subset of them involved with Apple patents, wouldn't some thorough journalistic investigation of Apple's patent process be in order?
SkiMan01
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SkiMan01,
User Rank: Apprentice
8/31/2012 | 5:43:28 PM
re: Apple Worked A Broken Patent System
Anyone who has ever gone to jury duty knows it to be a system where a thoughtful verdict cannot be rendered. If you have any knowledge of the technology related to the case being argued, you are tossed off the jury panel. Only those with no knowledge of the material being presented are permitted to make a decision on a case being argued.
That makes the entire legal system one of being a judge at a debating contest. The content of the subject is not permitted to enter into the decision of who won. The case is decided on the likeability of the person arguing the case, namely, who put on a good show. I have sat on enough juries to know that is how people make their decision when they go back into the jury room.
For example, Apple argued that using a phone handle to represent the phone icon was patent infringment. However, Ma Bell used exactly that same symbol for 60 years or so. Cell phones used that same symbol on the answer key. Apple claimed it was exclusively their property and won.
As far as looks and usage goes, the original iPhone was a copy of the LG PradaPhone. Same looks, same touch screen, same loyout. What made the iPhne unique was the ability to purchase a wide variety of apps from iTunes. The Prada Phone only allowed apps purchased from the service provider. Similarly, the iPad was a loose copy of the IBM touch computer from the late 1990s. Again, the magic of the iPad was a wide variety of apps.
Long story short, a good lawyer can convince a jury that the sun really rises in the west. And again, Apple is the kind of company that everybody likes to like. Thus, Samsung is dead meat.
ANON1241631011972
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ANON1241631011972,
User Rank: Strategist
9/1/2012 | 4:39:38 AM
re: Apple Worked A Broken Patent System
Not to mention that a foreign company defending itself in Silicon Valley, USA, with valley girls and boys on the jury all texting each other on iPhones, is dead meat.

I may have exaggerated some of that. However, the point is that Apple has a distinct home field advantage near the home of Xerox's Palo Alto Research Center where Apple's founders began their historic journey as the most successful and prolific thieves of computer user interface ideas and algorithms in modern history.
AppleAshamed
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AppleAshamed,
User Rank: Apprentice
8/31/2012 | 5:43:45 PM
re: Apple Worked A Broken Patent System
I work in the software development industry, and HAD been a Microsoft proponent for many years. In the past couple of years, I had a couple Android devices, but decided to move to Apple because of how integrated the Apple TV, iPhone, and iMac have been for my home needs. I only own Apple devices now at home. HOWEVER, I have decided because of this verdict, and Apple's arrogance, I will buy an Android device when my iPhone contract expires. I will get as many people as I can do support Android vs.apple going forward.
wht
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wht,
User Rank: Strategist
8/31/2012 | 6:08:36 PM
re: Apple Worked A Broken Patent System
I have been on that plan for years already. My head start was in never buying any Apple products, and watching my daughter regret her first 2 or 3 purchases...now a Droid user too. I personally prefer the Windows phone for business use at this time.
RandomViewer
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RandomViewer,
User Rank: Apprentice
9/8/2012 | 9:40:03 PM
re: Apple Worked A Broken Patent System
You have my support :)))
rmcdonald860
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rmcdonald860,
User Rank: Apprentice
8/31/2012 | 6:30:58 PM
re: Apple Worked A Broken Patent System
The Xerox Parc thing is over used. What they saw there was not what Apple built. In addition, Apple licensed the mouse technology from Xerox.

The reason Apple could not stop Microsoft was that at the time most software was protected by copyright, not patent. Personally, I think it should go back to that, but you can patent anything these days. Amazon patented one click shopping, even though you could do the same thing on BBSs long before Amazon existed.
NiteOwl_OvO
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NiteOwl_OvO,
User Rank: Apprentice
9/6/2012 | 5:49:15 PM
re: Apple Worked A Broken Patent System
Take a good look at Xerox's ViewPoint interface to see what Apple and Microsoft copied. Apple licensed the mouse from SRI not Xerox. Apple and Xerox didn't invent the windowed interface or overlapping windows. SRI did, although it was text-based.
mpmartin68
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mpmartin68,
User Rank: Apprentice
8/31/2012 | 6:59:26 PM
re: Apple Worked A Broken Patent System
In 1996, during a PBS interview, Steve Jobs is quoted as saying, "We have always been shameless about stealing great ideas." Interesting how your viewpoint changes when you are on the other side of that equation...
http://youtu.be/Z_tYwsqVC9o
Gene Cavanaugh
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Gene Cavanaugh,
User Rank: Apprentice
8/31/2012 | 7:04:18 PM
re: Apple Worked A Broken Patent System
As an IP (aka "patent") attorney, I have a slightly different slant. Congress has mandated that the USPTO be "profitable" - spend a lot of money expanding, have a slush fund for Congress to dip into, etc.
To do that, the USPTO has to encourage "big spenders" to spend big. So they now have a "performance vs revenue" (translation, as little work (expense) and as many fees (revenue) as possible).
For that model to work, they have to allow the really big spenders to just tell them what they will be allowing. To be successful as an Examiner, you will have to ignore trivial things like prior art, obviousness, etc., and simply tell the "big spender" how much it will cost them for whatever it is they want.
So, Apple is evil, true. But their evil would not work without Congress forcing it on the USPTO. The real perpetrators are the members of Congress who are desperate to find more money to give the wealthy, so the wealthy will pay them.
twalkerm9w
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twalkerm9w,
User Rank: Apprentice
8/31/2012 | 8:34:22 PM
re: Apple Worked A Broken Patent System
This reminds me in some ways of the Selden patent(s) on the automobile, Henry Ford helped to break that fraud, again obviousness. As for Edison many of his inventions (products of the Edison labs) have evolved over the years and most of the time by other people, not Edison or his companies. In this fast changing environment most patents should be restricted to 3 or 4 years then expire and be unrenewable. I wonder what country Apple will turn its guns on next.
elambert303
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elambert303,
User Rank: Apprentice
8/31/2012 | 10:02:09 PM
re: Apple Worked A Broken Patent System
Excellent analysis, Charles
Melisab
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Melisab,
User Rank: Apprentice
8/31/2012 | 10:09:42 PM
re: Apple Worked A Broken Patent System
Thank you for this piece Charlie. It helped me understand the whole mess a lot better. I have to wonder how many people who agree that the verdict was a joke own an iPhone (full disclosure, I have a Samsung) and who would be willing to give it up. I definitely do not know enough about the law to make much sense, but couldn't Apple be sued for monopolization or impeding technological progress or even hoarding technology? I think there needs to be some sort of Eminent Domain for technology. If someone won't loosen their grip on technology and it impedes progress, we take it. Not saying I agree with Eminent Domain, just saying in this case, it would be handy. No one can argue how successful Apple is and how much their designs have changed the world, but history has shown that Americans have little love for megalomaniacs and dictatorial entities. It will be interesting to watch what happens next.
Devil's Advocate
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Devil's Advocate,
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9/1/2012 | 12:04:58 AM
re: Apple Worked A Broken Patent System
A bigger joke is how the jury spent less than 23 hours in deliberations reviewing over 100 pages of jury instructions and addressing over 700 questions.
smccarthy850
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smccarthy850,
User Rank: Apprentice
9/1/2012 | 2:33:25 AM
re: Apple Worked A Broken Patent System
I agree that this is "working the system" and the verdict should be tossed. As for Apple, as soon as my iPhone contract is up, I'll not buy or be associated with another Apple product. What they did smells big time. They are taking it in the shorts because they aren't innovating as well as Samsung, so they want to slow them down. I hope other people are like me and vote with their feet and pocketbooks!
Bruce300
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Bruce300,
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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.
John Eadie
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John Eadie,
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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.
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.
Corgi
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Corgi,
User Rank: Apprentice
9/4/2012 | 11:41:09 PM
re: Apple Worked A Broken Patent System
I agree with this whole-heartedly. I don't see Apple taking LG, Motorola, Nokia, or any other smartphone manufacturer to trial G-only Samsung, and this is because Samsung blatantly copied the design of the iPhone in many ways (in hardware as well as software). I will also concur that the patent system is broken; however, this isn't a good example of how it is broken.
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.
ANON1237925156805
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ANON1237925156805,
User Rank: Apprentice
9/6/2012 | 8:34:04 PM
re: Apple Worked A Broken Patent System
Apple followed the law. The law seriously needs to change.

On the other hand, this weekend I was visiting family in CA whom I don't often see. Several times I noticed that family members had iPhone 3GSes only to discover that they were Samsungs. I've never mistaken an EVO or a Droid for an iPhone so there is something there.

The question becomes this: In a universe where design is so key do there not need to be some boundaries? How do we find them?
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