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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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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: Ninja
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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