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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.

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.

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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.
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.
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
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.
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.
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.
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/...
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.
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.
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