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Charles Babcock
Charles Babcock
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Apple Vs. The Swiss Railways Patent

Apple's not been convicted of anything by a jury, even if a clever Swiss attorney could make up a color graphic that makes the two clock faces look exactly the same.

Apple One Year After Steve Jobs: Hits And Misses
Apple One Year After Steve Jobs: Hits And Misses
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Apple's design sense is a national treasure, one that needs to be protected at all costs, not just for the life of a patent but for the lives of our children, our grandchildren, and our grandchildren's children. That $1.05 billion verdict handed down by the jury was just a slap on the wrist.

You can imagine my dismay, then, to learn that the Swiss Federal Railway informed Apple last month that the design of the clock face in the iOS 6 clock application running on the iPad bears "a remarkable similarity" to the wall clocks that occupy Swiss railway stations.

What on earth were they suggesting? That Apple copied their clock? You can't compare the intracacies of an iPhone, with its polished steel bezel, its Gorilla glass, its multi-gesture user interface, and its wondrously rich application choices, to a wall clock seen every day by travelers in a small and irrelevant European country.

Granted, the Swiss did not accuse Apple of "slavishly copying" their clock, although they probably suggested that the "ordinary observer" might find "substantial similarity" between the two. They also refrained from accusing Apple of "ripping off" the national railroad's design ideas. But unfortunately for Apple, the Schweizerische Bundesbahnen (railroad) had taken pains to trademark and copywrite its clock design. There were some minor differences, but those differences might not have stood up to review if the railroad went to court.

[ Read Beyond The iPhone, Why Apple Sues Samsung. ]

I've been in Swiss train stations and find very little that Apple is likely to want to borrow in the way of design ideas. But I have to concede, when placed side by side, Apple's hash marks around the perimeter and the red second hand in the iOS 6 clock application do look a lot like the Swiss clock. The giveaway is the circular pointer, a big, floating, red dot at the end of the second hand. It suggests some sort of railroad signal. Maybe that's why the Swiss adopted it for use in its train station time keepers.

If you shrink that clock face down to the size of an icon, the simplicity of the design still stands out. I believe Apple would only use someone else's design because so many people are trying to steal its intellectual property. When you use a distinctive design like the Swiss clock face, it makes it easier to point out to a jury that somebody is ripping off your design. That's probably why Apple copied the Swiss.

Wait, I didn't mean to say that. Samsung copies, Apple doesn't. Apple's not been convicted of anything by a jury, even if a clever Swiss attorney could make up a color graphic that makes the two clock faces look exactly the same.

The dimensions of my dismay were raised further earlier this week when Apple went ahead and settled for a secret amount with the Swiss rail corporation. Think of it. Apple's future R&D has been diminished by a nation of outmoded, cottage-bound watch repairers who have never been to California. Do the Swiss really think they invented the clock face? They certainly did not.

Just a short while ago, I remember another clock issue on the docket. Apple in U.S. District Court showed the jury how Samsung's clock icon resembled its iPhone icon. That was like a slowly tightening noose around Samsung's neck. Any member of the jury could see the similarity between the two. The noose was tightened further when Apple illustrated how Samsung had used the handset phone image once found on AT&T phone booths. Apple used it first; Samsung shouldn't have copied.

Still, it all seemed a little confusing. AT&T originated the image but Apple was suing Samsung because its phone icon looked too much like Apple's. I set about researching this issue, trying to clear up when Apple's elevated design sense allowed it to engage in copying, while copying by others was of the guilty kind. The jury had figured this out. Why couldn't I?

It wasn't easy. As you comb through Walter Isaacson's biography of Steve Jobs, you come across instance after instance where Jobs picked up a good idea from someone else and copied it. Often times, he fit a good design idea into an Apple product that became a commercial success, something that the originators of the idea might have failed to do.

The ideas were sometimes just someone else's design details. For example, Jobs was fond of the leather stitching found in his Gulfstream jet, and he insisted an identical pattern be used as the faux stitching portrayed in the iCal calendar application. But sometimes this process of making a commercial success out of someone else's idea got confused with originating the idea itself. In that case, Apple not only collected the profits on the product but asserted ownership of the ideas as well.

Xerox Parc, for example, produced a breakthrough set of ideas for a new user interface, based on using graphical elements powered by a user's mouse. Jobs toured Parc and became excited by the UI's prospects. Later, a team of Apple engineers toured the facility and came away just as enthusiastic. They went on to produce the Macintosh user interface based on visual elements, powered by a mouse.

At the time, Microsoft was producing software for Apple, and Jobs and Bill Gates had struck a deal where Microsoft would produce software for the Mac and leave Apple a year's lead time, before bringing windowing software out for the IBM PC. But the Mac was late and the year was nearly up when the Mac finally launched. Soon, Microsoft Windows was available in the market as well, and Jobs took offense that Microsoft dared to produce a competitor, although Gates had lived up to their agreed timetable.

Furious, Jobs summoned him to Cupertino and confronted him in his conference room, "surrounded by 10 Apple employees eager to watch their boss assail him," according to Jobs' biographer, Isaacson. It was during the period when Jobs was known for his volcanic temper. "You're ripping us off," he shouted. "I trusted you, and now you're stealing from us," Jobs said. Thirty years later, he would still tell Isaacson, "They ripped us off completely because Gates has no shame."

But Gates knew where the graphical user interface had originated. With Apple employees looking on, he advised Jobs: "I think it's more like we had this rich neighbor named Xerox and I broke into his house to steal the TV set and found out that you already stolen it."

So did Apple copy the Swiss Railroad clock or didn't it? During the trial, Apple didn't accept Samsung's explanation that internationally recognized symbols, such as the Ma Bell phone, make good user icons and should be available to all. But Apple has been caught doing something similar, recognizing a useful icon in a design that it now concedes belongs to the Swiss Federal Railway. The amount of payment wasn't disclosed. But I hope it was more than a slap on the wrist.

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