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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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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.
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!
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!
Devil's Advocate
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Devil's Advocate,
User Rank: Apprentice
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.
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.
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
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.
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.
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.
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.
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