quote: 1) Patents are a quid pro quo. You invest in research and disclose your invention to the public, then the government gives you a 20 year monopoly on that invention if it is new and inventive. This is huge incentive for research. Without patents research investment would plummet because it would be more difficult to profit from the fruits of that investment.
quote: 2) In the US, Apple bears the burden of proving the likelihood of validity and infringement to get a preliminary injunction. Samsung need only show a substantial question about validity of the patent to avoid a preliminary injunction. It should be noted that there are other factors at play that also must be satisfied for a preliminary injunction.
quote: 3) In Germany, and likely other foreign countries, the legality of Apple's design patent is legally presumed for adjudicating a preliminary injunction. This may be challenged, but then Samsung would bear the burden of proof (much more difficult to challenge validity than in the US where Apple bears the burden). Furthermore, it is more likely that design patents will be subject of preliminary injunctions than utility patents in Germany since courts apparently think that irreparable harm is more likely in design patent cases.
quote: In summary, I dislike Apple's products and practices as much as the next man, but in this case substantial blame for the preliminary injunction in Germany should be on the laws of Germany and its courts.
quote: Regarding #1, not directed at the article, more of a general comment. Basically anything under the sun made by man is patentable. Sweat of the brow isn't a requirement for patentability if the invention is new and inventive. It's hard to legislate to protect the complicated machine taking years to design if you aren't also protecting the 5 second conception of a new GUI design. Both should be equally patentable imo.
quote: Regarding #3, Here is the statute: http://oami.europa.eu/ows/rw/resource/documents/RC... Check out article 85.Here is an article written by a German patent attorney:http://patlit.blogspot.com/2011/10/industrial-desi...Here is more commentary: http://mobile.osnews.com/story.php/25056/The-Commu...Germany litigates utlity patent infringement and validity in two separate proceedings. For instance, you can win on infringement and two years later find out you actually lost because the patent was invalid. Not sure if that is the same for designs. In the US it is done all at once for both utility patents and designs.
quote: Bad patents get granted due to the limited time a patent office can invest in examining each one, bad examiner training, etc. It's inevitable. That's why we have the courts to hopefully clear these things up.