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Judge Koh hands Apple another gift

Samsung Electronics Comp., Ltd.'s (KSC:005930) capability to defend itself from Apple, Inc.'s (AAPL) design intellectual property was further weakened on Thursday when Judge Lucy Koh of the U.S. District Court for the Northern District of California (San Jose/San Francisco) ruled that Samsung could not use designs from science fiction works to prove invalidity (via prior art) of Apple's design patents.

I. Sci-Fi Props Not Valid for Design Patent Invalidation

Apple is claiming that a series of design patents on the iPad and iPhone -- U.S. Design Patent No. D618,677D593,087, and D504,889 -- grant it exclusive rights to produce rectangular (with-rounded edges) touchscreen devices with a "minimalist" number of buttons.  Note, the patents themselves have little text, so much of the validity debate revolves around the validity/invalidity of Apple's interpretation of ubiquitous design rights, which is not explicitly stated in the patents.

Samsung has questioned Apple's rights to "patent shapes".  But it's unclear whether Samsung's legal team will be capable of invalidating Apple's patents.  

The iPad looks very similar to designs seen in the movie 2001: A Space Odyssey and the fan-favorite science fiction series Star Trek: The Next Generation. Both fictional visual depiction predated Apple's 2004 patent by over a decade.

2001: A Space Odyssey poster2001 tablets
2001: A Space Odyssey "tablets" [Image Source: Stanley Kubrick/MGM]

Geordi tabletStar Trek
Star Trek tablets [Image Source: Gene Roddenberry/Paramount]

Judge Koh said pre-existing fictional works were not valid pieces of evidence to use in proving invalidity of design patents.  

Sources reporting on the decision did not mention why the judge considered this invalid.  One clear implication is that if the decision is upheld it essentially gives commercials firms open season to make real-life devices based on fictional products.  For example, if a company made the iconic "golden snitch" of the Harry Potter universe, it could repatent the existing visual depiction under a new design patent and J.K. Rowling could not invalidate that patent.

II. Alternate Routes to Escaping Apple's Design Claims

Judge Koh did allow Samsung to use at least two real-world prototype or commercial design that could be integral in proving prior art.

The first allowed display is a Hewlett-Packard Comp. (HPQ) tablet -- the Compaq TC1000 -- which debuted in 2002, two years before the iPad patent.  That tablet had a minimalist design, like the iPad's.

HP TC1000
The Compaq TC-1000 (2002) [Image Source:]

Also allowed was photographs of Roger Fidler tablet prototype which he produced for media company Knight-Ridder.

Fidler with tablets
The iPad (2010, left) versus the Knight-Ridder prototype (1994, right)
[Image Source: Grant Hindsley/The Washington Post]

Without its phone-space prior art (which Judge Koh banned for being "too late") and without the sci-fi prior art, Samsung faces a tougher struggle as it must rely more heavily on the handful of allowed possible prior art examples.

There's some hope that Apple may win on validity and evidence exclusion, but still lose on design infringement.  To win on design infringement, the jury must accept Apple's argument that the images in its design patent allow it to patent a certain shape of electronic device.

In theory, Samsung's lawyers could acknowledge the validity of Apple's design patent, be unable to show the full history of their device development, but still argue their device did not infringe based on other factors.  

For example, it could argue that it was invalid to patent shapes.  If it can convince the jury, all it has to do to avoid design infringement is to show that there's substantial visual differences between the iPad and Galaxy Tab and between the iPhone and Galaxy Nexus (or other phones in question).  Again, whether the design differences are sufficient to escape infringement is a subjective argument, but when viewed clearly (e.g. at a distance where you can distinguish features) Apple and Samsung's products are easily distinguished.

And it's important to remember that design is just one part of the two company's infringement claims.

III. Editorial: The Big Picture and Why If Either Side Wins, You Lose

Samsung has patented standards technologies, and is legally obligated to license Apple those patents at a "fair" rate, but is trying to shirk those responsibilities and license them at an inflated rate.  

And Apple is also suing Samsung on technology patents that cover a number of trivial graphical features.  

There's great danger in terms of future precedent if either side wins on any of its major claims.  If Apple's design claims are upheld, it offers a slippery slope by which companies can patent certain shapes in certain sectors and gain an artificial government-enforced monopoly.  If Apple's technology claims are upheld, there could be a rash of patenting and key sectors of the economy like websites (which share common algorithms and visual features) and software (which again are programmatically similar and visually similar) could be destroyed, with only a few patent-rich survivors left standing.

And if Samsung's technology claims were validated to the extent it wants them to be, the concept of affordable licensing of standards patents would be lost.  This, too, is an undesirable outcome.

Video gamer
Depending on who wins, tech standards could be badly damaged or the internet/software (e.g. games) market could be destroyed, based on the fact that both companies' objective seemingly rely on abuse of the intellectual property system. [Image Source: BuyPoe]

The case is very significant as Apple and Samsung are two of the biggest companies in the world, so this in a sense is a very precedent-setting case.

In other words if either side achieves total victory, consumers essentially lose.  Conversely, the only way consumers win is if both sides lose, at least to some extent.

Thus this is an important case to watch very carefully as the two sides battle in court, as the outcome could effect your choice of future products, perhaps well beyond the smartphone space, even.

Source: All Things D

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RE: My Patent
By retrospooty on 8/3/2012 8:39:27 PM , Rating: 5
"What gets me are not those who say they prefer Android or Samsung to Apple, not even those that say copying Apple is OK, it's those who show such intellectual cowardice that they pretend to think that Samsung did not try to copy Apple's products"

What amazes me is that people like you consistently miss the point altogether. Its not that Samsung did or didnt copy Apple, because to an extent they did. They were very obvious about the Samsung logo, but clearly Apple influenced alot of products with the original iPhone... Here is the part you (pretend to?) miss. Apple copied other companies to create the iPhone. Apple copies others now as well. ALL companies do this.

Apple copied the Psion and built on it and made the Newton. Palm copied Apple and built on it to create the Pilot. Handpring split from Palm and built on the Palm Pilot to create the Treo smartphone (then later re-merged). Apple copied Palm's Treo and built on it (adding a great multitouch UI and OS) to create the iPhone. Google copied the iPhone to create Android. Today, Apple copies Android's features in its latest iPhone. ALL companies do this and always have. Not just tech, but in all industries. Who survives? The company that can build the best product and/or offer the best product for the price. This is called competition and is the base for business on planet Earth and has been since the dawn of civilization . Somehow Apple thinks they are above it all and THAT is what pisses everyone off these days.

Before you start with Apple didnt copy Android, I will repost a list (courtesy of reclaimer) of things that Apple copied from Android.

1. The revolutionary notification center of Android was a part of it from day one, nobody had done notifications like that before and eventually the competitors had to give in and adopt a similar style.

2. Over the air updates - now a standard throughout all platforms in the world this was something introduced by google from day one.

3. Widgets, Android first, copied by others later.

4. Free turn by turn navigation, once again something that we now see is being copied by competitors.

5. Social network integration - once again now a standard for all platforms!!

6. Multitasking. It took iOS three years to finally do multitasking, and it's still not on par with Android.

7. Drop Down Notifications - Android first, blatantly copied by Apple in iOS 5

8. Wireless Syncing - There are several Android apps out there that let you sync your music, movies, contacts, etc. with your computer over your home's Wi-Fi connection. And they've been around almost since Android's beginning. The iPhone finally got sync with iTunes wirelessly iOS 5.

9. Opening apps from the lock screen - Android skins like HTC's sense have allowed that for years. Another iOS 5 feature stolen from Google

10. Custom Wallpapers - For the first three years of the iPhone's existence, you were stuck with the plain black background on their home screens. (Unless they jailbroke, of course.) It wasn't until the 2010 launch of iOS 4 on the 3GS and iPhone 4 that you could finally choose any photo you wanted for your background. Meanwhile, Android phones have had customizable backgrounds long before iPhone. Android phones also allow animated wallpapers.

11. Voice Recognition - Google Voice was built into Android WAY before Siri came along.

Apple is suing for vague concepts and manipulations of a flawed patent system... Its not like they invented the smartphone. All they were is first to market with a multitouch UI... yes it was great, yes it made smartphones alot funner to use. That was a great thing, now let the competition begin... And you Tony need to gain some perspective.

"What also astonishes me is how many Americans have become so deranged that they actually support a Korean company ripping of an American company."

Wrong is wrong and blindly supporting wrong due to nationality is just rediculous. That's kind of like Germany in the 30's.

RE: My Patent
By Avatar28 on 8/3/2012 10:03:13 PM , Rating: 4
Android wasn't even the first with all of those. Not saying MS was first with any of these either but they had it before Android.
6) Multitasking - was present in Windows Mobile even before Android
8) Wireless syncing - Zune did it first. As far as I know they WERE the first to do that.
10) Custom wallpapers - Windows Mobile had this from pretty much the beginning
11) Voice Recognition - Voice Command was available before and was pretty much standard on a lot of phones by the time WM 6.0 came out.

That all really just reinforces your point even more though. ALL companies copy. That's what drives evolution of technology. Someone has a good idea, someone else sees it and tries to make it better.

RE: My Patent
By retrospooty on 8/3/2012 10:36:50 PM , Rating: 3
"That all really just reinforces your point even more though. ALL companies copy. That's what drives evolution of technology. Someone has a good idea, someone else sees it and tries to make it better."

Exactly... Companies copy what works... And even though some of that list existed before Android, Apple sees Android catching up, then surpassing it in features, and then in sales and Apple copies. I have no problem with it, it is how business has always been done... Like I said - The company that can build the best product and/or offer the best product for the price. This is called competition and is the base for business on planet Earth and has been since the dawn of civilization .

For Apple to think they are above it is the most hippocritical thing I have ever seen.

RE: My Patent
By Reclaimer77 on 8/4/2012 11:09:13 AM , Rating: 2
Windows Mobile, wtf?

You understand the context here is Apple vs. Google right?

And I think Windows Mobile was more instructive as to how to NOT do things as apposed to what it did right.

RE: My Patent
By spamreader1 on 8/6/2012 9:46:06 AM , Rating: 2
I'm pretty sure his point was prior art.

RE: My Patent
By robinthakur on 8/6/2012 8:04:59 AM , Rating: 2
I think that at the root of this, you need to look at the way Samsung and all the phone companies were completely left behind by the iPhone in 2007. From my recollection, nothing came close to the iPhone in terms of usability or look and feel until the galaxy s which looked surprisingly like an iPhone, Apple would say too close for comfort, and in the intervening time, all handset manufacturers lost out to the iPhone significantly. Galaxy s looked like an iPhone it terms of its exterior and also in terms of the way the operating system was laid out. Obviously, in terms of usability, it was nowhere near as smooth or stable, but I could well believe that some people who were not as well read about phones would have purchased one in error thinking it was a kind of iPhone. From then on, Samsung have deliberately aped the design of the iPhone and the packaging.

The same was true with the iPad. Before it came out, you will recollect that everybody thought it would be a massive flop and described it as a big iPod touch. Now after it launched and was a huge success, Samsung entered the market with the tab and then the full sized 10" one. I really don't see it as a stretch to say that the tablet market, let alone those products would not exist without Apple.

I am not loyal to any one firm and have at times used an Android phone along with Apple's devices, but I really don't think you should be defending Samsung of all the firms. Samsung are a cut throat organisational behemoth in a great many industries and are utterly ruthless. Many of their business practices are unsavoury and would be illegal if they did the same thing outside Korea. Their aim of beating the iPhone at its own game did not consider things like intellectual property because firms from the far east do not operate on the same assumptions to do with ownership of IP as we do in the west.

Samsung copied Apple because it realised that Apple trades on the look and feel as well as intangibles like brand appeal and packaging, and since nobody in the phone space had ever sued somebody else for IP violation so they thought they were safe to copy. This was likely born out of frustration that it's products were being overlooked, but this certainly doesn't make it right. I'm sure I'm not alone in thinking back around the time of the Omnia and later the Galaxy S "How on earth are they getting away with this?!?".

This issue is not so bad now with the Galaxy 3 IMO as it does look substantially different to the iPhone (some would say better) but the point on the earlier devices still stands, and you could argue that Samsung's current popularity was built on their earlier success. If Apple has an issue with the OS, then it should just sue Google, frankly but then Apple has nicked parts of the google OS such as notification centre, so they don't really have a leg to stand on.

RE: My Patent
By retrospooty on 8/6/2012 8:16:27 AM , Rating: 3
Like I said... Companies copy what works. This is called competition and is the base for business on planet Earth and has been since the dawn of civilization.

Apply the same thing to cars. Should we all be stuck with only Ford's, because everyone copied the car and manufacturing process they built hte model T with. NO, that isnt how anything has ever worked on this planet. Someone came out with power windows and everyone copied. Someone came out with ABS and everyone copied. Someone came out with the auto transmission and everyone copied (etc etc.)

I would argue that Apple copying Palm putting a mobile OS and app ecosystem on a phone with internet access was FAR more of a blatant copy than simply adding a multitouch UI to that phone with internet access, a mobile OS and app ecosystem. Think about that.

RE: My Patent
By myleftnutishuge on 8/6/2012 11:57:18 AM , Rating: 2
And his point about Apple being way ahead of anything else with the iPhone in 2007...that's true. And that's why Apple made tens of billions of dollars between then and now. But eventually, they need to keep innovating and stay ahead of the curve. I would argue that the iPhone and iOS hasn't improved that much since 2007 while various Android devices (such as the GS3) have closed the gap and even moved ahead in some significant ways.

The only point I disagree with is that all companies copy. Only good companies copy. Great companies steal. Duh.

RE: My Patent
By retrospooty on 8/6/2012 4:56:03 PM , Rating: 2
" Only good companies copy. Great companies steal. "

That's right, and they are "shameless" about it ;)

“So far we have not seen a single Android device that does not infringe on our patents." -- Microsoft General Counsel Brad Smith

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