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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 Tony Swash on 8/4/2012 9:36:31 AM , Rating: -1
So I think it would be accurate to say that the consensus of those critical of Apple suing Samsung is that 'yes Samsung copied some stuff from Apple but that's OK because everyone does it, Apple does it and that's how things works".

I hope that's an accurate summary of what most people seem to be saying.


But here is the thing - rather than a simple blanket 'it's OK to copy' position surely any reasonable person would have to say 'it's OK to copy within limits'. That there are limits to what is reasonable. The issue surely is where are those limits, who sets them, how are they decided?

It seems to me there are two broad categories where it is not reasonable to copy.

One is where a company comes up with something so unique and new that it becomes the USP for their product and they have patented it. Dyson's system of bagless vacuum cleaners might be a good example of that. In this case if it came to a court case the argument would be around whether the patents were valid and had been infringed.

Another way in which copying would be wrong is if the intention was to confuse consumers and con them into believing they were buying something they were not. As an hypothetical example, if a company, in say Korea, started making jeans that looked just like Diesel's most popular brand of jeans, gave them the same name and labelled them Diesel then that would not be OK, even though all the various bits and components that made up the counterfeit jeans were used by many jean makers and were well established and common components of jeans. Clearly the copying here is wrong. But it gets a bit more difficult when the intention is to confuse the casual consumer but it is done in a clever way, where the copy looks enough like the original to confuse the casual (and I stress the word casual because most consumers are casual) consumer into thinking they are getting A but they are actually getting B.

How could one decide on the gray areas in all this, how can it best be ascertained whether a company has infringed a patent, copied a USP in an unfair way or created a look-a-like product to confuse consumers to such a degree that it should be deemed unfair. I would say the best way is to have the whole thing thrashed out in public, presided over someone with years of experience and training and with no vested interest in the outcome. Say a judge for example. Then get a cross section of ordinary people, let's call them a jury, and let the evidence and opinions from the two sides be presented to them by trained advocates, lets call them lawyers, and then let them them come to conclusion as to whether any unfair copying has taken place.

And that is exactly what is happening. There is nothing wrong or unfair or illegitimate about what is happening in the court case involving Samsung and Apple, it is being done in exactly the way it should.

I hope Apple win, partly because I am a big fan of Apple and indifferent to Samsung's fate as a company, and partly because I think blatant copying and design cloning is bad for innovation. But I am happy to accept whatever the court decides.

I will be disappointed if Apple loses but life, and Apple, will go. And if Samsung loses life, and Android will go on, except Samsung will have to change their product design process. This trial is big but not that big.

Now - back to the Olympics. Did anyone else watch the fantastic 10,000 meters Women's final lat night? Great race.

RE: My Patent
By ihateu3 on 8/5/2012 3:24:36 AM , Rating: 1
So patenting a shape is considered within our limits? Patenting disappearing graphics is within our limits? I see where you are going with this, although your argument loses strength when its only ok for Apple to do this outside these obvious limits to set the standard. Pretty sure if Samsung had patented a shape or disappearing graphics before Apple, you would be calling bullshit...

From your posts you seem half ass intelligent, so it seems that you are purposely biased to dismiss Apples over the top attempt at a monopoly granted through taking advantage of the current legal systems misunderstanding of technologies...

BTW, bias and intelligence are oxymoron's...

RE: My Patent
By retrospooty on 8/5/2012 11:21:54 AM , Rating: 1
"Pretty sure if Samsung had patented a shape or disappearing graphics before Apple, you would be calling bullshit... From your posts you seem half ass intelligent, so it seems that you are purposely biased to dismiss Apples over the top attempt at a monopoly granted through taking advantage of the current legal systems misunderstanding of technologies..."

Yup. Tony is another one... He thinks that [choice that benefits Apple] is > [choice does not benefit Apple] in all situations.

If it were reversed and Apple had a product that looked like Samsung's even though it had a huge APPLE logo printed acrodd the front of it he would be crying foul and saying that any fool could see it's obviously an Apple product, look - it says APPLE right across the front of it.

I do agree with one thing he said, the outcome is pointless and both platforms will go on. Regardless of who wins this case, it will be appealed and go to a higher court where Lucy Koh's choices to keep out key evidence will be irrelevant.

RE: My Patent
By Tony Swash on 8/5/12, Rating: -1
RE: My Patent
By Cheesew1z69 on 8/5/2012 5:56:35 PM , Rating: 2
I personally hope Apple win but I trust the process whatever the outcome.
No one thought differently....

RE: My Patent
By jRaskell on 8/6/2012 4:30:49 PM , Rating: 2
The only fair and sensible way to judge whether limits have been overstepped is in a court of law. Which is precisely what is happeng.

Sorry, but there is rarely anything fair or sensible about what happens in our courts.

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