iPhone

Apple vs Samsung: Time to fix this patent farce

Forget the Apple vs Samsung courtroom drama: what really should be on trial is the broken nature of patents and the so-called intellectual property industry.

The iPhone is an elegant synthesis of older ideas and technologies, many of which were developed and patented by other firms. Photo: Apple

Steve Jobs wasn't a fan of Android. He thought it was a rip-off of the iPhone. He saw the iPhone as a ground-breaker and Android as an attempt by Google and a consortium of device manufacturers to bring a similar product to a wider market.

But Android had been under development since 2003 and was purchased by Google in 2005, two years before the advent of the iPhone. Granted, its later development was undoubtedly influenced by the range of features incorporated in the iPhone, and the potential and scope of Nokia's Maemo project.

Jobs saw it as more than that. He famously told his biographer Walter Isaacson that he would "spend my last dying breath if I need to" and "every penny of Apple's $40bn in the bank" to right the perceived wrong done to Apple by Google. "I'm going to destroy Android," he pronounced, "because it's a stolen product...".

Jobs' quest led indirectly to the decision of a US court to award Apple $1bn in damages, and to place an injunction on Samsung distributing some of its product in the US.

But the case was merely the latest performance of a travelling roadshow that has made appearances in courts from South Korea to California, and involves claim and counter claim about the theft and ownership of the ideas and look and feel of a smartphone or a touch pad.

Pre-iPhone smartphones and touchpads

Theft is an emotional concept and technology is a complex proving ground. The iPhone is an elegant synthesis of intricate ideas and technologies that had gone before, many of them originally developed, patented and supplied by companies such as Samsung and Motorola - now owned by Google. Smartphones and touchpads existed before the iPhone.

Samsung says it has spent billions on research into mobile technologies over the past 25 years and noted in its own submissions to the court that "the flash memory, main memory, and application processor for the iPhone" are supplied by Samsung.

It said it "also manufactures Apple's A5X processor and is the sole supplier of the Retina display used in the new iPad". It also initiated many of the wireless standards and technologies that make it possible for an iPhone to talk to other phones.

Apple's distinctive contribution has been collation and design, derived from an understanding of why and how a smartphone could and would be useful and attractive to an end user, and which features would enhance that effect.

Apple has made geek toys, in the shape of the iPod, the iPhone and the iPad, accessible to the masses - and has managed the trick of transforming these toys into both useful accessories of everyday life and objects of desire to those who feel the pull.

Apple's debt to 1960s Braun

Many of Jonathan Ive's designs for Apple draw on the work of Dieter Rams for Braun in the 1960s. The iPod, iPhone and iPad are instantly recognisable for their cleanliness and simplicity - and the software is focused on simplifying the tasks of the end user.

Apple's talent has been to transform utility into an art form, to reduce apparent complexity and anticipate the wants of the user.

Apple has understood that elegance is as important as utility, and has traded on the style and excellence of its products - so an iPod, an iPhone or and iPad is not only hard wearing and useful but is also a desirable accessory for which some kinds of user are willing to queue and pay a premium.

By collating the possibilities of the smartphone, and pulling together the virtues of design and utility, Apple has lifted the concept of smart devices to browse the web from geek heaven into user space, which makes it all the more surprising how little attention other device and computer manufacturers have paid to the role of design in selling hardware.

Rams' explanation is that "good design can normally only emerge if there is a strong relationship between an entrepreneur and the head of design. At Apple this situation existed - between Steve Jobs and Jony Ive."

"Apple has managed to achieve what I never achieved," he observed, "using the power of their products to persuade people to queue to buy them. For me, I had to queue to receive food at the end of World War II...".

Polish, shine and intellectual property

But the bigger issue isn't copying, or imitation, but the broken nature of the patent and so-called intellectual property industries.

In an industry where last year's must-have is already out of date, there is something obscene about a court case that involves, among other things, a dispute about patents and design registrations such as the one "for overall design of the product, including the rectangular shape, the rounded corners, the silver edges, the black face, and the display of 16 colorful icons".

Or the one "for the configuration of a rectangular handheld mobile digital electronic device with rounded corners". These are not technological or design innovations. They are the polish and shine of a product, and are also obvious.

Strenuous tests of originality

In theory, patents or design registrations are granted only after strenuous tests of originality and appropriateness have been met, and should only be conferred on inventions that are entirely original, are not obvious, and have the potential to transform the way things are done.

In practice, there has been a proliferation of trivial and contestable patents over the past three decades, especially software and method patents, triggered by a relaxation of the rules by the United States Patent and Trademark Office (USPTO), which has progressively lowered the bar for patent and other intellectual property claims.

The decision of the court to punish Samsung for its intrusion into the markets Apple considers its own, and in the words of Samsung's press release "to give one company a monopoly over rectangles with rounded corners, or technology that is being improved every day by Samsung and other companies" is symptomatic of the ongoing crisis in the creative and technological industries.

Innovation and competition are subservient to the ownership of the expression of ideas.

Good design captures the Zeitgeist, and sometimes leads the way in forming and informing popular taste. But it should not be the subject of patent or intellectual property spats, or be allowed to spread the notion that the rights to ideas and tastes or look and feel can be owned.

When one company, or one technology, is allowed to lock down the market and own the way we do things, the result is ossification.

The end-game

The decision against Samsung is just the latest event in the war. It is bad news for everybody, not least the users and developers of Android and the iPhone, as each of these companies scrambles to buy up the ownership of patents.

As Google's chief legal officer, David Drummond, put it last year: "A smartphone might involve as many as 250,000 largely questionable patent claims, and our competitors want to impose a tax for these dubious patents that makes Android devices more expensive for consumers. They want to make it harder for manufacturers to sell Android devices. Instead of competing by building new features or devices, they are fighting through litigation."

The more likely outcome is the squandering of billions of dollars on years of endless litigation and counter litigation, by which time the iPad, iOS and Android may be a distant memory and will look as good as the fashions and designs of the seventies. Innovators win by staying one step ahead of the competition, not by fighting in the bike shed.

About

Richard Hillesley is a writer focusing on Linux, free software and digital rights. He was a software engineer for 17 years and is a former editor of LinuxUser magazine.

57 comments
goldenegg12
goldenegg12

I interviewed a professor at China Europe Business School who feels that in this court case Apple sent clear warning shots at competitors which may change the pattern and pace of innovation. http://www.businessbecause.com/news/mba-faculty/1725/apple-samsung-ceibs Do you think this will slow down innovation, if companies have to worry about coming up with entirely new products rather than building on the existing ones?

warrickj
warrickj

Apple patented a design, just like Coco Channel did with handbags (with the interlocking C's) Channel didn't say no one can make a handbag, nor did they invent the concept, they just patented their design. Likewise Apple patented their design. For all you trolls out there that don't want to think, Apple protected their design - which yes, included rounded corners on a rectangle, but also included a button at the bottom, a speaker at the top, and glass wall to wall. Simple... don't copy, get your own

ian.morris
ian.morris

Can a tech tribunal of tech experts not be set up to meditate on clashes. Against an agreed system 1. who owns what patents 2. what are the rules for shared tech.... etc etc A way to protect design innovation yet not stop advance of technology.

aflynnhpg
aflynnhpg

Richard. This is one of the best articles I have read on this topic. Just wanted to give you props for a job well done! What happens when this type of behavior starts spreading to other manufacturing area's? Are we going to see patents for cars with 4 wheels? Or patents for clocks with round shapes? Where will it end?

lhallett51
lhallett51

I am going to apply for a patent on how to drink water! Apple that head!

kelskye
kelskye

I could understand Apple's concerns if they had developed processes that Google developers had injected into Android without successfully reverse engineering. But patenting aspects of a look and feel aren't really much. It would be like Sony suing every other TV manufacturer for copying them using a metallic grey casing for TVs. If it can be achieved without even needing to reverse engineer... As a consumer, it does disturb me when the legal system is being used as a market strategy. There's no victory for the consumer in this - if nothing else we have to worry about legal fees as part of the overall cost - as now we have to be concerned about any product we buy being at the whims of whoever won the race to the patent office and has the legal muscle to enforce it. And Apple's uncompromising stance to take products off the market instead of taking royalty fees is downright anti-competitive - they already have the biggest market share with their product and damn good marketing strategies, what other competitive edge do they need?

jonathan_alvarez
jonathan_alvarez

The real problem is why the United States Patent and Trademark Office (USPTO) allow to patent a rectangular form device and other simple stuffs? -“for overall design of the product, including the rectangular shape, the rounded corners, the silver edges, the black face, and the display of 16 colorful icons”. -“for the configuration of a rectangular handheld mobile digital electronic device with rounded corners”. Ask to the real great inventors like T.A. Edison (of course you can not ask him as he is dead, but you got my point) how to patent a good idea or a bad one. Soon someone will patent the boiling water and sue all the world. Bugger all.

rustys
rustys

Every time those twits at Apple lodge another frivolous claim .... fine them a billion. The fact of the matter is that most parts or design ideas in the iAnything have been stolen from someone else - much like a lot of the original Apple computer .... hell, the name and the logo were direct rip-offs from Apple records as far as I can see.

ePractical
ePractical

This should be fought out in the market - allowing the users to get the benefit. We need new Intellectual Property laws and much better Patent laws to enhance innovation - not the opposite as they allow now. The courts should not allow companies to use patents to limit competition either. Samsung - Get some nerve and stop supplying Apple with the display and many key components in the iPhone if they won't cooperate. Apple (and ALL) - stop trying to lock up basic functionality and things like a rectangular shape. And Samsung (and ALL) - use a little more imagination to enhance designs you find useful. We still need MUCH better UIs and functionality (esp pointed at productivity in mobile devices)..

da philster
da philster

Can't recall anything ever being invented or improved by a bunch of lawyers. This litigation game will end up costing everyone in the end. Interesting times indeed.

jonc2011
jonc2011

Just like its home country is the bully boy of world trade and politics. Microsoft was once in a similar category, but at least on the surface seems to now have a more benign image. I am hoping that the connectivity and power of open source will ultimately defeat the evil apple empire.

katrash_
katrash_

Does anyone remember a few years ago the case against RIM which granted a US company over half a billion dollars in damages plus royalties. The same (or closely similar) here with Samsung. I think the court's ruling in favor of Apple is that it is an American company. I doubt any thing will be against Apple and in favor of Samsung even if the latter has the necessary patents. IMO, if Google (another US company) goes against Apple, we might see something against Apple at last.

john.ballantyne
john.ballantyne

I always thought a rectangle was a stupid design for a phone. You can't balance it on your shoulder and my wife's cheek keeps hanging up on anyone she's talking to (I still use a flip-phone). I don't think these things mentioned should be patentable, afterall, who won the patent for the miniskirt? I'm sure Steve Jobs was proud of his product, and he had every right to be. But for the iPhone to be the prototype for all smartphones, and winning a patent dispute over the color of the bezel? C'mon!

mkottman
mkottman

This is typical of the trash that so many journalists are spouting about patents. It's wrong. Not because I'm an Apple fan but because they are wrong on the facts. When companies do the hard work to innovate, which undeniably Apple did with the iPhone, they should be able to recoup their investment without knock-offs stealing their market. Clearly Samsung had the technology to create the their current product line before Apple created the iPhone; they didn't. The fact that Samsung makes many of the technical components that make up the iPhone has no relevance to the fact that Apple combined those components in a unique and useful way to make the iPhone. The fact that Samsung then took those same components to rip off the iPhone design makes them even more despicable because they have violated the trust that OEM companies must have in their suppliers. There is nothing worse, in any industry, than a supplier that decides to bypass the OEM and go to market directly. Often, and certainly in this case, the supplier uses the design and market information that they learned from the OEM to undercut the very OEM that was buying the components. The only reason that Samsung is still a supplier to Apple is that their components are necessary for the iPhone, and many of them are protected by Samsung's own patents. If I had the time I would address each of the writer's arguments individually, but unfortunately I'm not a journalist and I have a real job to get back to.

Deadly Ernest
Deadly Ernest

The US law Apple used is only relevant if the product is sold in the USA, and the same cases on the same issues in other courts went the other way. Thus a company can avoid this complication of the US laws by simply NOT selling a product they're concerned about in the US markets. If the 'offending' product is not sold in the US, then a US company can not use the US laws to sue them over it. If a company has concerns, they need only have the product marked for sale on their non USA website as 'not for sale in the USA' and they can't be touched. They should also include a link to a page explaining why it's not for sale in the USA. Mind you, that won't stop US people from buying them from retailers and having them shipped to them personally. The real crunch in this system will be with products that are useful to the US business that failure to have could affect their stand in the world markets.

Deadly Ernest
Deadly Ernest

also a basic design of nature. Next you'll say it's OK for companies to patent standard genetic material that already exists. Face it, Apple has used a fault in the USPTO system that allows people to get patents for BS and natural items. It just shows what thieving bullies Apple are and how stupid the US patent system is.

HAL 9000
HAL 9000

Is another thing that Apple wants royalties for. Just imagine it a Sex Tax from Apple. :^0 Col

da philster
da philster

What would be the royalty structure for laughing at something humorous ......... ?

mkottman
mkottman

Look it up, they are different from a regular patent. You cannot copy a design and it is the same for the iPhone as it is for the shape of a fork or spoon, or car, or chair, or anything else. You could also patent a round phone if you want, and that design is probably still available.

mkottman
mkottman

You can't enhance innovation by allowing copying. If Samsung can freely copy Apple, how is that innovation? Let them innovate by creating a better smart phone. Before the iPhone everyone would have argued that the Blackberry was the pinnacle of smart phone design, and it was not possible to create a phone with a different layout of keyboard and screen that would work. That Apple was able to turn that 180° in such a short time is a truly remarkable. Look at Samsung's product line before and after the iPhone. It changes from a bunch of Blackberry rip offs to a bunch of iPhone rip offs. They didn't innovate anything before or after the iPhone. How is that enhancing innovation?

Barry ZA
Barry ZA

are the lawyers. The consumer is not a winner, the cost of making the lawyers rich is the next iteration of the product.

mkottman
mkottman

I'm not saying that Apple won't lose it's current place atop the heap, I'm sure it will, just as IBM, DEC, Microsoft, and many other companies have risen and fallen. One thing is nearly certain and that for all the good points of open source, it will not supplant corporations. It's just not capable.

mkottman
mkottman

It's a design patent, that's what they do, protect the appearance against copies. The real question is why did Samsung copy this design if it has so many obvious shortcomings?

Deadly Ernest
Deadly Ernest

NOT invent the concept of a rectangle with rounded edges, which is a major cornerstone of the case. The same is true of over half the items in the patents. They got away with shotgun patents, which should never have been accepted.

david
david

it would make your rather long post more credible if you actually did address at least a couple of the writer's errors. At the moment without doing so you do sound like a fan boy. I would be very interested to learn more on this issue, can you at least list the errors?

bboyd
bboyd

And the key patent was the one which Samsung refers to, a very vague patent that never could have existed prior to the recent low bar set by USPTO. Prior art seems to have been lost on them. If the case had hinged on trademark, copyright or US commercial code, Apple may have still won, it would have been a far different ruling for Samsung. Never mind the broken nature of a lot of those topics.

mkottman
mkottman

That's why Samsung was not able to prove a pre-existing design that invalidates Apple's patent. It is not JUST a rectangle with rounded corners, it also includes a single button at the bottom, a speaker at the top and glass wall to wall. What phone existed prior to the iPhone with a single button on the face?

mkottman
mkottman

because Apple has a reason to invest in the development of a phone that changes the world. Samsung has a reason to develop a better one rather than just copy Apple. If Apple didn't think they could protect their market after developing the iPhone then we would likely all still be using versions of the Blackberry, or flip phones. I don't understand how providing an incentive for companies to develop innovative products is a bad thing.

rhonin
rhonin

There is exact, close, not so close, in the area, in the neighborhood, nothing alike, etc.... Where does the "patent" line lie? Apple's behavior leans toward "in the area". Personally I think that is too broad.

mkottman
mkottman

Actually quite the opposite of shotgun patents, the Apple patent on the rectangle with rounded edges is quite narrow. Samsung could do a rectangle with rounded edges, IF they didn't also copy all of the other associated features, like a single home button in the middle on the bottom, edge to edge glass, etc. OF COURSE they didn't invent a rectangle with rounded corners, but they did invent a phone that used a rectangle with rounded corners as one of the major design elements along with a number of other design features which were ALL copied by Samsung.

mkottman
mkottman

Rectangle with rounded corners - this is a DESIGN patent issue, which is quite different than other patents. You can patent any design as long it has not been done exactly the same before. So yes, a cell phone that is a rectangle with rounded corners, a centered screen, a speaker at one end and a single button at the other end is definitely patentable, as long as no one has done it before. A design patent is only concerned about the physical appearance. Yes, rounded rectangles existed prior to the iPhone, but they didn't patent rounded rectangles no matter what the press says. Tune in again tomorrow and I may indulge you with more of my clear thinking.

wdewey@cityofsalem.net
wdewey@cityofsalem.net

Trademark, or copyright or US commercial code, not patent. I am curious if the price of the retina displays went up after Apple won the patent claim. It seems kind of counter productive to sue one of your major suppliers especially when they produce the most marketed feature of your current product. Bill Edited to add second paragraph.

mkottman
mkottman

Then why don't you Google up an image of a cell phone prior to the iPhone's introduction that looks like it? Just post the link to the image here.

HAL 9000
HAL 9000

Star Trek Original Series it's OK? I looked at a Old Brick from Motorola today and guess what it's a Rectangle with Rounded Corners and it's a Phone. Not really sure how else you make them and keep them small enough to be what they are. ;) [i]edited to add[/I] I should also mention if you where a business and attempted to introduce a Rectangular device without rounded corners in anything that your staff used OHS and the Workers Compensation Lawyers would have a field day preventing you and suing you for injury. The entire concept is silly as just about every device we use today be it a Cell Phone or Calculator is a rectangle with rounded corners. Have a look on your desk right now and see how many straight rectangles you have there without rounded corners. I can answer that very easily [b]NONE.[/b] Col

mkottman
mkottman

The design patent is for a PHONE. As such it doesn't cover TVs, notebooks, etc. I know the press has really pushed the idea that Apple patented a shape, but that simply is not true.

mkottman
mkottman

You may not realize it but you hit the nail on the head. A design patent is nearly the same as a trademark BUT for physical objects. I suppose they could have extended trademarks to encompass design patents, but they didn't, they instead created design patents.

HAL 9000
HAL 9000

Every Note Book and for that matter every TV is a Rectangle shape with Rounded Corners so does this mean that They should be paying Royalties to Apple? The entire thing is as stupid as Patenting Animal Shaped Buildings which is another thing that the US Patent Office allowed. Col

SKDTech
SKDTech

"Design" patents should not exist unless the design is integral to a function. I was watching an episode of some show where people get help filing patents and one of the people on that show was seeking a design patent on engraving a certain portion of glassware as that had a function, ie. it affected the release of the bouquet in brandy or wine(I forget exactly). That would be a worthy design patent in my book as the design itself has a function. At best, the round-cornered rectangle of smartphone design is nothing more than a convenient package shape for containing components and considering every smartphone has followed that paradigm since before the first iPhone... Heck even non-smartphones have been using that design paradigm for years. If it is not integral to a function then it should be relegated to trademark which is meant to protect images and such.

Deadly Ernest
Deadly Ernest

belonging to another, feel free. It's not something I do or promote - use another's copyright that is. But you're free to hire any of the Star Trek series shows O mentioned on DVD and watch closely what they walk around with, hand about, and use.

mkottman
mkottman

Then why don't you Google up an image prior to the iPhone's introduction that looks like it? Just post the link to the image here. As to the validity of a design patent, a description in a book is not considered prior art, I don't believe. Props from TV shows might be, although I'm not certain since they aren't really a functioning product. Apples patent covers phones, music players, etc. and not props. Even so, I've seen the communicators and they typically look more like a flip phone than an iPhone. Again, link to an image that you think looks like an iPhone.

Deadly Ernest
Deadly Ernest

Star Trek the Next Generation or Star trek Voyager, even some of the original Star trek episodes have a communicator that fits the description by Apple. Also take time out to read any of the books by Isaac Asimov, Robert Heinlein, Poul Anderson, or any of the other great scifi authors who worked with Campbell. Then you may want to look at some of the older Motorolla phones and communications devices and some of the early Nokia ones too.

mkottman
mkottman

unless you can point me to a photo. And before you waste my time, it not only needs to be a rectangle with rounded corners but also have a single home button at the bottom, a speaker slot in the middle of the top and other visual elements as shown in the patent.

Deadly Ernest
Deadly Ernest

of that style, it's been used in movies and books for many decades and the motorolla had one that fits that description over a decade ago, just not as thin.

Deadly Ernest
Deadly Ernest

you steal from others with government support.

HAL 9000
HAL 9000

Or more correctly the way to make it in Commercial Amounts. So the inventors had the unenvious position of having to pay Royalties to a company who they freely gave the idea to under the impression it was for the Betterment of Mankind. Shows just how broken the Patent System actually is where something released in the Public Domain for the benefit of all can be so abused. Col

Deadly Ernest
Deadly Ernest

in future contracts, especially by just cutting back on the discounts they give them.

mkottman
mkottman

typical contracts allow for actual production cost increases, while settlement costs would be an overhead cost. Depending on the exact language of the contract, this would likely not be a reason to increase the price to Apple.

Barry ZA
Barry ZA

surely the contract allows for increased production costs? And having to pay a huge settlement does have a major impact on production costs.

Neon Samurai
Neon Samurai

Samsung will have a contractual obligation to continue providing parts to Apple. Now, once those contracts end, Apple may be screwed on negotiating the new contract terms. On the other hand, can Samsung afford to give up the profits generated by Apple's parts orders.

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