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Apple Wins in Court; Innovation Loses August 27, 2012

Posted by keithsawyer in Uncategorized.
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Last week a U.S. jury sided with Apple in its patent case against Samsung and awarded Apple $1.05 billion. Robin Feldman, an intellectual property law professor at the University of California Hastings Law School, said this just before the verdict:

“The trial is evidence of a patent system that is out of control. No matter what happens in this trial, I think people will need to step back and ask whether we’ve gone too far in the intellectual property system.”*

Readers of this blog know that I have been opposed to the current US patent regime; I argue that it’s too easy to get a patent and too easy to defend a patent. This blocks innovation because patent holders are allowed to prevent others from building on and improving their patents. That’s a problem because innovation is incremental; every new step forward always builds on a long chain of prior innovations. If any one link in the chain is allowed to block all future enhancements, then innovation stops.

I’ve had iPhones for about three years and I love them. But my first iPhone replaced my Palm Treo 650, and I loved my Treo, too. My Treo did just about everything the iPhone did, so I never really thought the iPhone was particularly innovative. If you never had a Treo, check out this list of iPhone/Treo features:

  • Check your email anytime? Palm Treo had that.
  • Surf the Internet with a touch-screen browser? Palm Treo had that.
  • Touch the screen to follow a link to another web page? Palm Treo had that.
  • An app store, where you could buy and download cool apps like games and productivity software? Palm Treo had that.
  • A music player for your MP3 files? Palm Treo had that.
  • Bluetooth wireless connectivity? Palm Treo had that.
  • Sync your contacts and calendar with your computer? Palm Treo had that.

See what I mean? Really, the only truly new thing in my first iPhone was the WiFi ability and the GPS feature. And the iPhone wasn’t the first phone to have WiFi, and it wasn’t the first portable GPS device either. I agree with this Google spokesperson, responding to the jury verdict:

“The mobile industry is moving fast and all players, including newcomers, are building upon ideas that have been around for decades.”*

Samsung wanted to show jurors evidence that the iPhone was inspired by older products, including those by Sony, but U.S. District Judge Lucy Koh refused to allow the evidence. (For a technical reason: Samsung failed to disclose these examples of prior art during the fact discovery period.* I wonder if the verdict might have been different if the jury had seen this evidence?)

So what were the six patents Samsung was judged to have infringed? It actually was fairly difficult to find this information on the Internet; most media outlets decided this was “too much information” for the typical American. (I found the interactive graphic with the following information on the Wall Street Journal web site here and a detailed summary of the six patents here.)

  1. Utility patent ‘163. Enlarging documents by double tapping the screen.
  2. Utility patent ‘381. When you scroll to the top or bottom of a web page, the display “bounces back”
  3. Utility patent ‘915. Screen can distinguish between single-touch and multi-touch gestures. You can pinch to zoom in, and do one-fingered scrolling.
  4. Design patent ‘087. The ornamental design of the back of the iPhone.
  5. Design patent ‘305. Rounded square icons on the home screen interface.
  6. Design patent ‘677. Ornamental design of the front of the iPhone, with edge-to-edge glass and a front speaker.

The jury threw out the seventh Apple patent: Apple had a patent for the iPad shape, a rectangular shape with rounded corners, and the jury decided that no company could patent a geometric shape. (A victory for common sense.)

Take a look at the detailed, side-by-side comparisons of the iPhone and the Samsung products judged to infringe, on all six patents, here. Yes, I have to agree, those Samsung phones look a lot like those iPhones. But come on, they look the same because they’re both black rectangles with rounded edges!

After I spent some time “under the hood” of the details, I’m left with a couple of reactions. First: Apple spent a lot of money to apply for all of those patents over the years. I think it’s scary when any company really thinks they should have the right to patent a rectangle with rounded corners. Or the right to patent the ability to scroll a screen using your finger. Remember my old Palm Treo? Yes, I scrolled it with a stylus. So changing it from a stylus to a finger gets you a patent?

Second: It’s scary that a jury voted against Samsung. I don’t blame the jury, they were simply following the court’s instructions and the law as it currently stands. The problem is with the law. So now every company is going to be filing patents for triangles, parallelograms, three finger touches, scrolling with two fingers moves slower than scrolling with one, you name it. Come to think of it, I’ll bet most of those ideas already are patented. No doubt some company already has a patent for a trapezoidal phone shape. Coming soon to a court near you, and you heard it here first!

What ever happened to the “nonobviousness” doctrine? Under patent law, an idea is supposed to be nonobvious before a patent can be valid.

Apple’s official statement says that “stealing isn’t right.” That is embarrassingly simplistic. I prefer Samsung’s official statement:

Today’s verdict should not be viewed as a win for Apple, but as a loss for the American consumer. It will lead to fewer choices, less innovation, and potentially higher prices. It is unfortunate that patent law can be manipulated to give one company a monopoly over rectangles with rounded corners, or technology that is being improved every day by Samsung and other companies.

There will be one or two more rounds in this fight: Samsung will appeal to the U.S. Court of Appeals for the Federal Circuit, and then possibly to the Supreme Court. Stay tuned.

1. http://www.huffingtonpost.com/2012/08/26/apple-jury-patent-trial-samsung_n_1831855.html?utm_hp_ref=technology

2. Jessica E. Vascellaro and Don Clark, “Apple victory shifts power balance.” WSJ, August 27, 2012, pp. B1, B4.

3. http://designpatentattorney.com/blog/ “Samsung main life-line would be to unearth and introduce close prior art designs.  However, here, due to an apparent failure to abide by discovery deadlines, the court is preventing Samsung from relying upon many of its best prior art references at the trial.  Thus, this case serves as a stark reminder of the drastic consequences that can arise when a party fails to meet discovery deadlines.”

Comments»

1. Geoff Jones (@geoffjones) - August 27, 2012

Yep The Treo had all those features but they didn’t work anywhere near as smoothly or sync as well the iPhone. Plus the Palm service was awful (I had the 270, 600 & 650). The killer feature for the iPhone was dispensing with the keyboard so as to gain a large screen plus having a local Apple store for rapid service issues.

keithsawyer - August 27, 2012

I agree. In an earlier draft of my post, I said that what is great about the iPhone isn’t any one of its features (none of which are new) but the overall design of the seamless user experience. It’s what Apple is deservedly famous for, and it’s why I like my iPhone better than my Treo. The problem for Apple is, you can’t patent a user experience. So the closest you can come to that is to patent a zillion tiny little elements of the experience–in the hopes that no one could recreate a good user experience without stepping on at least a couple of your patents.
However I disagree with you about the keyboard: After three years, I still hate the on-screen keyboard and always mistype (maybe my thumbs are bigger than yours). I still miss the Treo’s real keyboard.

2. TheLaw.com (@thelawnetwork) - August 28, 2012

Keith – fantastic article and most enjoyable (and disturbing) read. I had the Palm IIIx, the Sonly Clie and other handheld devices that did what Apple has “revolutionized” long ago, including several Treos, still my favorite phone ever (and yes, I miss the keyboar!.) The fundamental problem is that Apple spends big money on lawyers who make the patently obvious and simple into a convoluted description that gets stamped by the USPTO, perhaps graded for effort rather than originality. So should Apple be stuck with having a rectangular tablet and phone with a circular button or should they be sued the moment they go with a buttonless tablet like Google’s Nexus 7?

This decision cannot stand and it’s manifestly clear the process of obtaining a patent in the US has gone far beyond the absurd. Apple can “innovate” because nobody else is allowed anywhere near innovation or even to improve the obvious present and obvious pathways to solutions. So where do we go from here?

keithsawyer - August 29, 2012

The papers this morning (Tuesday August 29, 2012) are noting that Microsoft Mobile is distinctly different from Apple’s iOS. My wife has a MS Mobile device and I have to say, I am pretty impressed. The applications are squares with square corners (unlike iOS which have rounded corners) and they abut each other (unlike iOS where there’s space between them and you can see the background). So it is possible to develop an innovative smartphone that doesn’t look like an iPhone. But do we really want an IP system that says that the icons on every phone have to have a different geometric shape? Won’t we run out of shapes pretty fast? Or an IP system that says your icons can’t have space between them? Well, now, you can’t make them abut either, because presumably that will infringe on Microsoft’s patent.

3. Clickable Phone Numbers: Obvious or Not? « Creativity & Innovation - August 31, 2012

[…] As I pointed out earlier this week, Palm Treo did it first. I admit I’m not an expert in this; perhaps Apple purchased Palm’s patent? Is there some legal basis for arguing that Palm’s clickable email phone numbers are somehow different from the above language? […]

4. heatherwilson7 - September 12, 2012

What I find most interesting about this post is the title. Apple is known for being one of the most innovative companies, yet the patents they have seem to be inhibiting other companies from doing the same thing. It is obvious that Apple has a patent relating to everything and anything to do with an Apple product, but do they have these patents to inhibit innovation or to protect their own business? I highly doubt Apple created these patents with the intention of hurting other companies. In my opinion, Apple did what any smart company would do, they protected their assets.

keithsawyer - September 12, 2012

Most companies develop portfolios of many patents for both defensive and offensive purposes: the term “patent thicket” is used to describe a patent portfolio that doesn’t cover every possible new cell phone (for example) but essentially makes it impossible to develop a workable cell phone without infringing on one or more of those patents. Absolutely Apple was trying to “hurt other companies” with their IP strategy–specifically, to hurt their competitors. Not that there’s anything wrong with that. It’s not Apple’s fault, they are simply playing by the rules as they exist today. It’s the patent office and the courts that are allowing this, and Apple knows that if they don’t get the patent first (for something obvious like “rounded square icons”) then someone else will get that patent.

5. Is Apple killing innovation? « Business, Society, and Government 4 - September 12, 2012

[…] of WordPress, I stumbled upon a blog post about the Samsung Apple case. The blog post was titled Apple Wins in Court; Innovation Loses. What interested me the most about this blog was the title. Apple is known as one of the most […]


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