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