Apple v Samsung: Can Look and Feel Be Patented?

[murraypaul]

Originally Posted by afv011

IANAL, but from my point of view, it seems biased that the judge allows Apple to offer evidence that Samsung copied Apple, and then Samsung is not allowed a rebuttal. What is most puzzling is that Apple showed in their slides the Sammy F700 as an infringing device (even though it was designed before the iPhone came out), and Samsung is then not allowed to rebut this. How is this a fair trial?

Um. the law tends to be a bit more complicated than that!
Each bit of evidence would be considered and ruled on.
In this case Samsung tried to introduce the evidence too late.
And I wouldn't be at all surprised if what Samsung have done here is considered contempt of court.

http://allthingsd.com/20120731/samsu...design-claims/

Ahead of opening arguments on Monday, Samsung lawyer John Quinn asked the court to hear further arguments and allow evidence showing that Samsung designs for what became the P700 predate the iPhone. Judge Lucy Koh denied the request, saying that she had already heard three motions to reconsider the point and noting once again that the evidence had been excluded for good reason: it was introduced far too late in the discovery process.
Quinn persisted, saying he was begging the court to hear more discussion, something he said he hadn’t done in his 30-plus years of law.
“You’ve made your record for appeal,” Koh said. “Don’t make me sanction you, please.”
Update: Apple’s legal team was quick to take issue with Samsung’s release of evidence excluded from the trial, saying the action was contemptible. Judge Koh was none too pleased with the move herself, calling for an immediate meeting with Quinn.
“Tell Mr. Quinn I’d like to see him today,” Koh said. “I want to know who drafted the press release, who authorized it from the legal team.”

Edit: Samsung have already been sanctioned four times in this litigation, and are the subject of an adverse jury instruction. Apple are requesting a second such instruction as a result of this maneuvering.

[fjtorres]

There are two aspects to the fight: the shape of the phone/tablet and the look and feel of the interface. The rounded rectangle by itself is going to be very hard for Apple to defend. Even the GUI by itself would be a tough sell. But Apple is combining both arguing that by developing a product that had the same shape *and* a very similar interface crosses a line.
That... might not be quite as hard.

What I find interesting is that Apple not only patented functional aspects of the hardware and the software (common) via utility patents, but they also patented the appearance of their devices via design patents (not common, possibly a stretch to apply it to electronics).

http://www.intellectualpropertylawfi...tent-types.htm

http://www.intellectualpropertylawfi...design-patents

Does anybody know if the likes of Bang-Olufsen and Ferrari *patent* their design aesthetics? Because *their* designs are unique/distinctive enough that a design patent makes plenty of sense. If they haven't, they should rush out and do it.

Apple may or not have innovated in designing the iPxxx line but it looks like they are innovating in the IP protection field:

http://gigaom.com/2012/08/01/ilegal-...-protect-them/

[ScotiaBurrell]

Originally Posted by fjtorres

There are two aspects to the fight: the shape of the phone/tablet and the look and feel of the interface.

Thats the patents.


But tradedress is all included togather...not two but one.

Apple's relying on one federal trade dress registration on the iPhone, US 3,470,983, which covers the front face and distinctive grid of icons on the homescreen, as well as other unregistered claims relating to the iPhone and the iPad. With trade dress, Apple can focus more on the general characteristics of the iPhone and iPad's appearance and whether a meaningful number of consumers are confused by Samsung's products before and after they’re sold.

[fjtorres]

Originally Posted by ScotiaBurrell

Thats the patents.


But tradedress is all included togather...not two but one.

Nope.
Apple fought and won a trade dress suit without patents in the fruity iMac era. Just on "confusion".
http://www.sfgate.com/business/artic...ke-2922102.php
The patents are an *escalation* on plain trade dress claims which are based on a separate legal foundation.

[Top100EbooksRank]

Originally Posted by fjtorres

Apple may or not have innovated in designing the iPxxx line but it looks like they are innovating in the IP protection field:

http://gigaom.com/2012/08/01/ilegal-...-protect-them/

So design patents for electronics is a new thing:

Apple’s custom-built legal strategy can be seen in the unusual legal arrows it’s using to sling Samsung. The company’s dramatic accusations that Samsung “slavishly copied” the design of the iPad and iPhone, for instance, are based on a type of patent (called “design patents“) unfamiliar even to most intellectual property lawyers.

Far less common than conventional “utility patents,” design patents protect the ornamental aspects of a practical object. According to law professor Sarah Burstein of the University of Oklahoma, design patents were traditionally limited to fields like furniture and lighting until Apple began obtaining them for consumer electronics.

“It’s a credit to Apple and its patent counsel who made progress in getting them through clever claiming,” said Burstein, who specializes in design patents.

Do Televisions, computer, laptop or even cars have design patent? (rounded corner, rectangle shapes or whatnot...)

[Dopedangel]

Originally Posted by murraypaul

Um. the law tends to be a bit more complicated than that!
Each bit of evidence would be considered and ruled on.
In this case Samsung tried to introduce the evidence too late.
And I wouldn't be at all surprised if what Samsung have done here is considered contempt of court.

http://allthingsd.com/20120731/samsu...design-claims/


Edit: Samsung have already been sanctioned four times in this litigation, and are the subject of an adverse jury instruction. Apple are requesting a second such instruction as a result of this maneuvering.

If you want to follow this case try reading http://www.groklaw.net according to them Samsung had every right to release the evidence. And if the judge sanction them over it Samsung could get a mistrial.
Its funny many of Samsung innovations have become standards and Apple is not willing to pay for these patents but it sues for design patents. Apple could not have made Iphone or Ipad without using unlicensed Samsung technology.

[murraypaul]

Originally Posted by fjtorres

What I find interesting is that Apple not only patented functional aspects of the hardware and the software (common) via utility patents, but they also patented the appearance of their devices via design patents (not common, possibly a stretch to apply it to electronics).
[...]
Apple may or not have innovated in designing the iPxxx line but it looks like they are innovating in the IP protection field:

Hey, in that case it looks like Samsung are copying them there too
http://www.samsung.com/uk/images/abo...012_Patent.pdf

Strengthening the Design Patent
In light of the trend shown by the industry of competitiveness shifting
from hardware to software and contents, Samsung Electronics has begun paying more attention to designs that enable us to realize contents
in a more efficient way. Likewise, in the field of patents, the technologydriven patent management strategy of the past has expanded to
include design, design rights, and user experience (UX). Hence, we
endeavor to reinforce our design patent competitiveness as well.
We place emphasis on the unique and soft design that enables the
maximization of the user experience to enhance the feel of comfort, familiarity, and convenience in product development. This unique design
approach by Samsung Electronics has, naturally, led to the obtaining of
the design patents. In order for us to strengthen our design patents, we
realized, recruiting talent is a must. We secure talented people in the
design field through special recruitment and are considering pursuing
a plan to empower the design center, next-generation design institutes
and other research institutes related to design matters in their role and
independence.
As a result of these efforts, for the past five years, 2,499 design patents
by Samsung Electronics have been registered in the US Patent Office.
This figure is approximately three times higher than our competitor’s,
and this is one of our major achievements. We invested heavily in
product design and established design institutes in seven countries
including Korea.

[JeremyR]

I'm just glad books aren't covered by patents. Imagine if every publisher had to make them different shapes. And surely cover art would be something someone would claim. Along with text on the spine.

[kennyc]

Originally Posted by Top100EbooksRank

...

Do Televisions, computer, laptop or even cars have design patent? (rounded corner, rectangle shapes or whatnot...)

They can now. And this is wrong. It inhibits creativity. And gums up the supply channel (as is evidenced by this apple/samsung/ apple vs world case).

[5thWiggle]

Originally Posted by Top100EbooksRank

So design patents for electronics is a new thing:



Do Televisions, computer, laptop or even cars have design patent? (rounded corner, rectangle shapes or whatnot...)

In 2007, Ford blocked imports of replacement grills etc. because they were the same design as ones Ford had a design patent on.

Design patents have been around for a long time, and yes, anything manufactured or invented can have a design patent. See here. Interestingly, the first US design pantent issued (in 1842) was for a font.

Design patents are for ornamentation or style of a functional object in a particular context. For instance, I could design a TV, slap a pair of angel wings on it, and get a design patent. I could stop others from producing TVs with angel wings (and possibly monitors, tablets and digital picture frames) because the angel wings are the ornamentation or style, while TV or digital display are the context. I could not stop someone from selling sofas with angel wings, that would be out of context. The context is almost as important as the design. You can get a design patent on a computer icon, lets say a pencil icon for edit. The context is a computer UI, so you could stop MS or Apple from using a pencil icon of the same or similar style in Windows or OSX. The computer UI as a context is new to design patents.

BTW, IANAL. My understanding of design patents comes from the days when I used to dabble in lutherie (musical instrument making). Several custom guitar makers I know got cease and desist letters from Fender for making Stratocaster look-a-likes.

[fjtorres]

Originally Posted by 5thWiggle

Several custom guitar makers I know got cease and desist letters from Fender for making Stratocaster look-a-likes.

Hard to argue with the merits of *that* case as the shape is their signature.
But then, that was the case for the Classic "PRINCESS" Phone.


It is worth remembering that, while soap bar phones are all over the place now, before iPhone the dominant models in the US were flip phones (ala Razer) and candy bars.

As an engineer I can totally see the case for an unusually clever/distinctive design getting a patent. Or a trend-setting premium product. Just not sure that "elegant minimalism" however tasteful fits the bill. Which is why they're in court.

[5thWiggle]

Originally Posted by fjtorres

Hard to argue with the merits of *that* case as the shape is their signature.

Actually, only in conjuction with the headstock (and minus the trademarked logo, of couse). In the cases that went to court (no one I knew), they used what became known as "the smokey bar rule". If you couldn't tell it wasn't a Fender while it was being played in a smokey bar, it infringed (not an exact quote, of course). The body style is most likely somewhat hidden by the guitarist's body, but the headstock is mostly open to view so using both together is a no-no.

Originally Posted by fjtorres

As an engineer I can totally see the case for an unusually clever/distinctive design getting a patent. Or a trend-setting premium product. Just not sure that "elegant minimalism" however tasteful fits the bill. Which is why they're in court.

I don't see it as just "elegant minimalism", but of course everybodies tastes are different . (FYI - I hate the look of the Fender Telecaster )
But, as you say, that's why they're in court.

[fjtorres]

Originally Posted by 5thWiggle

I don't see it as just "elegant minimalism", but of course everybodies tastes are different . (FYI - I hate the look of the Fender Telecaster )
But, as you say, that's why they're in court.

That is how Apple sells their design language under Ives.
Me, I'm immune to the style but I understand the intent.

The Princess Phone was just an oval with the dial in the center; a pretty obvious concept... now... Ubiquitous. (Where you still find landline phones.) At the time it came out it was revolutionary and not just because it was marketted to women.

I'm thinking that if Apple goes back to the prevalent designs in the industry pre-iPhone they might be able to sway a court that they were doing something unique enough to merit protection.

Not sure how prevalent design patents are in electronics--most products are just boxes with buttons and trim, except for gaming consoles--but if Apple wins the odds are we'll be seeing a lot more court battles. Maybe Apple will take exception to somebody's ultrabook or a cheapie Android crap-pad will try to mimic the Surface... (I haven't been to eBay lately but the place used to be jam-packed with multi-colored iPod clones...)

Litigation is not my preferred form of competition (and Apple has always been lawsuit happy all the way to the Apple II days) but there's a *lot* of money at stake. More... here's a thought:

What if Apple isn't just targetting Samsung? The lawsuit involves the GUI, after all so if they can get a judgment that the Android GUI infringes they could take that to the other Android vendors...

This is going to get *really* interesting by the time the dust settles.

[ScotiaBurrell]

Originally Posted by Dopedangel

If you want to follow this case try reading http://www.groklaw.net according to them Samsung had every right to release the evidence.

seems like Samsung missed a deadline.

[ScotiaBurrell]

Originally Posted by fjtorres

Nope.
.

Yes.

Read links above. 2 aspects: 4 patents and then 1 tradedress complaint. Tradedress complaint is shape plus gui.

I read that if Apple loses anyone could use their iOS aesthetic without penalty.