Can look and feel be patented? [Apple vs Samsung lawsuit]

As complicated as the case may be, Apple will strive to persuade jurors of one important notion – Samsung is a copycat. Samsung will assert that not a bit of Apple’s designs are totally original, and that offering patent fortification to the rectangular shape and flat front surface of its products would iniquitously constrain competition. Apple has become the most valuable company by producing products that are prominent for ease of use and design, deriving from buckets of minor innovations, such as rubber-banding, instead of blockbuster technology breakthroughs.

In the trial in federal court in San Jose, California, Apple will make an effort to verify to jurors that its class of innovation is not only successful in the marketplace, but also unassailable in a courtroom.

“Everyone has a sense that Apple does something different,” said Cheryl Milone, CEO of Article One Partners, a company which makes software used to validate whether intellectual property claims are rational or not. “Whether those differences can be protected in court is the question.”

While consumers shift en bloc from older, restricted handsets to smartphones akin to computers, the trial could have a major influence on one of the biggest, rapidly-growing spheres of technology, said Chris Jones, an analyst at Canalys. If Apple were to succeed, Samsung could be forced to level down features in its handsets, making them less appealing to consumers. It will also drag Google into this fierce lawsuit, and put Android to legal jeopardy. If Samsung were to win, Apple will be forced to increase the prices of it its iPhone.

“Samsung is on trial because it made a deliberate decision to copy Apple’s iPhone and iPad,” Apple said in the introductory line of its main pretrial filing with the court. “Try as it might,” Apple said, “Samsung cannot deflect attention from its own copying by the patents it has asserted against Apple.”

In its filing, Samsung retorted that a lot of contending products look analogous. “In this lawsuit,” Samsung said, “Apple seeks to stifle legitimate competition and limit consumer choice to maintain its historically exorbitant profits.”

Courts have usually granted better protection to engineering-based inventions, that carve an entirely new method of completing a task. These so-called utility patents shields the inventor from copying for twenty (20) years after the first filing. Apple claims that Samsung has breached three such patents. One is for rubberbanding, and another relates to how users can double-tap a Web page or photo to zoom in or out of it.

What sets Apple’s case apart is the company’s nub on defending design patents, which relate to the look and feel of its mobile products. The four patents in the San Jose trial deals with things like the position of the power button on the iPhone and iPad and the devices’ flat, edge-to-edge glass fronts. One of the patent documents involves little more than nine artworks of a rectangular tablet, with no measurements.

Design patents bears a term of 14 years and are often harder to protect than engineering patents because cases often suspend on more subjective feelings. Moreover, companies can easily make comparatively simple cosmetic changes to their products to skip infringement claims. In a countersuit being hearkened in the same case, Samsung alleges that Apple is violating five of its patents, counting two that comprise of basic telecommunications technology that let phones communicate with each other.

Apple’s patent wallet shows the load the company plunks on design-oriented inventions. In contrast to 2.7% of patents given to tech companies are design patents, 13.4% of Apple’s 5,452 patents cascades into this category, as stated by MDB Capital Group LLC, which provides a patent database. Out of the 359 patents applied by late Steve Jobs, 86 percent are for design.

“Apple patents the things that they think make Apple special. They focus on the consumer’s experience.” says Bob Borchers, a venture capitalist who previously worked at Apple. Apple’s previous attempts to win protection for such advances has been mixed. In 1992, Apple lost a copyright-infringement suit meant to prevent Microsoft from using GUI features of the Mac in Windows. When Apple unveiled the iPhone in 2007, Steve said Apple filed for 200 patents to defend the invention. Apple has been antagonistic in emphasizing those, and has won bans on sales of several editions of Samsung’s Galaxy tablet in the European Union and Australia . In the current trial, U.S. District Judge Lucy Koh granted an embargo, blocking sale of the tablet in the United States.

“That’s a pretty strong statement from the judge and shows you what she thinks about some of Apple’s claims,” says Brian Love, a Santa Clara University law professor and patent expert.

Apple is asking a lofty price for its patents in court. The company wants $2.5 billion, or as much as $7.5 billion if jurors considers exemplary damages as fair. $2.5 billion converts to roughly about $31 for each device vended by Samsung. Apple chalks up $24 of that $31 to Samsung’s ill use of its design patents. In its countersuit, Samsung is asking Apple to shell out $14 for every contravening device.

“In some sense the big part of the case is not Apple’s demands for damages but whether Samsung gets to sell its products,” said Mark A. Lemley, a Stanford Law School professor and director of the Stanford Program in Law, Science, and Technology.

“Design patents are supposed to be hard to defend. If you could stop everyone by patenting a rectangular phone, then Motorola could have done it years ago and none of this ever would have happened.” said Kevin Rivette, managing partner at 3LP Advisors LLC and a former vice president of intellectual-property strategy for International Business Machines Corp.

“Most of the patents in these disputes are ridiculous. Imagine if every brand of car had to have a totally different interface such that only one manufacturer could use a steering wheel and pedals while the rest would have to use pieces of string, joysticks, rods, gesture control, voice control, etc. – every time you switch to driving a different kind of car you’d have to pass a new driving test before you could be let loose in it. If a company gets there first with something, they have no moral right to patent the user interface, and particularly as all user interfaces are patently obvious. Stealing code and algorithms is another matter, but if a company can work out how to do the same thing independently without copying, they should not be blocked by patents. As for the similarity of different products, of course they’re going to look the same – cars all look much the same because their functionality dictates their shape.” says David Cooper, a DailyMail commenter.

The case is Apple Inc. v. Samsung Electronics Co. Ltd., 11- cv-01846, U.S. District Court, Northern District of California (San Jose).

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