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Between the Lines

Larry Dignan, Andrew Nusca and Rachel King

Apple is right to protect its iPad design patent

By | August 9, 2011, 6:54pm PDT

Summary: There was a time when holding a patent was a prestigious accomplishment. A patent used to be a respectable thing. Now it’s a dirty word. And, shame on anyone who protects their intellectual property–especially if it’s Apple.

iPad Design Patent: The Final Frontier

iPad Design Patent: The Final Frontier

Two of my fellow ZDNet colleagues (Rachel King and Steven J. Vaughan-Nichols) have given their respective opinions about Apple’s European Union injunction against Samsung’s Galaxy tablet computer. In summary, they are not amused. I, however, am taking Apple’s side in this battle. And, I might have to remind you that I’m an open source, Linux and anti-patent advocate. That said, I find Apple’s actions in this matter to be justifiable and reasonable.

How can an anti-patent guy have such an opinion?

For one, I’m against certain software patents, not all patents.

And, two, I’m for reasonable intellectual property rights.

Three through infinity: I think you have a right to protect something innovative that you developed.

How many times have you seen a new product or service hit the market and you said, “Hey, I thought of that ten years ago.” You might have but you didn’t patent the process, the design or the technology. If you had, you’d be rich instead of regretful. If you had patented your idea, my opinion is that you’d want to protect it from thieves.

Regardless of opinion, Apple designed, patented and marketed (successfully) their iPad design and they have a right to protect that by enforcing their patent. That’s why patents exist.

And, no, there’s no conflict in what I’m saying here nor for what I believe to be true for many software patents. The difference is scope. Apple’s iPad design belongs to Apple. UNIX, TCP/IP and HTML, for example, belong to everyone–or should belong to everyone–free of patents.

Patents are intended to protect inventions. They can be obtained for new products, processes and methods of use. They have a limited lifetime, but during that time, they provide the patent owner with exclusive rights to prevent others from working within the scope of the patent. From the BridleIP website.

What’s the point of innovation if there’s no protection for that innovation? The reward of a warm feeling only lasts for a few minutes. Money can last several lifetimes. Money is tangible. Money is the reason for any business pursuit. And, money is the reason that the non-innovators want to copy awesome designs. Patents are reasons that those copycats get into trouble for their transgressions.

If you invent something cool or revolutionary, you deserve the rewards for that invention. If you don’t have patent protection, you’ll spend a tremendous amount of time, money and effort bringing a new technology to market only to have it copied and taken away from you within a very short period of time.

Stealing and copying someone else’s invention isn’t clever or creative. It’s just stealing.

Stealing is wrong. Stealing from Apple is wrong too.

Apple has a right to protect its tablet design. You have a right to protect your design for a better mousetrap. Sure, there will be people who imitate the design–or perhaps improve upon it–or cheapen it in some way, but if they get too close to the original, they should be stopped. It’s not about squelching competition, it’s about what’s right and wrong.

Apparently Apple believes that Samsung got too close and the European Union agreed. You’re entitled to your opinion on the matter but the bottom line is that innovation deserves protection. And, I think you’d see it differently if it were your invention’s design infringement in question and not Apple’s.

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Disclosure

Ken Hess

My full-time employer is EDS (HP). I write as a freelancer for ZDNet. The postings and opinions on this blog are my own and don't necessarily represent EDS's, HP's, their subsidiaries or affiliates positions, strategies or opinions. I own no investments or direct financial instruments in the companies I write about.

Biography

Ken Hess

Kenneth 'Ken' Hess is a full-time Windows and Linux system administrator with over 15 years of experience with Mac, Linux, UNIX, and Windows systems in large multi-data center environments.

Ken writes on a variety of topics including interoperability, virtualization, data center operations, databases, and open source software. He has written and co-written books on Linux, databases, and virtualization. He currently writes a System Administration column for Linux Magazine and is a regular contributor to Linux User & Developer magazine, ServerWatch.com's Trends and InfoStor. He often contributes to other online and print publications as well.

His first computer was a Commodore VIC-20, which he purchased because William Shatner was in the commercials.

In his limited spare time, Ken enjoys painting, drawing, and flinging angry birds at fortified pigs.

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RE: Apple is right to protect its iPad design patent
Shep70 25th Aug
Gee,Apple never stole anything?????
Ever see the movie "Pirates of Silicon Valley????
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Sure
timiteh 9th Aug
You are serious ?
Because this patent should not have been granted to begin with.
For gosh sake how any sane institution can grant a patent for a basic design of a tablet ?
What is next a company will be granted a patent for TV design ?
Why not for the wheel as we are at that ?
If you can't see how silly this whole thing is then you are hopeless.
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@timiteh
they do not understand the patent process (or a patent itself) and therefor fall back on the easy assumption that if it was granted, it must be a fair and just innovative product or procedure.

It is fair to protect the rights of the holder of patented product they have invented.

It is unfair to protect the rights of the holder if the patent in question should have never been granted, as it applies to a product that others have used long before.
@timiteh Err, ever heard of "prior art"? So no, you can't patent a design for a TV. Before the iPad was there a computer with a touch screen that relied on multi-finger input without an onscreen pointer?

If so, that would be prior art. Otherwise, I think Apple's patent probably stands.
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@Jeremy-UK

It's well known and heavily documented that the USPTO grants lower-quality patents and then leaves the US court system to verify the validity of some patents. If the USPTO granted high quality patents almost all of the time, many of the problems would vanish.
@Jeremy-UK Never seen Microsoft Surface? While the technology to implement such devices is only just becoming available, the ideas are nothing new.
@craigvn@? The Microsoft surface used cameras located under the top surface to track motion and objects. The iPad, iPhone, and use multitouch capitative panels to generate the input.
@Jeremy-UK You mean were their tablets? Heck yes. In fact, even Atari corporation had worked on a tablet design for their computer line although they never brought it to market!
@Jeremy-UK You are obviously wrong because the iPad was NOT the first tablet on the market. Nor was it the first tablet demonstrated. And the patent they are using was AFTER it had already been on sale for awhile. If I sold a product for awhile, then tried to patent it, I'd be laughed out of court. Of course, I'm not the richest corporation (news from the other day). If they had tried to sell it in Europe with Windows on it, things would've been different. (MS demonstrated a working tablet back at 2000 Comdex).
@Jeremy-UK .. i dont agree ,, see the patent it is a line diagram for crying out loud,, patents are given to specific detail designs and not to sketched outline,, how can you patent a rectangle, next thing u will see a rhombus patent
@Jeremy-UK Have you ever heard of IBMs Simon?
Apple has a junk patent. All of its components are protected by other companies with real patents. Apple is simply freaking out because nothing it has done is innovative not even the UI of its OS or devices. Its just prettyfied, dumbed down consumer garbage. The USPTO is also the most ineffective IP protectionist agency in the world. Patent reform is gravely needed.
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@Jeremy-UK Have you seen the EU design registration document? (It's not a patent.)

The design is a rounded rectangle with a square screen in the middle. There is nothing about touch, or even anything to say that it's a tablet at all.

Certainly it's not an iPad, since it has no Home button or connectors noted (which the far more detailed US design patent contains).
@timiteh
"What is next a company will be granted a patent for TV design ?"
You mean like when Sony was awarded the patent for the Trinitron screen design?
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I agree it is silly
oncall 9th Aug
@timiteh

It's silly that Apple is forced to spend time and resources defending its intellectual property from companies that cannot even put forth the minimal effort to make their products sufficiently different from an Apple's that they could pass a sniff test. However, since Samsung couldn't be bothered to make such an effort I am not going to waste time feeling sorry for it.

What's really amusing is this came from the EU the supposedly, according to folks around here, the last bastion of fairness against baseless intellectual property claims.
@oncall If it's a completely different size, uses a different processor, different screen resolution, different OS, different camera setup, and a thousand other things that are different, you feel that the ONLY way Apple can survive is by trying to ban it as opposed to just selling a superior product (which Apple very clearly has)?

If Samsung makes the backside some color other than white, or if they round the corners so it looks less like a rectangle - would THAT be good enough for you? Where exactly do you feel Apple has been infringed to the point of meaningful economic impact?
@spark555

An iPad. Why didn't Samsung do so? There are many black rectangles in the world that don't look almost exactly like an iPad. And yet, damn, that Samsung sure does look like an iPad. Not just a little, but a whole lot.
@oncall

Out of all the tablets out now, Samsung's Galaxy Tab 10.1 is the only one that looks exactly like an iPad. Blatant cloning on Sammy's part.
"Samsung's Galaxy Tab 10.1 is the only one that looks exactly like an iPad"

Does this mean we can expect to see you cheering against Apple as they try to block the sale of the Motorola Xoom, a device you have just admitted does not look like an iPad?
@Everyone James Randi has a million dollar prize for you if you can tell any of these tablets apart from a distance far enough to not be able to see the logo. They're all rectangles. Period. 99.99% of laptops are clamshells with minor cosmetic differences. Period. Most smartphones are rectangles with a screen. Period. If I popped the labels off you couldn't tell one from another.
@oncall If an EU "Design Patent" is like a US one it covers only what the device looks like, not any technology involved in its workings. The drawings I saw from the patent on another website show what looks exactly like an Etch-A-Sketch" without the knobs. That seems an obvious development to me and should not have been granted a patent !
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@oncall "What's really amusing is this came from the EU the supposedly, according to folks around here, the last bastion of fairness against baseless intellectual property claims. "

It is, baseless lawsuits are very rare in Europe. According to the loser pays principle the winning side must be fully compensated so it does not end up worse off than if the court never had to take place. So it really makes no sense to sue someone in bad faith, as you can't harm them and it will cost you money.
@timiteh Just because the invention seem obvious now doesn't mean it shouldn't be granted. Just like anything, it may seem obvious to you, like the way gestures are made, those seem very obvious to me, but they can be patented. Don't be a hypocrite.
@m3kw9 If it's obvious it can't be patented.
@timiteh
You apparently do not know that there exists such a thing as a Design Patent. This is not the same thing as a patent for an invention; it is a patent that covers the industrial design of some object, such as the Coca-Cola bottle, the Chevrolet Corvette, or the iPad. A design patent prevents people from making blatant knockoffs of other people's industrial designs. It has nothing to do with technical innovation, it is more analogous to a copyright on a logo, except this covers the design features of a product.

It is not easy to get a judge to issue an order blocking someone from selling their product. Yet this has happened to Samsung twice now in Australia and in Germany. Please consider the possibility that competent judges in two separate countries have reached the conclusion that Samsung's product is a blatant knockoff.
@Robert Hahn Yep, design patents exist and this case wasn't about a patent. It's about an EU Community Design that describes an utterly generic rounded rectangle touchscreen which if valid would cover most PDA's, smartPhones, e-book readers, and tablets ever made.
@Robert Hahn The drawing submitted http://i.zdnet.com/blogs/10-08-2011-17-29-48.png?tag=content;siu-container is as general a rendering as could be made. This design patent might as well be for a packing crate, a piece of paper, a T shirt, a glove, a kitchen chair, a coffee table, a lamp shade, a block of wood... Submit a sophomoric sketch of any of those items to the EU and get protection. Jump in while there is still room!
@timiteh I DID read a story in an Isaac Asimov-collected sci-fi anthology in which someone did patent the circle. happy
@timiteh

What is next a company will be granted a patent for TV design ?

The company that came up with the first TV did and should be protected by a patent...
@timiteh Agreed...its just a way around not being able to patent ideas. The fact that a process can have a patent is crazy. Has someone tried to patent FIRE yet?
@timiteh

Because this patent should not have been granted to begin with.

It's OK. Because it wasn't. There is no patent here. Look up EU Community Design Document. That will explain what is going on. And if you Google for it you may even find a link to the actual Apple Design Doc. in question.
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Here is the line I am going to destroy.

"How many times have you seen a new product or service hit the market and you said, ?Hey, I thought of that ten years ago.? You might have but you didn?t patent the process, the design or the technology. If you had, you?d be rich instead of regretful. If you had patented your idea, my opinion is that you?d want to protect it from thieves"

This is a vastly uneducated and misconceived opinion of what patent law is about. Its a classic example of someone who has absolutely no clue of any reasonable kind what they are talking about, opening their mouth and starting to chat it up about a subject they clearly are so horribly uneducated about its an absolute embarrassment to even watch.

I am going to spell out in simple ordinary ENGLISH why this CRAP view of patent law is so horribly wrong and is NOT the law at all.

If Joe Average is thinking up the same ideas as anyone else the idea is NOT unique or original, and certainly not an idea thats outside of what the ordinary person schooled in the particular art in question would think of. This is the very simple and obvious reason why nobody can patent breathing for example. You cannot patent an idea thats an obvious solution to a particular inventive quandary. Its a concept that makes magnificent sense, and it should be for obvious reasons.

We are not a world of people who should be getting rich or making vast profits based on the notion that whoever makes it to the patent office with the requisite fees can patent any idea and shut the world out to reap the profits on a rather un-spectacular and relatively obvious design concept.

And ya, the basic design of the iPad is not only obvious, its actually DUMB as may who have purchased it are finding out much to their dismay.

Figuring out the theory of relativity is clearly something that was well beyond the average person schooled in the field of physics, figuring out that if you wanted to make a stand alone tablet, it would look much like an iPad is child's play. If Apple refuses to think so, I sorely wish they would hire me because I have ideas far more inventive then that, and quite frankly, I don't even know what I'm talking about.

This is a clear cut case of trying to cut the world out of being allowed to BREATH because Apple had the audacity to run to the patent office with the "idea" of breathing, and the idiots at the patent office noticed that nobody else had "thought" of patenting the IDEA of breathing.
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@timiteh
i totally agree to timiteh
the injunction was mindless and stupid, ken hess article does not help either, how can he side with apple.
Companies are loosing money on the market place and they are thinking of increasing the bottom line by frivolous lawsuits,, guess who wins in all these mindless fights .. the lawyers... if apple wants to get the lion share then look at a better pricing model
WORST INFORMED ARTICLE EVER. IT IS NOT A PATENT. This case is over a European Community Design registration, and doesn't involve patents, processors, software or hardware. It's not even one specifically for the iPad, since Apple's registered design is of a generic rounded rectangle ... it doesn't even have a Home button.
@timiteh It's even worse, because this is not a patent, but a Community design. You can register any design you wish and it's your responsibility it's new and unique. (The loser pay principle is sufficient to deter meritless lawsuits, so this makes sense in Europe. Injuction too is AFAIK much easier than in the US because again, Apple is responsible for all damages if they lose.)
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This is the Interesting part
Mister Spock 9th Aug
The request for injunction was filed with no notice to Samsung, and the order was issued without any hearing or presentation of evidence from Samsung

I wonder if Apple will open a manufacturing facility in Germany in the near future?

plain
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Thank you, Ken
kenosha77a 9th Aug
Finally a rational understanding of the issue is stated by a ZDNet blogger.
Yeah man this dude layed it out. Very hard to argue against it. I saw those designs, and they could have been apple products and I would have brought it as if apple came out with a new type of marketing design without the Apple logo, if I didn't see the "samsung" label.
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One must remember also...
A Grain of Salt 9th Aug
That Australia has taken a similar stance to Germany. So that's now two judges that have set the precedence that the Galaxy Tab is just too much of a copy. I'm sure more will follow.
1: Do you believe Apple was the first company to create a slate touch screen computer?

2: Do you believe the recent action in Europe is based on enforcing a PATENT of any kind, or did you bother to read far enough to notice that the restraining order doesn't involve patent law?

3. If you believe that having a table touch screen computer is so astonishingly innovative, why shouldn't the companies who came out with them BEFORE Apple be allowed to sue? What _specific_ design or functionality do you believe gives Apple's version of the tablet the right to ban all similar efforts given the ones that existed prior and after Apple's (very nice) incarnation?

4. Can I patent the idea of a flat screen TV and forbid anyone else from making one if I come up with a version of it that's particularly well crafted and has a nice interface?
@spark555

Totally missing it.

Here's a question for you: When Apple first released the iPad, can you name a single tablet device prior to it that you can honestly say the iPad resembles? Or that Apple is blatantly cloning? In both look and feel?

This company Samsung is now well known for its cloning tactics.

http://thisismynext.com/2011/04/19/apple-sues-samsung-analysis/
@dave95. Sure.

Based on the details offered in Apples "community design" document which involve an utterly generic rectangle with rounded edges and no specific buttons, camera or functional details, obvious prior art would include every PDA that Palm ever produced, most of the Microsoft Tablets from the last decade, a variety of early e-book readers such as the Kindle...

Shall I go on?
@spark555
Please stop, since you have no idea what you are talking about. None of this has anything to do with technical innovation, the idea of touchscreen tablets, the idea of a flat screen TV, or indeed anything related to the function of the device. Apple is making no claims to owning any of these things.

This is about the industrial design, the way the product looks, as specified in some detail, i.e. do not come back with "Apple is trying to own the rectangle," because that is (a) false, and (b) stupid. Not even Apple is lucky enough to have found two judges in two separate countries that would let them own the rectangle. Yet Apple -has- found two judges in two separate countries that think the Samsung product blatantly copies the industrial design of the iPad. Hence the rulings.
@Robert Hahn So what I think you meant to say is that I'm completely correct, this case did NOT involve any PATENT, and instead was about a "community design" and if you read it, it's a crude sketch of a rounded rectangle that is so generic it could be absolutely any tablet, smartphone, slate, or PDA ever shipped.
@Robert Hahn Have you READ the community design document that Apple is using, and seen the utterly generic design they are claiming?
To those claiming the Galaxy is "too much of a copy" - can you go into any specific aspect of the product and explain WHAT was copied, and not find out that it had been done before Apple got there?

Table format - rectangular touch screen. DONE

Buttons along side of tablet: DONE

Touch sensitive icons to run various apps on the tablet: DONE

Tablet that has wifi: DONE

Tablet that has 3G: DONE

Tablet that has virtual keyboard on the touch screen: DONE

Anyone - anyone at all. Explain WHAT is being "copied" such that Apple's entry into a well trodden tablet space means that all former and future efforts are forbidden?

What would Galaxy have to change to not "infringe" on the iPad's Hegemony?
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@spark555 .. they put a skin on android and for most of the core icons use the exact same colours and icons.. for the interface elements they use the exact same RGB values.. they scrapped androids icon layout in favour of a tray like Apple's.. they didn't even try to come up with something different.. by looking at their design someone had to have come into the meeting room and said.. forget all these ideas.. just make the damn thing look like an iOS device.. look at Samsung's marketing material.. they were marketing this thing as a Samsung version of an iOS device.. that is very plain to see for anyone willing to open their eyes and see..

and the other thing is that you look at all these design elements in isolation.. but random bits and pieces don't make a product.. two products that share ALL those same elements too a T cannot be by accident.. they actually had a design brief to rip of Apple's design bit for bit.. there is no other reasonable explanation for it..

Apple has a design patent (forget the proper term for it) for the basic design of iPods, iPads and iPhone.. the silver ring, the curved corner and the home button.. again.. not each thing in isolation but when all those element are used together would constitute a breach of their design.. everyone else seems to be able to design something different.. why not Samsung.. Samsung is just grimy..
@doctorSpoc So it is your position that Apple can now forbid anyone from making any product of any size which is a rounded rectangle, black front, white back, and silver trim with a home button?

Do you really feel that Apple is so weak and customers are so stupid that they think the Galaxy is an iPad and is running iOS?
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@spark555

Have you ever heard of consumers calling every other mp3 player an iPod? Or calling other eReaders a Kindle? Or now calling your Galaxy Tab an iPad? "Is that a new iPad you're carrying". Let's not act naive to what Samsung is attempting here.

This reminds me of a similar case a few years back. Glaceau, makers of the popular beverage Vitaminwater filed a trade dress suite against Pepsico, owners of the newly competitor SoBe LifeWater. They claimed that Sobe were mimicking so many key elements of the unique, distinctive VITAMINWATER trade dress that it cannot be the result of sheer coincidence . It was an attempt to confuse consumers in thinking that Lifewater was the same as Vitaminewater. If you look at both bottles it's clear to see Pepsico's intent. Pepsico eventually decided to change the design of the bottle, the label and clear plastic cap.

http://nutrisuplaw.com/docs/lifewater.pdf

Nevertheless, this is why we have trade dress protection. To protect against consumer confusion, and to protect companies from blatant thievery.
@doctorSpoc Your first part of argument regarding icons are "look and feel" and Apple had tried and failed in court before. They shouldn't matter but EU probably don't care about US's past ruling.

The second part really is just the rectangle design and trade dressing. i.e. Packaging
It is a weak argument because apple really just claim samsung violating it. The only evidence Apple presented is a stack of papers with some rectangle on it.

Apparently combining both is enough for EU court for the injunction ruling.
"can you go into any specific aspect of the product and explain WHAT was copied"-spark555

By necessity, the definition of trade dress is broad, e.g., "essentially (a products) total image and overall appearance." Blue Bell Bio-Medical v. Cin-Bad, Inc., 864 F.2d 1253, 1256 (5th Cir. 1989). Trade dress may include "features such as size, shape, color or color combinations, texture, graphics, or even particular sales techniques." John J. Harland Co. v. Clarke Checks, Inc., 711 F.2d 966, 980 (11th Cir. 1983).
@Falkirk

Excellent. So, your case is dead. The Galaxy Tab is a completely different SIZE. Oops darn, not a copy. Crap. Now you'll have to let Apple simply make and sell a superior product without trying to ban anything which happens to have the same shape and color.
Gee,Apple never stole anything?????
Ever see the movie "Pirates of Silicon Valley????

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