Patent enforcement: It's your move, Apple

Patent enforcement: It's your move, Apple

Summary: Apple holds enforceable patents on products that make other phone and tablet manufacturers guilty of criminal patent and trademark infringement. It's up to Apple to decide what to do next.

TOPICS: Samsung, Apple, Legal

Mirror, mirror

Mirror, mirror

Many who read my recent BTL post, Apple is right to protect its iPad design patent, unsurprisingly either misread or misinterpreted what I wrote about the situation. Apple has launched several suits to protect its patents in the US, Europe and Australia. And, for your information, the lawsuits are because Apple is protecting its intellectual property (IP) contained in several of its patents. Those patents go deeper than the "rounded corners and flat black slab" that so many pointed out as Apple's patent design.

I stated in the original post that, "...Apple designed, patented and marketed (successfully) their iPad design and they have a right to protect that by enforcing their patent." A true and undeniable statement.

Other true and undeniable facts about Apple vs. Samsung (and others) suits:

  • The injunction in the German court was a patent enforcement action. Read the original German article: Circles: Apple stops selling Samsung's iPad competitor in Europe.
  • U.S. Patent No. 5,946,647 on a "system and method for performing an action on a structure in computer-generated data" (in its complaint, Apple provides examples such as the recognition of "phone numbers, post-office addresses and dates" and the ability to perform "related actions with that data"; one example is that "the system may receive data that includes a phone number, highlight it for a user, and then, in response to a user's interaction with the highlighted text, offer the user the choice of making a phone call to the number")
  • U.S. Patent No. 6,343,263 on a "real-time signal processing system for serially transmitted data" (while this sounds like a pure hardware patent, there are various references in it to logical connections, drivers, programs; in its complaint, Apple said that this patent "relates generally to providing programming abstraction layers for real-time processing applications").
  • Apple holds at least 20 enforceable patents based on system design used against other manufacturers of tablet computers.
  • German patent law is stricter than US patent law and patent holders are vehemently protected under German law.

To apply for a patent, you must fully describe a process, a product (including any proprietary ingredients) and often provide drawings or diagrams to illustrate the object or process. But, drawings and diagrams are not a patent, they are part of the material submitted in the application. The process is lengthy and costly but if you have a product or process that's worth protecting, you'll willingly participate and hand over the required cash. At the end of this post, I've provided you with reference material with which you may use to educate yourself on the topic of patents.

You can see from the photos, Samsung's design deliberately copies Apple's. The devices are practically indistinguishable from one another for the common consumer. Technical folks can tell after a second glance but even gadgetophiles have to admit the uncoincidental similarities between the two.

Apple has much to consider in these lawsuits and has several options:

  1. Claim monetary damages from the offending companies.
  2. Force violators to cease and desist with production.
  3. License its designs to Samsung and others.
  4. Require offenders to pay fines and royalties.
  5. Drop the suits entirely.

Apple doesn't need the money but it may want offenders to pay damages, fines or royalties from the sale of the infringing devices to teach them a lesson. It's more likely that Apple will enforce its IP and patent rights as a cease and desist to halt the manufacture and sale of those devices, which leaves consumers holding unsupported hardware and software. And, it's unlikely that Apple would simply drop the suits entirely.

The best possible outcome for consumers would be for Apple to license the infringed technology and demand a public apology from Samsung and others. If Apple really wants total world domination, it could force violators to cease and desist plus return or exchange their devices for non-infringing ones.

Possibilities and conjecture aside, the situation doesn't look good for Samsung and others, if Apple emerges triumphant in these cases. Any action, other than dropping its cases against the other companies, will likely have irreversible and devastating financial repercussions on those manufacturers. Regardless of the decision, there's likely to be some interesting C-level officer shifts coming soon at Samsung, HTC and other Android phone manufacturers.

Apple has the distinct and enforceable advantage in these suits. The only thing to be decided now is just how ruthless it decides to be with regard to the infringements.

Reference Material:

What is a Patent?

A patent is a property right granted by the Government of the United States of America to an inventor “to exclude others from making, using, offering for sale, or selling the invention throughout the United States or importing the invention into the United States” for a limited time in exchange for public disclosure of the invention when the patent is granted.

For those of you who said that there's no such thing as a design patent, I submit the three types of patents as described by the US Patent and Trademark Office:

1) Utility patents may be granted to anyone who invents or discovers any new and useful process, machine, article of manufacture, or composition of matter, or any new and useful improvement thereof;

2) Design patents may be granted to anyone who invents a new, original, and ornamental design for an article of manufacture; and

3) Plant patents may be granted to anyone who invents or discovers and asexually reproduces any distinct and new variety of plant.

More explicitly:

What can be patented – utility patents are provided for a new, nonobvious and useful:

  • Process
  • Machine
  • Article of manufacture
  • Composition of matter
  • Improvement of any of the above

Note: In addition to utility patents, encompassing one of the categories above, patent protection is available for (1) ornamental design of an article of manufacture or (2) asexually reproduced plant varieties by design and plant patents.

What cannot be patented:

  • Laws of nature
  • Physical phenomena
  • Abstract ideas
  • Literary, dramatic, musical, and artistic works (these can be Copyright protected). Go to the Copyright Office .
  • Inventions which are:

    • Not useful (such as perpetual motion machines); or
    • Offensive to public morality

Invention must also be:

  • Novel
  • Nonobvious
  • Adequately described or enabled (for one of ordinary skill in the art to make and use the invention)
  • Claimed by the inventor in clear and definite terms

See Also:

Topics: Samsung, Apple, Legal


Kenneth 'Ken' Hess is a full-time Windows and Linux system administrator with 20 years of experience with Mac, Linux, UNIX, and Windows systems in large multi-data center environments.

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  • RE: Patent enforcement: It's your move, Apple

    Verbs are the sinews of the language. "Ruthless" Apple - give me a break. I make something and some folks in China copy it and I let them do it if I have an alternative - pretty stupid is not ruthless.

    (Actually Ruthless is an adjective but everything else stands.:o)
    • RE: Patent enforcement: It's your move, Apple

      @idstandard Speaking of nouns, verbs and adjectives, does anyone think the author is looking kind of stupid for publishing a page of US patent terms, and ignoring the fact that the recent european injunction had nothing to do with US patent law, nor european patent law, and instead was based on a "community design" which is granted to every single mass produced item anywhere in europe with no claims, no prior art test, no obviousness test, nor ANYTHING related to how the already broken US patent system functions?
      • RE: Patent enforcement: It's your move, Apple

        It had everything to do with patent law. I am not sure where you're getting your info. Apple went to court in Duesseldorf because Germany upholds patent holder's rights.
      • Yep... US was mentioned everywhere...

        @spark555 <br><br>And as everyone will know... patent laws are different everywhere and have to be applied for everywhere. I'm not sure why so many folk are so keen to give Apple the world but there definitely seems to be a msinister movement afoot. Lets all just buy Apple in future and trust the world to be a better place. Better in terms of being limited to (of course I mean 'protected', silly me) itunes connectivity, itunes supported formats, itunes supported downloads, etc etc.<br><br>Strange how folk that buy Apple start to preach, and slate MS for far less. Me? I have an iPad and and iPhone (3 & 4) but dont use them. I have an Asus Transformer, a Blackberry Torch, and HTC Wildfire, and various XP/Win7 PCs... I even have a hackintosh for testing user flows but I hate the way Apple are dealing with this 'drivel'. Just sell the products and let everyone else do their own thing. If the others had a tablet with one button I could undertsnd it a bit more but they dont. Thay have buttons, multitasking, flash, SD/USB slots.... really similar when you look eh????
    • RE: Patent enforcement: It's your move, Apple

      Wouldn't it be amazing it KHess wrote something remotely honest like the following?:


      Despite my focus on patent law, the recent European court ruling was based on a European "community design" which does not require claims, is not subject to a prior art search, and in general is not the same thing as a patent, US, European, or otherwise.

      Apple does hold a number of US patents which are uttely unrelated to the recent European court injunction, and which may or may not have serious prior art issues within the domain on US patent law.

      Apple has made a very innovative product, which is being immitated by many potential competitors.

      Apple's community design document which was used in the European injunction describes an utterly generic rectangular touch screen device which is either in massive prior art violation, or is utterly under-descriptive to be used.

      If Apple's research in the 1970's is the basis of any intellectual property claims, then it would have already expired.

      If Apple's recent specific iPad design is the subject at hand, then I need to immediately fix my terminology, start discussing it as TRADE DRESS instead of patent, and attempt to figure out exactly what aspects of the iPad design should be "owned" by Apple (rectangle? Silver border? Home button?) and which are clearly available to either prior art or common sense.
      • RE: Patent enforcement: It's your move, Apple

        @spark555 The company was formed in 1976/77 and for many years was focused on what were almost hobby computers even at that time. What research did they do in the 1970's that is relevant to the discussion?
      • RE: Patent enforcement: It's your move, Apple


        Certain posters on this thread had vaguely suggested that Apple had secret research way back into the 1970's era which meant that Apple really had "invented" the concept of a rectangular touch screen device, thus they were entitled to a hegemony over all such possible items.

        I was simply stating cold hard facts that even IF you believed this was true, it would simply mean that the prior art on inventing the rectangular touch screen concept was far beyond the period allowed for IP protection, so even THAT argument is bogus, just like saying that the german court decision was based on US patent law when in fact it addressed a very specific and completely generic community design filing that had nothing to do with any patent, US or otherwise.
      • Patents are very specific; no one patented capacitive multi-touch tablet ..

        @spark555: ... device before Apple.

        <b>And no one patented design of a tablet as completely flat surface before Apple. All other designs had shaped borders, including Samsung's own tablets prior Galaxy (and iPad).</b>

        So Apple's products are patented all in and out on many levels. From outer form to multi-touch GUI gestures and behaviour.
    • RE: Patent enforcement: It's your move, Apple

      KHess appears to be incapable of finding or addressing the actual community design which the german court injunction was based upon.

      Here it is, for him, and everyone else to examine:
      • RE: Patent enforcement: It's your move, Apple

        LOL, obviously you aren't particular about your sources. Why don't you check Reuters and the German announcement link that I posted. Seriously, dude, scribd...LOL. That's a social network. Check the real sources on the issue. It's about patent law no matter how you spin it.
      • Dont try to prove this with facts...


        You must understand that the US patent references are invisible in all the texts. Nobody can see them apparently.

        LOL It should be funny but it's not. Lucas failed to stop a guy selling replica star wars masks a few eeks ago as the patent wasn't enforcable in the UK. Some muppet reporting it suggested that all patents should be bound up and enforcable. Great idea except some muppets clearly believe US patents are HOLY and the only thing of importance in the world.
      • RE: Patent enforcement: It's your move, Apple

        [i]the recent European court ruling was based on a European "community design" which does not require claims, is not subject to a prior art search, and in general is not the same thing as a patent, US, European, or otherwise.[/i]

        If that's the case, wouldn't HP have the right to sue Apple for copying it's OmniShare device, sold circa 1995, which the iPad resembles quite a bit if you ignore that the OmniShare was not wireless?

        Of course that's just my opinion, I could be wrong.
      • RE: Patent enforcement: It's your move, Apple


        Yes, HP in theory could follow Apple's lead and attempt to get a court injunction in Europe for their design work from the mid 1990's. This assumes that:

        1. They shipped product in Europe during that time.

        2. They filed a community design on it (at a point which may be before the Euro community design process (which is NOT A PATENT KEN HESS) existed).

        3. They decided to actually try and make a case out of it instead of just shipping a superior product.
      • Perhaps It Would Be Funny If the Scribd Reference Weren't Correct

        Perhaps it would be funny that he referenced Scribd if that reference weren't correct. As it stands, that reference is correct, and your article appears to be the bad joke in comparison.

        Here is Glyn Moody's article, which actually gets it correctly:
      • RE: Patent enforcement: It's your move, Apple

        @spark555 You are correct, the article is wrong.

        The Apple action in Dusseldorf did not bring up patents, as anybody who actually read their lawsuit would know.

        It only referenced the infamous vague rounded rectangle EU Community Design and a claimed similar packaging (white box, color pic, product under lid).
    • RE: Patent enforcement: It's your move, Apple


      If a company has earned a sizable chunk of their respective market, is it right that the competition produce and sell products that almost "completely" mimic the exterior design of that company...though not an "exact" reproduction?

      Would be safe to assume that the competition has used the advantage of knowing that the average consumer would accept these "near" copies to try to take market share from the company that produced the original design?

      We all know Apple has been doing well. Good. Great. But all the people that says, "big, bad Apple whining about similar handset designs..." haven't put themselves in Apple's shoes ---- if you spent millions on R&D, marketing, and distribution for a product that become iconic, would you be aggressive at protecting the value of your own product? If you just sat back and let all the miscellaneous competitors basically copy your design, the value of your product and company would quickly disappear. That are numerous companies that have come & gone b/c their own innovative product was copied, they thought they didn't have to defend initial designs, and then they were left behind with designs based on what they started.

      This is important. I hope Apple wins.
      • RE: Patent enforcement: It's your move, Apple


        FYI: They actually [i]did[/i] assert patent claims, as well as the EU Community Design filings from 2001 or so, (long before there were any iPads to protect) against Samsung in Holland. If the ruling goes against them there they will have to stop selling Galaxy Tabs as of Oct. 13th.

        Since Apple can't meet demand for its products at this time granting the injunction against Samsung creates an artificial shortage of available products to consumers, to their detriment. Now [i]that[/i] is important. I hope you (come to) understand. Punishing the consumer is Apple's duty. Don't hold it against them. <(^B)<
        Still Lynn
  • Apple's next move: Find a new primary supplier?

    That will be just one of the outcomes of their litigious ways.

    The other will be a stiff counter suit by Samsung.

    Seriously, if you look at their complaint to the US ITC, there are a few patent references plus what is called 'Trade Dress'.

    I don't know about you Ken, but if you read the specific details regarding trade dress, they are taking exception to 'rounded corners', beveled edges, black margins around the periphery of the touch screen.

    Honestly, this comes across as a 'frivilous' law suit when I read it and quite frankly any manufacturer who was first to market would have made sensible design considerations that would have resulted in similarities.

    This is a falling out of the relationship between Apple and Samsung and it isn't going to help Apple if Samsung raises component prices or simply drops Apple all together.
    Dietrich T. Schmitz *Your
    • RE: Patent enforcement: It's your move, Apple

      @Dietrich T. Schmitz * Your Linux Advocate

      Actually, no it's not. Take a look at that picture, and tell me which device is which?
      The one and only, Cylon Centurion
      • RE: Patent enforcement: It's your move, Apple

        @Cylon Centurion
        The one with the Samsung logo is the Samsung phone.