Patent enforcement: It's your move, Apple

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.
Written by Ken Hess, Contributor

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:

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