After finding Samsung liable for more than $1 billion in damages for infringing Apple’s iPhone and iPad patents, members of a federal jury told reporters that they hoped to deter companies from copying one another instead of developing their own designs and features. That’s a laudable goal, and the public would surely benefit from more choice and differentiation among products. The challenge is in distinguishing between the sorts of innovations that should receive patent protection and the ones that shouldn’t.

We don’t mean to second-guess the jurors or defend Samsung, which was found to have deliberately imitated Apple’s iPhone designs and some of its functions. If companies were able to wait for their rivals to come up with successful devices, then rush out copycat versions with confusingly similar features, there would be less money spent on R&D; and more on marketing.

Nevertheless, it’s worth remembering that Apple made its name building successful, even iconic products based on ideas that other companies pioneered. The iPhone, for example, was a significantly better version of the smartphones Nokia introduced more than a decade earlier. Innovation is by its nature an iterative process, and good patent policy creates an incentive to innovate more. Bad policy just makes it easier for patent holders to extract royalties from anyone venturing within reach of their claims.

The risk is especially great in the area of patents on design, such as the ones that covered the look and feel of Apple’s iPhones. There’s a fine line between designs that are purely decorative (which, oddly enough, are the ones eligible for patents) and those that serve a function (which aren’t). For example, do rounded corners on a phone simply help set it apart, or do they make the device slip more easily in and out of a pocket?


One safeguard against overly broad or unjustified patents is to provide the U.S. Patent and Trademark Office the resources needed to give applications enough scrutiny. Congress took an important step in that direction with the patent-reform law it passed last year. But the courts have played a critical role in defining what is patentable, and the big judgment in Apple’s favor is likely to invite more claims that stretch the boundaries of reasonableness. If Apple’s win slows the wonderfully frenetic pace of product development in mobile devices and leads companies to battle in courts instead of the marketplace, consumers will be the ultimate losers.