Forget the Apple vs Samsung courtroom drama: what really should be on trial is the broken nature of patents and the so-called intellectual property industry.

Steve Jobs wasn't a fan of Android. He thought it was a rip-off of the iPhone. He saw the iPhone as a ground-breaker and Android as an attempt by Google and a consortium of device manufacturers to bring a similar product to a wider market.

But Android had been under development since 2003 and was purchased by Google in 2005, two years before the advent of the iPhone. Granted, its later development was undoubtedly influenced by the range of features incorporated in the iPhone, and the potential and scope of Nokia's Maemo project.

Jobs saw it as more than that. He famously told his biographer Walter Isaacson that he would "spend my last dying breath if I need to" and "every penny of Apple's $40bn in the bank" to right the perceived wrong done to Apple by Google. "I'm going to destroy Android," he pronounced, "because it's a stolen product...".

Jobs' quest led indirectly to the decision of a US court to award Apple $1bn in damages, and to place an injunction on Samsung distributing some of its product in the US.

But the case was merely the latest performance of a travelling roadshow that has made appearances in courts from South Korea to California, and involves claim and counter claim about the theft and ownership of the ideas and look and feel of a smartphone or a touch pad.

Pre-iPhone smartphones and touchpads

Theft is an emotional concept and technology is a complex proving ground. The iPhone is an elegant synthesis of intricate ideas and technologies that had gone before, many of them originally developed, patented and supplied by companies such as Samsung and Motorola - now owned by Google. Smartphones and touchpads existed before the iPhone.

Samsung says it has spent billions on research into mobile technologies over the past 25 years and noted in its own submissions to the court that "the flash memory, main memory, and application processor for the iPhone" are supplied by Samsung.

It said it "also manufactures Apple's A5X processor and is the sole supplier of the Retina display used in the new iPad". It also initiated many of the wireless standards and technologies that make it possible for an iPhone to talk to other phones.

Apple's distinctive contribution has been collation and design, derived from an understanding of why and how a smartphone could and would be useful and attractive to an end user, and which features would enhance that effect.

Apple has made geek toys, in the shape of the iPod, the iPhone and the iPad, accessible to the masses - and has managed the trick of transforming these toys into both useful accessories of everyday life and objects of desire to those who feel the pull.

Apple's debt to 1960s Braun

Many of Jonathan Ive's designs for Apple draw on the work of Dieter Rams for Braun in the 1960s. The iPod, iPhone and iPad are instantly recognisable for their cleanliness and simplicity - and the software is focused on simplifying the tasks of the end user.

Apple's talent has been to transform utility into an art form, to reduce apparent complexity and anticipate the wants of the user.

Apple has understood that elegance is as important as utility, and has traded on the style and excellence of its products - so an iPod, an iPhone or and iPad is not only hard wearing and useful but is also a desirable accessory for which some kinds of user are willing to queue and pay a premium.

By collating the possibilities of the smartphone, and pulling together the virtues of design and utility, Apple has lifted the concept of smart devices to browse the web from geek heaven into user space, which makes it all the more surprising how little attention other device and computer manufacturers have paid to the role of design in selling hardware.

Rams' explanation is that "good design can normally only emerge if there is a strong relationship between an entrepreneur and the head of design. At Apple this situation existed - between Steve Jobs and Jony Ive."

"Apple has managed to achieve what I never achieved," he observed, "using the power of their products to persuade people to queue to buy them. For me, I had to queue to receive food at the end of World War II...".

Polish, shine and intellectual property

But the bigger issue isn't copying, or imitation, but the broken nature of the patent and so-called intellectual property industries.

In an industry where last year's must-have is already out of date, there is something obscene about a court case that involves, among other things, a dispute about patents and design registrations such as the one "for overall design of the product, including the rectangular shape, the rounded corners, the silver edges, the black face, and the display of 16 colorful icons".

Or the one "for the configuration of a rectangular handheld mobile digital electronic device with rounded corners". These are not technological or design innovations. They are the polish and shine of a product, and are also obvious.

Strenuous tests of originality

In theory, patents or design registrations are granted only after strenuous tests of originality and appropriateness have been met, and should only be conferred on inventions that are entirely original, are not obvious, and have the potential to transform the way things are done.

In practice, there has been a proliferation of trivial and contestable patents over the past three decades, especially software and method patents, triggered by a relaxation of the rules by the United States Patent and Trademark Office (USPTO), which has progressively lowered the bar for patent and other intellectual property claims.

The decision of the court to punish Samsung for its intrusion into the markets Apple considers its own, and in the words of Samsung's press release "to give one company a monopoly over rectangles with rounded corners, or technology that is being improved every day by Samsung and other companies" is symptomatic of the ongoing crisis in the creative and technological industries.

Innovation and competition are subservient to the ownership of the expression of ideas.

Good design captures the Zeitgeist, and sometimes leads the way in forming and informing popular taste. But it should not be the subject of patent or intellectual property spats, or be allowed to spread the notion that the rights to ideas and tastes or look and feel can be owned.

When one company, or one technology, is allowed to lock down the market and own the way we do things, the result is ossification.

The end-game

The decision against Samsung is just the latest event in the war. It is bad news for everybody, not least the users and developers of Android and the iPhone, as each of these companies scrambles to buy up the ownership of patents.

As Google's chief legal officer, David Drummond, put it last year: "A smartphone might involve as many as 250,000 largely questionable patent claims, and our competitors want to impose a tax for these dubious patents that makes Android devices more expensive for consumers. They want to make it harder for manufacturers to sell Android devices. Instead of competing by building new features or devices, they are fighting through litigation."

The more likely outcome is the squandering of billions of dollars on years of endless litigation and counter litigation, by which time the iPad, iOS and Android may be a distant memory and will look as good as the fashions and designs of the seventies. Innovators win by staying one step ahead of the competition, not by fighting in the bike shed.