Apple Worked A Broken Patent System

Apple used a dysfunctional U.S. patent system to gain excessive control over technologies it did not invent. If you value innovation, don't cheer Samsung's punishment.

Samsung too closely copied some elements of the Apple iPhone, and for that it should be hung up in the public square. But Samsung should be hung by its thumbs, at worst, not its neck.

Copying in some measure is all around us. It is continuously present in many parts of a free enterprise system and in some ways is a yardstick to the health of that system. I often see small, muscular-looking cars with lines similar to the BMW 300 series, but they have Swedish or Japanese nameplates on them. Watching what sells is a basic premise of anyone engaged in a competitive race. Matching a competitor under your own brand is a time-honored practice.

What a patent and legal system should aim to prevent is theft by copying, such as stealing the technology of a competitor's product, or creating such a conscious, copycat duplication that one product can be confused with another, thus letting the profits of an originator be taken by an imitator. Samsung did not do this.

Samsung's icon layout on its application screen looks similar to Apple's home screen, but beyond that, the jury's verdict in the Apple vs. Samsung case is a muddle, a confusion of design patents put in the same category as utility patents, and the verdict for infringing design looks as punitive as one for stealing technology.

[ Take a look at Samsung's newest smartphones. See Samsung Galaxy Note 2, Windows 8 Smartphones: First Impressions. ]

That shouldn't have been the case. Utility patents are protection for a unique invention, a kind of monopoly granted for 20 years after an examiner determines that no such inventions existed previously or can be found in what's known as prior art.

Design patents are generally agreed to be more subjective. They're good for 14 years, and spring from an 1891 court case that found one silverware manufacturer had copied the pattern of another.

If the "ordinary observer" can detect "substantial similarity" in one silverware pattern versus another, the original's design has been infringed, ruled the Supreme Court. And that's still the standard used in a design patent case involving two sophisticated, multi-layered electronic devices today.

Designs are established through the black and white drawings of exterior ornamentation submitted with the patent claim. In this trial, four Apple design patents were the central issue. Jurors' comments to the press after the trial indicate they were crucial in determining the outcome.

Until now, design patents have tended to play a much smaller role in computing and consumer electronics. For example, of the 6,242 patent examiners in the U.S. Patent Office, 99 of them are design examiners. The rest are utility patent examiners.

Yet, as computers shrink to handheld size, the role of design patents gets magnified. In smartphone design the evolving functional elements, such as the size of the touchscreen, are closely tied into the overall design. Apple didn't invent the capacitive resistance touchscreen, where the electrical field of a human finger makes a connection on the conducting surface of a piece of glass. But its core design patent on the iPhone covers a large, rectangular screen on a handheld device with rounded corners, much as you would now expect a touchscreen to be implemented. There are other elements, but the screen-centric design figures heavily into the iPhone's and iPad's respective design patents.

Apple has used a dysfunctional U.S. patent system--too many patents granted without enough understanding of the state of the art--to prosecute this case.

One of Apple's utility or technology patents covered snapback, a user interface feature that has been taught in computer graphics courses for 10 years, according to testimony at the trial. Either the examiner who approved the patent was not aware of that, or he judged Apple's application of snapback on a phone screen to be a first-ever invention. Whichever way it went, the existence of prior art should have prevented this patent from being issued.

When it comes to the smartphone, Apple's design patents come too close for comfort to giving Apple control of underlying technologies it did not invent, simply because it has asserted ownership of the design. The iPhone and iPad were brilliant design packages, and Apple deserves all the profits it has gained from them.

But the emergence of capacitive resistance screens would sooner or later have allowed many companies to eliminate keypads and produce devices with screen-centric designs. In many cases, they would have been following Apple's lead--let's say copying a good idea in their own way. And the result would be a vigorous, competitive economy and consumer choice.

A more demanding patent system with fewer patents issued would still have left Apple with the leadership position in the market and the respect of consumers who like its products. But it would have been obligated to continue to innovate instead of using patent law to slow or stifle competitors.

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