Apple v. Samsung: Gaming a Dysfunctional System ...
"I will spend my last dying breath if I need to and I will spend every penny of Apple's $40 billion in the bank to right this wrong. I'm going to destroy Android because it's a stolen product. I'm willing to go to thermonuclear war on this." - Steve Jobs -
The two articles below on the recentluy concluded Apple v. Samsung (Case No. 11-CV-01846-LHK US District Court, N.D. California, San Jose Division) jury trial presided over by District Judge Lucy H. Koh were written by veteran tech journalist Charles Babcock who attended the circus ...
>> 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.
Charles Babcock
Information Week
Aug 31, 2012
tinyurl.com
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.
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.
The penalty for not putting some limit on the role of design patents and the subjective nature of determining when they've been infringed is to grant Apple too much control over the smartphone's future layout.
On a smartphone, some of the design elements are dictated by function, such as the speaker hole in the iPhone's design. Yet Apple's designers insisted it was another design element, and it was essential that it be where it was for the iPhone design to be unique and beautiful. One of the principles of patent law is that patents can't allocate ownership of functional elements. BMW cannot patent the position of the steering wheel in a 318, and then prevent Volvo and Honda from putting it in the same place. On many smartphones, the speaker hole is located in roughly the same place. It has to be.
Patent drawings show nothing about how the user interface has been implemented or how navigating through one device differentiates it from others. Samsung's Galaxy line, for example, boots up with the Samsung label prominent on the screen, followed by a sunburst pattern, a mechanical voice saying "Android," and a home screen that looks completely different from Apple's. It's only after you navigate several steps beyond the home screen that you come to an application screen that looks something like Apple's, except for the four touchscreen buttons at the bottom. (Apple has one button.)
None of this extended user experience can be captured in a patent's drawings or taken into consideration at a trial on design patents.
Other manufacturers can avoid their own day in court by designing smartphones, with say, triangular screens, giving up half of the face's real estate to avoid jousting with Apple attorneys. Or they could use oval screens, which aren't so good for viewing Netflix films or the standard rectangular content of Web pages. There are probably more subtle ways to escape the design patent net.
If it's true that in one part of its user interface, the Galaxy's application screen, Samsung crossed the line in mimicking the iPhone look, it's also true Apple shouldn't hold some of the patents that it does.
To sit through this trial, as I did, was a little like vacationing inside a sausage factory, seeing sights that you don't necessarily wish to see. Many technologies, including the smartphone, evolve out of hard work done by predecessor inventors. At the time of invention, some of them are rough or not able to fit precisely into the capabilities of computers available at the time. But they become useful at a later date.
The sight most memorable for me during the trial was Apple attorney Harold McElhinny mocking the kludgy, Mitsubishi Lab's DiamondTouch worktable in his closing statement. The DiamondTouch was an early attempt at producing a collaborative work table, with the activities of its users captured on a touch-sensitive surface.
The DiamondTouch starts out with a projector, which looks something like a post, with a cement block affixed to its base. The projector's light shines down on the table where finger gestures by any of the four collaborators around it can be tracked and captured on a PC, wired to the chairs.
Having previously assembled all the ungainly parts in the courtroom, McElhinny said: "It's hard to imagine holding the Diamond Touch in your hand and making a phone call."
This was a statement that the jury could understand. But it's a specific instance of confusing the style of something with an innovation captured in its underlying technology. The DiamondTouch is an early implementation of snapback and thus prior art. Its implementation was crude, allowing a user to scroll through a digital object, reach a boundary, then be pulled back to the point of origin of the scroll. Apple's patented snapback pulls a user from the edge of an electronic document back to a central point.
McElhinny obfuscated the prior art issue by contrasting DiamondTouch's clunky external design with the sleek iPhone. With the information available, another jury might hold Apple's snapback patent invalid.
If you believe the U.S. Patent Office issues too many patents, then the outcome of this trial takes on a different cast. Yes, infringers should be made to pay, but what if some of those 200 patents on the iPhone should never have been granted in the first place? I am particularly wary of parties that think they should own user interface features and their underlying software algorithms.
Apple believes its market leadership and patents means it owns key elements of modern smartphone design.
"I will spend my last dying breath if I need to and I will spend every penny of Apple's $40 billion in the bank to right this wrong. I'm going to destroy Android because it's a stolen product. I'm willing to go to thermonuclear war on this," Steve Jobs told his biographer, Walter Isaacson (Steve Jobs, page 512).
No wonder Apple and Samsung couldn't reach a settlement. This case is a rough replay of Apple suing Microsoft many years ago when Apple believed it was owner of the graphical user interface. In that case, it was well documented that both Steve Jobs and an Apple design team had visited Xerox PARC to see the first mouse-driven, graphical user interface available, then adopted its elements for the Macintosh. That case didn't get very far.
In Apple vs. Samsung, a jury has given Apple a huge victory in smartphone design and user interface ownership, the one it missed out on before. Apple is using an overworked and dysfunctional U.S. Patent Office to make sure it owns so many parts of the smartphone that competitors may be forced to use secondary or inferior designs to circumvent that ownership.
>> Apple Wins $1.05 Billion In Samsung Patent Case
Rather than risk a loss similar to Samsung's, rival smartphone makers will now likely give the Apple iPhone design a wide berth, legal experts say.
Charles Babcock
InformationWeek
August 25, 2012
tinyurl.com
Left alone with a complex task and millions of dollars of testimony from expert witnesses and patent law gurus in mind, the jury in the Apple vs. Samsung patent case took just three days to deliver a verdict. Jurors came down heavily on the side of Apple, saying the Korean company had willfully infringed four design and three utility patents at stake in the trial. The total bill comes to $1.05 billion that Samsung owes for the infringement.
In what must be a bitter pill for the Korean company, the jury also said Apple had not infringed any of the five patents on which Samsung had countersued. Regardless of which side won the jury trial, attorneys for both companies indicated during the trial that they were putting evidence on the record for an appeal.
"This is a resounding victory, not for only Apple and its intellectual property portfolio, but also designers and design rights in general. This verdict strengthens strengthens Apple's design identity, which has arguably has been watered down as each new Apple-like device hit the market," said attorney Christopher Carani, chairman of the American Bar Association's design rights committee.
By winning this case, Apple will force competitors to come up with their own distinctive designs. Rather than face the prospect of another Apple suit, rival phone makers will give the iPhone design a wide berth--yielding more space around its design elements than perhaps necessary, Carani predicted.
Samsung had tried to show that it had not copied Apple's design ideas or, alternatively, that the patents that it infringed if infringement had occurred were invalid. Apple had been seeking between $2.5 and $2.75 billion in damages.
Apple's Strategy
While some legal experts had expected the jury to take a week or more to digest the complicated case, the jury began deliberating the case on Wednesday morning and finished on Friday.
The jury also held that all of Apple's disputed patents were valid. It declined to award damages for Apple's claimed harm at the hands of a Samsung monopoly, a charge stemming from Samsung's success in getting technology covered by two of its patents into the 3GPP standard for wireless networks.
The jury of seven men and two women, all drawn from the San Jose area, seemed to harbor no doubt that Apple had invested heavily in establishing the identity, unique characteristics, and user interface of both the iPad and iPhone. Apple's legal team also convinced them that Samsung had infringed Apple's trade dress, the general impression and presentation of a product that's gained a distinctive identity in the marketplace.
To that end, Apple put professors in marketing and market research on the stand to establish that it is one of the most successful practitioners of trade dress in modern business history. One of them said he uses Apple as an example of the craft in his marketing course. Even Michael Wagner, a Samsung witness and accounting expert who tried to diminish Apple's damage claims, conceded that a J. D. Power survey showed that Apple was number one in design when it came to smart phone purchases.
Apple built a convincing narrative into its case--that Samsung had sought to revive its flagging fortunes when it found itself falling behind in the smart phone marketplace. Wherever Apple's legal team could, it used Samsung's own competitive analysis documents to cite, in Samsung's words, "a crisis in design" relating to Samsung lagging behind the iPhone. A key Samsung designer, Jeeyuen Wang, testified she suffered lost time with her newborn child when Samsung staged a three month push to revise designs and get new models into the marketplace.
No Slap On The Wrist
Apple's attorneys Harold McElhinny, Bill Lee, Michael Jacobs, and Rachael Kravens argued that Samsung needed to be hit with heavy damages, not "a slap on the wrist," in a decision on the case. McElhinny argued that giving Apple some damages and Samsung some damages at the same time would "compromise" the necessary lesson of the case.
Other Apple officials explained how Apple had spent four years in the design and mockup phase, leading to the launch of the iPhone in January, 2007. Apple invested $1 billion in marketing and advertising the iPhone after its launch.
Justin Denison, chief strategy officer for Samsung Telecommunications America, testified that Samsung had invested $1 billion in marketing and advertising its Galaxy S III and related smart phones. Apple used that information against Samsung by saying it was promoting another company's "ripped off" design without the research and development expense.
Samsung is a supplier to several major telecommunications carriers and Samsung officials said they were under pressure after the iPhone's launch to produce models that they could sell against the iPhone. Samsung produces many phones that do not have the iPhone's rounded corners and big screen look, in addition to those phones found guilty of infringing in this case.
Among the phones being considered in this case, a total of 24 smart phones were found guilty of infringing, with only the Galaxy Ace, the Intercept, and the Replenish escaping some or most of the claims. The Galaxy S III and its many variants and successors were held to have infringed most of Apple's patent claims. One of them, the Fascinate, was held accountable for a total $143 million in damages.
Samsung's own attorneys seemed to have a sense of foreboding as the trial neared its end. Charles Verhoeven, speaking for Samsung in his closing argument, charged that Apple had wildly inflated the damage claims through a highly paid expert. "We don't think Samsung should have to pay any damages," he said, then devoted a good measure of his closing argument time to trying to reduce the total Samsung might have to pay. If the jury decided in favor of Apple, he added, "please use your common sense," he pleaded at the end.
Meanwhile, Apple's Bill Lee pointed out that Samsung had made $8 billion in revenue during the period for which Apple was charging infringement. "Do they get a 'get out of jail' card free?" he challenged the jurors.
Some of the claims against Samsung's two tablets, the Galaxy Tab 7 and Galaxy Tab 10.1, were dismissed by the jury. Apple's suit was filed in April 2011. Jury selection got underway July 30, and testimony was taken through the first three weeks of August. ###
The Author: Charles Babcock is an editor-at-large for InformationWeek, having joined the publication in 2003. He is the former editor-in-chief of Digital News, former software editor of Computerworld and former technology editor of Interactive Week. He is a graduate of Syracuse University where he obtained a bachelor's degree in journalism. ###
- Eric - |
