Apple: Samsung ripped off our phone patent! USPTO: What patent? The US Patent and Trademark Office (USPTO) could be set to deal a significant blow to the $548m payout Apple is due from Samsung by invalidating a key patent in the case. According to a preliminary judgment obtained by blogger Florian Mueller, the USPTO has decided that one of Apple's smartphone design patents, filed in 2008, …
On the one hand, I think that Apple have something of a point in that, taken as a whole, the design has a measure of originality to it.
Oh the other hand, that doesn't make any it non-obvious from the point of view of granting a patent.
Take the single button at the bottom - that's Palm and probably others besides. The large screen, well, that's really just a decision not to have a keyboard and so once you decide you won't have one, extending the screen as far down as possible cannot possibly be considered anything other than obvious. What's the alternative? Leave the space just as plain plastic?
As for the shape, well it's a f%$king rounded rectangle, which - confining ourselves to mobile communications - was the shape of numerous mobile phones well before the iPhone.
So what do you have? A PDA with the keyboard removed and then shaped like a phone.
And if that is 'non-obvious' to the folks at the USPTO, or indeed a judge, then one suspects that those holding the aforementioned positions might be better placed to carry out their responsibilities to the public if they had even the barest understanding of the subjects they were dealing with.
It isn't just prior art. The principle of engineering known as rounded corners was forced upon the makers of Liberty Ships during the early 1940's. Previous attempts to weld vessels together with large square holes in them came apart in the Atlantic.
The process of making rounded windows especially for ships probably goes back to the time of Noah but was largely forgotten just in time to make the Comet Britain's epic Fail of the 1950's
I would have thought the Sorks would know about ship building principles or don't they apply to mobile phones over there?
@Keef, yes we need a patent system - one that works as a patent system should - protect genuine innovation in products.
Not a mickey mouse system that lets everything in only to find that even bus and tram tickets are likely to end up getting a patent application hundreds of years after they were first used.
Rounded corners? Just like kids had on their school slate boards, the ones with a wooden edge round the slate. Slate, the black or grey stuff they wrote on, you know looks like a grown up iPad.
Just to be clear, this dispute is over a Design Patent - what we in the UK would instead call 'Trade Dress', like the shape of branded cola bottle or car radiator grill. What we think of as real, proper patents are referred to in the US as 'Utility Patents'.
This confusion isn't helped that in the US it is the same organisation that registers Patents and Trademarks.... indeed the clue in in the name: United States Patent and Trademark Office.
"Trade dress" makes more sense; it implies the look or visual recognition of the item. That said something as bland as a rectangle with rounded corners, IMHO, should not be allowed as "trade dress". Producing products with a decidedly minimalist bent can not automatically grant the producer trade dress rights on all minimalist designs. There has to be something unique about it, like the huge Apple logo on the back.
IIRC, the US patent system will basically take your registration fee and register it... They leave the arguments of prior art to be sorted out later in court.
In other parts of the world you have to pay for a search to ensure your patent isn't already registered, and it's actually checked to see if it's even worthy of a patent before you can actually go about registering.
You can see how the US one would be more profitable for the patent office, and the lawyers a few years later,
Other parts of the world are not confusing by calling it a Design Patent. It's a Registered Design and more to do with copyright than patents. Unlike the fluted coke bottle it's too generic and on that basis shouldn't be eligible. Prior art doesn't even need to be considered.
This one was actually rightfully rejected - and for amusing reasons.
The patent that Apple is asserting in this case was filed using a dubious method - they take an earlier failed patent application and submit a completely different concept as a refiling, so that if it's granted, the patent will receive the filing date of the earlier first filing.
This is where things get interesting. The original filing was made in January 2007 - making it before the iPhone's release. When the USPTO reviewed this patent in the course of the case, they noted that the design patent granted differed substantially from the initial application. Because of this, they changed the filing date to when the refiling was submitted, which was August 2008.
So the two pieces of prior art that invalidate the iPhone's design patent are the iPhone and iPhone 3G! Whoops.
This one was actually rightfully rejected - and for amusing reasons.
The patent that Apple is asserting in this case was filed using a dubious method - they take an earlier failed patent application and submit a completely different concept as a refiling, so that if it's granted, the patent will receive the filing date of the earlier first filing.
This is where things get interesting. The original filing was made in January 2007 - making it before the iPhone's release. When the USPTO reviewed this patent in the course of the case, they noted that the design patent granted differed substantially from the initial application. Because of this, they changed the filing date to when the refiling was submitted, which was August 2008.
So the two pieces of prior art that invalidate the iPhone's design patent are the iPhone and iPhone 3G! Whoops.
Not sure what you are quoting against here but if the USPTO denied the claimed priority date and then accepted that the new filing was permissible but restricted to priority based on its filing date the design patent would still be valid... assuming no prior art. I think basically you are suggesting Apple tried to wing an earlier priority date based on different prior art but then I get the impression that the new stuff was sufficiently new to warrant a grant.
I make no mention as to the flexibility of the rubber stamp used by the USPTO.
Not wishing to give Tim and Apple a glimmer of hope but if they want my BACS details just reply to this message.
In terms of amusement the 'classic' one is, in the case of 'proper patents', where the applicant makes a filing and, fingers crossed, having lost priority on the prior art that they filed themselves make no mention of it in their most recent application and then get their most recent application rejected on the basis of their own prior art.
If I were to be a 'patent examiner' one of the first things I would be inclined to do during search is to look for prior art from the applicants themselves. Given I am not a 'patent examiner' I do not know what policy is on such matters but I would be in two minds as to whether to string them along for more fees before dumping on them or dumping on them immediately in order to prevent them raking in cash from unsuspecting investors as a result of their 'patent pending' technology.
Having had a little think I would be inclined to impose fines against people who would think about taking the piss in such a manner.
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I'd personally like the The US Patent and Trademark Office (USPTO) to be KILLED OFF and started again entirely from scratch. The US Patent and Trademark Office (USPTO) is INCOMPETENT, SLOW, UNDER-STAFFED and UNDER-FUNDED. They are A DETRIMENT TO THE USA and THE WORLD.
Kill The US Patent and Trademark Office (USPTO).
How is it that NOW, after all this debacle, the USPTO gets around to figuring out there's prior art regarding a patent THEY approved? To hell with this worthless agency. START AGAIN and DO IT RIGHT THIS TIME.
"Kill The US Patent and Trademark Office (USPTO)."
A bit extreme, and what's to say that what replaces it won't be worse?
Simple fix: A handling fee, based on the company's/individual's net worth, that gets refunded if the patent is approved. If not, the USPTO adds it to the budget.
Now, how often do you think they'll approve a patent from US Megacorp if it means refunding a multi million dollar handling fee?
>>based on the company's/individual's net worth
So, I'm IBM and I decide to have the inventors on staff patent things under their name - then assign/transfer it to the company upon approval for some previously established but undisclosed sum.
Yeah, that won't work.
Much simpler fix,
When a patent is granted the company has to produce and sell products that utilise the patent, after a 2 year period after manufacturing has stopped, they loose rights to the patent, and it becomes free for all to use.
When a patent is granted the company has to produce and sell products that utilise the patent, after a 2 year period after manufacturing has stopped, they loose rights to the patent, and it becomes free for all to use.
but what happens if that company then tightens rights to the patent? Does it then revert back to them?
"Much simpler fix, When a patent is granted the company has to produce and sell products that utilise the patent, after a 2 year period after manufacturing has stopped, they loose rights to the patent, and it becomes free for all to use."
Simpler? I can already see a couple of loopholes. Solutions welcome.
1) As written, a patent holder could produce minimal quantities of the patented item (e.g., 1 item per 2 years), and sell it to themselves for a penny each. Outcome: Perpetual patents. If perpetual patents are a problem, obvious solutions involve defining production and sales requirements. But the requirements might deter John Doe, an inventor working in his garage, from squatting on his idle patents is still trivial for Apple. Then you get into sliding scales of production and sales requirements by patent holder income. The regulations are unlikely to be simple, unless I'm missing a trick - which is entirely possible.
2) Production and sales interference. If Apple decides it doesn't like John "Garage Inventor" Doe's competition, or decides it wants John Doe's patent for less than the $5 bajillion John is demanding, then it can try to interfere with production and sales. It might buy necessary components or discourage suppliers from selling to John, and it might tell major vendors of Apple goods that its sales will go elsewhere if they carry Doe goods. As a simpler end run, it might just sue John Doe for patent infringement and tie him up in court for two years until his patent expires. The regulations to prevent abuse of this sort are unlikely to be simple though, again, I might be missing something.
I like the basic premise of "use it or lose it" patents, but I don't think it'd be simple to implement.
That is how it is already done. You work for XYZ corp, and you invent something, the corp usually has the ownership of the patent, you register it in your name but the patent is assigned to, and all resulting possible revenue belongs to the corporation.
...You used the word "kill" and cited a US government department. You are now on an NSA watchlist (as am I probably)....
Oh Dear!! I have recently been writing quite a lot of technical commentary about US Government abattoir legislation....
I think YOU should USE MORE block CAPITALS. It makes for a TERRIFIC reading EXPERIENCE.
But congratulations on kicking off the inevitable chorus of commentators posting the same tired, unworkable "solutions" to the problems with the patent system, such as non-transferability and eliminating NPE ownership. We never get tired of seeing those same proposals in the comments for every single story that mentions patents.
But congratulations on kicking off the inevitable chorus of commentators posting the same tired, unworkable "solutions" to the problems with the patent system, such as non-transferability and eliminating NPE ownership. We never get tired of seeing those same proposals in the comments for every single story that mentions patents.
Is this your example of a comment worth making?
Once upon a time, you had, as part of the patent process, submit a model of the item. Then the rule changed you had to do a search for prior art. Somewhere, by heavy lobbying, this rule got tossed probably on the excuse that the "little guy" couldn't afford the search but this also saved the big guys a lot of dollars.
Government is not our friend and today, it would appear that it's not Apple's friend either.
I do have to think that a tachometer hooked up to Jobs would be a max right about now....
Well, the entire case kinda stinks of protectionism tbh.
The fact that 'rectangular electronic device with round corners' was considered something that you could put a design patent on in the first place is highly questionable; the judges decision to find in Apple's favour on it is even more so, and the insane half-billion compensation yet more ridiculous. The fact that both sides dropped their various infringement claims everywhere except the US is pretty telling, really.
But as noted above, it's not about the concept.
This is a design patent, not a "real" one. In the UK, it would be a registered design. The only concept here is about the shape of a phone/music player/PDA/novelty item/toy.
In the UK prosecuting for infingement of a registered design can be tough. If the shape of the screen (marked out in the original document) were different, then it could fail. Changing the shape of the control button to a rectangle could be enough. It's not a coincidence that Samsung have rectangular buttons on all their phones rather than circular ones.
Yes, calling it a "design patent" leads to confusion with utility patents. But they are different things. It's a bit like "Java" and "Javascript". People who read (and comment on the Register) will know the difference. People in the wider world, maybe not.
No a blogger reported this had happened - Samsung, no doubt, requested the patent review (Shame Groklaw is no longer active to find out the exact paper trail!)
Also, on a side note, we haven't heard Florian Mueller's name for a while. I wonder who his paymaster is now-a-days? Surely it's not Samsung?
No, no, this isn't the Apple/Microsoft Florian Mueller - this is a quite different,non-infringing design of Florian Mueller from Samsung. You can tell the difference because on this one, the battery is removable and you can insert an SD card.
Patent or not, it's plain to anyone without bias and with eyes that Samsung copied Apple's design. They did it Nokia. They did it to Blackberry. They've done it to Sony in other electronics markets. What we have been arguing over in all reality is the morality of Apple suing Samsung. Those that claim Apple copied the LG Prada/other previously released Samsung device/tobacco tin etc. are the ones with strong biases and/or possibly poorly functioning vision. Or just blind Samsung fanboys, which is plain creepy. Groklaw was biased, despite what Pam claimed. She is/was not better than Florien Muller...
"Patent or not, it's plain to anyone without bias and with eyes that Samsung copied Apple's design."
Yes, but the real question is, who's design did Apple copy? Because whoever that is can apparently get half a billion quid in compensation from Samsung, and presumably even more from Apple...
It's not a design.
Rounding corners of rectangular things, (kids books, toys, radios, gadgets, MP3 players, solar panels, phones etc) is a standard engineering approach that people have been implementing since they started making rectangular things.
Where is my ancient Roman/Greek/Babylonian/Hebrew/Chinese tablet icon?
"It's not a design."
Indeed. To get it registered as a design Apple had to pretend that there was something special about the exact curvature and that this was non-functional. The moment you suggest that rounded corners make the thing easier to hold or to put in a pocket it becomes functional - and so is excluded from the scope of registered designs/design patents.
Now that decoration has fallen out of favour for technical products, it is very hard indeed to create protected features.
...Where is my ancient Roman/Greek/Babylonian/Hebrew/Chinese tablet icon?...
It was banned under prior art rules. Here is a Sumerian tablet from over 2000 BC, listing herders and cows in the goddess Inana’s fields....
The overall design is a brazen Samsung knockoff, hard to conclude otherwise. The question is if it's so brazen it's infringing. There are no separate features so distinctive they deserve protection on an iPhone, only the combination. Yet the case Apple brought focussed overly on detail, instead of how the list of details adds up to 'passing off'. And they convinced a judge&jury to go along with them.
You can protect a collection of unprotectable parts if as a collection it's distinctive. Apple tried to scare off all competition by focussing almost exclusively on detail, both in court and LOUDLY in PR. They can't complain if the case then falls apart as the individual claims fall.
It's not a million miles away from;
https://en.wikipedia.org/wiki/LifeDrive
How much do you have to change the design before you can claim to be revolutionary and unique? The first iPhones sure had a lot more polish perhaps than other phones, but they were still the same basic shape as we'd seen before in other devices. So they put a bit more glass on, so they put a bit more glass on, remove some buttons, claim to be unique. Samsung comes along, adds glass, leaves the extra buttons on, gets sued for 1.2 Billion. If the design was truly that obvious, why was Apple photoshopping the Samsung devices to make them look more alike? Surely wouldn't have been needed if it was that obvious.
Meh.
Lawyers making jobs for lawyers.
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This fight looks like lasting long enough to keep all the lawyers involved happily on the gravy train for at least as many generations as it took Lunkwill and Fook to become Loonquawl and Phouchg, with billable hours exceeding the age of the Universe, by the application of legal mathematics (that highly specialised subdiscipline of irrational & imaginary numbers).
If that was all the design patent said then you'd have a point. I had an XDA myself, but it looked nothing like the iPhone. The point of a design patent is to prevent your competitors from selling items that look near identical to your own (trade dress here in the UK). Prior to the iPhone Samsung phones looked nothing like it. Suddenly after the iPhone was released they looked very similar. Over time they've become more distinct, but it was a hurried job with a photocopier for the early devices.
"Suddenly after the iPhone was released they looked very similar. "
True, but do you not think this is more down to technology advances rather than every manufacturer wanting to make an iphone clone?
The iphone was created at a time when touch screens had evolved enough to do the job well, without requiring a stylus, and eliminating the need for a physical keypad. This meant that the rounded-corner, rectangular screen was the obvious evolutional shape.
I'd like to know how Apple supporters imagine the shape/layout of other branded phones would be if they hadn't "copied" the iphone.
I used to have a P900, which came out many years before the iphone. Take off the keyboard, and it looks like an iphone apart from it being fatter and having a smaller screen (all things it had to be due to technology limitations at the time).
There were other touch screen smart phones of the same era that managed to look far less like the iPhone. It wasn't like you couldn't build a smart phone without infringing on the Apple design, but Samsung seemed in particular to be keen to get as close as they could without actually putting an Apple logo on them. The design patent isn't just rounded corners, it's proportions, angles, bezel widths etc. your P900 wouldn't have fallen foul of the Apple Design Patent if it had come after it.
To anyone who thinks Samsung was ripping off Apple.... check out the Samsung F700 music player shown at Cebit 2006, long before the iPhone.
Now, it's fairly obvious Samsung adopted the shape for later phones because of the popularity of the iPhone, but that's not a crime, and the iPhone doesn't deserve design protection, as it was clearly "inspired by" the F700 (and about a billion other things too) .
So what you're saying is within weeks of announcing the iphone, samsung managed to change the entire design of the F700 music player to look like the iphone? Or was it more like this is the direction technology was heading and they came up with similar looking items at similar times. Essentially all smart phones/tablets these days are is screens with a few buttons after all.
Regardless, there's no way Samsung copied the iPhone and built a functional prototype in a month. If you legitimately think that's the case, well, people believe all sorts of strange things. Admittedly, it's likely they were privy to an earlier design of the iPhone, given it's probably 50% Samsung components.
The sliding keyboard is utterly irrelevant to the screen-on shape of the phone, which is what Apple is concerned with. It's also ridiculous, because, 1) a rounded rectangle is not a sufficient design for protection* 2) no one is going to mistake a Samsung device, with Samsung spelled out across it's face ffs, as an iPhone.
* If it is, then I'm trademarking a rectangular enclosure for PC components, otherwise known as a case. Every manufacturer is infringing on that. It's also patently ridiculous.
Well this had me dipping into the black hole of now defunct devices stored under my desk.... Sony Clie *2 (NX70 & TH55) and Psion *2 (Revo & Series 5). They, like most gadgets, have rounded edges. The fruit company must be desperate if the patent is about the special shape of the curves.
Bah. For both form and function I direct your attention to the HTC Mogul PPC-6800:
http://www.cnet.com/products/htc-mogul-ppc-6800-sprint/
Reviewed in 2007, it predates the Apple patent by more than 5 years:
http://www.freepatentsonline.com/D672769.html
And that's just prior art based on devices that I've owned and can find info on. The rounded corners, the full sized screen. The only change was in the single button on the front, and the removal of the slide away keyboard.
Geeks and Geekesses,... I give you the HP/Compaq TC1000/1100 launched in 2002. Somewhat pre-dates all modern devices by a fair margin. https://en.wikipedia.org/wiki/HP_Compaq_TC1100
Also, similar shaped tablets can be seen in 2001 A Space Odyssey released in 1969.
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