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Apple’s litigation victory where an American Court has ordered Korean electronics giant Samsung to pay Apple US $1 billion in damages for patent infringement, may be a wake up call to any company that intends to innovate and compete in the high stakes technology arena.



The way the American Patent Office issues patents, could have the potential to stifle innovation and technological development for years to come. This case is more about what constitutes original design or improvement on an existing design. The litigation brought by Apple has seen major corporations armour up, by buying thousands of patents from defunct corporations. Google acquired 24,500 patents when it acquired Motorola Mobility, in a move to protect and defend its Android operating system (OS).


In the past, patent disputes were often settled out of court by means of licensing agreements between corporations, since a counterclaim is almost always included in any litigation, and a split decision could make matters worse for the claimant. However, what we are seeing unfold in courtrooms across the world today is the battle of the technology giants, and the prize is dominance in the multi billion dollar smartphone market.   


The U.S. patent law ornamental classification is intended to protect those inventions which are seen as an improvement on a previous design. For example, a new pair of running shoes may have a patent which covers a red and blue stripe in a pattern down one side, which makes it unique from a marketing point of view. This is the spirit of the ornamental patent status. If you take a look at some of the infringed Apple patents which have been granted for ornamental purposes, you will see the Apple patent D558756 from 2008, is for an electronic device, basically it is the shape of the iPhone.


Its description is so vague that virtually every subsequent electronic device, music player, toy, garage door opener, infringes it. Potentially, Apple could take to task anybody who fits some electronics into a rectangle shape with rounded corners. The online patent library is full of cases, boxes, sleeves, with such vague descriptions that if enforced, could guarantee that nothing new would ever be sold in the United States again. And, if it did, would boost the cost into the stratosphere as all the claimants for patent infringement queued up to take their percentage stake of the item in question.


This is my favorite U.S. patent. The display on a smartphone, a television or the screen in the cinema performs basically the same operation, displays images. Unless I am mistaken the home screen patent from Apple D604305 should fall under the copyright act as would any other copyright infringed image. It seems strange and wonderful indeed that a group of icons could constitute a design patent. The Android OS is not fixed in this regard. It allows the vendor to create a ‘skin’ consisting of widgets and application icons, which can be designed, moved, customised in anyway the vendor deems appropriate. Did Samsung create a display ‘skin’ to look like Apple products, most definitely, is it a design violation, I don’t believe so, since anything on a display can be changed. It should be treated as copyright infringement or even a trademark at a stretch, but allowing the home screen to be treated as a design is incredible, yet this is one of the infringements which was awarded to Apple.


Tap to zoom, pinch to zoom and bounce back are some of the nuances which Samsung was found guilty of violating. The patent coverage of these nuances is so broad nearly every touch screen device in the market would violate one or more of the nuances covered by the Apple patents. When compared to patent applications of the 1970s or earlier there was a burden on the invention to cover specific details such as a circuit diagram and precise detail. Today, it seems sufficient enough to furnish a description and a collection of flow charts to secure a wide ranging broad spectrum patent on what constitutes user input.


Following the court ruling media clamoured aboard the bandwagon which prophesied the imminent collapse and demise of both Samsung and the Android OS. However, the latest generation smartphone from Samsung the Galaxy SIII and it’s tablets are unaffected by the decision, and at worse, remaining stocks of the affected devices could be pulled from the shelves in America. For Samsung the entire debacle is more of a nuisance than anything else, since further down the line it will have to increase the costs of it products slightly to absorb the costs associated with the litigation.

It is a complicated relationship the Korean vendor has with Apple. Significant components are manufactured by Samsung’s semiconductor division for Apple and although the judgement is unlikely to affect the sourcing of components, it will put a strain on the partnership. The real problem is that backroom litigation will already be underway for the current generation of devices, and in the long term, this is not healthy for the industry as a whole. A trend has started where every new device launched will be challenged by existing patents, creating competition amongst vendors where the loser will be the consumer. I fear that unless some decorum of sensibility returns to the proceedings, either improving the quality and conditions of patent applications, redefining the the definitions or laws protecting intellectual property, the tide of litigation will not change.

By Craig Sutherland

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