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farhanbutts
SiliconAsia
Sounds like this only applied to USA. Apple lost to Samsung in Japan and Korea. ...
7 reasons to file design patents, trade dresses
Rick Merritt
8/28/2012 6:36 PM EDT
SAN JOSE, Calif. – The Apple vs. Samsung case sent out two calls to action big as billboards along San Jose’s Highway 101: File more design patents. Register more trade dresses.
These are the relatively new and still under-used parts of the U.S. Patent System. I’ll tell you why they are well worth more attention.
1. They are relatively easy to file. Design patents don’t have long, complex claims. Just a few drawings. Fewer experts and lawyers to wait for and pay.
2. They are broad. A design patent, for example, covers “an overall impression” of the look and feel of a product, according to many experts in the Apple vs. Samsung case. That’s very subjective and thus broad and subject to how well your lawyers and experts can argue in court.
3. It’s easy to understand by a jury of your peers. Anybody can understand what an iPhone or iPad looks like and that the look is kinda distinctive. Not everybody can stay awake when someone argues for a utility patent on the alternate e-bit in the 3G cellular standard—something about which the Samsung’s attorneys had to educate the jury. They won no infringement money for their expensive efforts.
4. They make money. A significant fraction of Apple’s $1.05 billion damages award was for design patents and trade dresses. These things pay.
5. They protect IP you didn’t know you even had. Apple showed its iPhone boxes and packaging as part of its trade dress. Who would have thought these little out-of-the-box-experience details could be intellectual property you could monetize? Go figure, and sharpen your pencil.
6. Everybody else will do it. This is a big lesson from the Apple vs. Samsung case. Other people will get it, if not today someday soon. Don’t be left out of the next big IP race.
7. There’s a protracted sluggish recovery going on. Too many people have time on their hands and are hungry for new opportunities. File a design patent. Register a trade dress.
Go ahead, scoff. Tell me how stupid it is to have a patent on a black rectangle with rounded corners.
While you are busy laughing, I am busy filing a design patent.
See you in court!
These are the relatively new and still under-used parts of the U.S. Patent System. I’ll tell you why they are well worth more attention.
1. They are relatively easy to file. Design patents don’t have long, complex claims. Just a few drawings. Fewer experts and lawyers to wait for and pay.
2. They are broad. A design patent, for example, covers “an overall impression” of the look and feel of a product, according to many experts in the Apple vs. Samsung case. That’s very subjective and thus broad and subject to how well your lawyers and experts can argue in court.
3. It’s easy to understand by a jury of your peers. Anybody can understand what an iPhone or iPad looks like and that the look is kinda distinctive. Not everybody can stay awake when someone argues for a utility patent on the alternate e-bit in the 3G cellular standard—something about which the Samsung’s attorneys had to educate the jury. They won no infringement money for their expensive efforts.
4. They make money. A significant fraction of Apple’s $1.05 billion damages award was for design patents and trade dresses. These things pay.
5. They protect IP you didn’t know you even had. Apple showed its iPhone boxes and packaging as part of its trade dress. Who would have thought these little out-of-the-box-experience details could be intellectual property you could monetize? Go figure, and sharpen your pencil.
6. Everybody else will do it. This is a big lesson from the Apple vs. Samsung case. Other people will get it, if not today someday soon. Don’t be left out of the next big IP race.
7. There’s a protracted sluggish recovery going on. Too many people have time on their hands and are hungry for new opportunities. File a design patent. Register a trade dress.
Go ahead, scoff. Tell me how stupid it is to have a patent on a black rectangle with rounded corners.
While you are busy laughing, I am busy filing a design patent.
See you in court!
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Robotics Developer
8/28/2012 7:01 PM EDT
I have to agree with the thrust of the article even though it sort of makes me crazy. The lesson learned from the Apple vs Samsung case is just: that if it looks at all different or better than you should file just to protect yourself. While the concept of patenting a rounded black rectangle is crazy, it pays off (at least this time). Again until/unless the law is changed there is a lot of incentive to when in doubt file (or just file anyway). Seems to be a great way to keep the patent office in business but I am not so sure about innovation being advanced by this approach.
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elPresidente
9/5/2012 5:50 AM EDT
"As for the design patents, it's a mistake to think that Apple won a patent for "rounded corners." What they showed wasn't a single infringement, but that Samsung had slavishly copied the physical design, icon design, home page design, and packaging design of the iPhone — and then left behind an email trail showing what they'd done. That's why Samsung lost, not because their phones have rounded corners."
http://www.motherjones.com/kevin-drum/2012/08/final-apple-vs-samsung-post-theres-no-patent-pinch-zoom
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rick.merritt
8/28/2012 7:11 PM EDT
Hey it's all about the user experience these days, right?
How it feels in your hand, and etc.
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fmotta
8/28/2012 7:26 PM EDT
Well, this looks like a pro-litigation and against progress message.
Use the patent system rather than the church to bring on the new dark ages.
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Bert22306
8/28/2012 7:54 PM EDT
On the contrary, something has to be done to end this foolishness. Because if we don't, any one of us can look forward for being sued for the most ridiculous reasons, even for reasons we never would have imagined.
Netgear makes a rectangular black box, and Linksys is now going to sue?
To me, this message is similar to the President encouraging immigrants to make use of the food stamp program. You're encouraging bad behavior, and you're exploiting the worst aspects of human behavior, i.e. basic greed, to do so.
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rwik78
8/28/2012 8:46 PM EDT
Sooner the better....
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elPresidente
9/5/2012 5:49 AM EDT
"As for the design patents, it's a mistake to think that Apple won a patent for "rounded corners." What they showed wasn't a single infringement, but that Samsung had slavishly copied the physical design, icon design, home page design, and packaging design of the iPhone — and then left behind an email trail showing what they'd done. That's why Samsung lost, not because their phones have rounded corners."
If you don't feel foolish for spewing your rubbish opinion on US patent laws, you should after reading this.
http://www.motherjones.com/kevin-drum/2012/08/final-apple-vs-samsung-post-theres-no-patent-pinch-zoom
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Frank Eory
8/28/2012 8:05 PM EDT
Great points Rick. While many may feel that the USPTO should not allow design patents, or that trade dress should not be protected, the law is what it is and I agree that it's foolish to ignore it.
But I'm an IC designer, so there isn't much for me to think about in the realms of trade dress or look and feel! But for my customer's end product, that's a very different story.
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fmotta
8/28/2012 8:26 PM EDT
I think I will patent combining two or more elements which result in communication or conveyance of a useful commodity beyond the boundaries of the originator.
So, pipes and hoses, and connectors, and pins, and switches, and data busses, and ... and... will all require a license from me.
If you have lungs and arteries then Pay up!!!
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rick.merritt
8/28/2012 11:24 PM EDT
Yes, this is a message for the OEM, the system designer...not for the semiconductor industry.
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dthayden
8/30/2012 10:12 AM EDT
Why not? There was (is?) a craze to expose the inside of PC's, showing off a geeks impressive hardware. Component manufacturers may want to get in on this too. Who will come out, and patent, the first non-black plastic IC package?
Actually, some light sensors are packaged in translucent plastic packages. In that case, the package involves much more innovation than anything Apple has done with rounded thin form factors.
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rwik78
8/28/2012 8:46 PM EDT
Can I be sued for using my right hand to eat? Oh well, maybe the way i hold my knife? How about the way i comb my hair?
I support design patent, but these cannot be broad. They can protect against a direct copy, no more.
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fmotta
8/28/2012 8:53 PM EDT
@rwik78: The problem is the profit that can be made by legal action and the obstruction that can be created when disallowing use/licensing.
Reduce the terms/condition/duration of exclusivity and eliminate obstructive use of patents and I support it too.
Currently the patent system is preventing progress. Fix the above problems and it might have a real value to society and maybe even support progress.
Of course reducing the number of patent-based legal actions will also benefit everyone by freeing those resources for constructive purposes.
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rwik78
8/28/2012 9:59 PM EDT
In this specific case, there was prior art for at least the rectangular design. It was not subjective like the efidence on scrolling, physical evidence was produced, which the jury chose to ignore. Laws and systems can help if we humans show some common sense to begin with.
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elPresidente
9/5/2012 5:42 AM EDT
You go ahead and do that for your ideas in your country, and tell that to your parliament or village elders, honey. We won't complain.
Meanwhile, US patent laws are what they are if you want to do business in the USA.
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dylan.mcgrath
8/28/2012 8:50 PM EDT
I think that most of us are in agreement that this patent the obvious stuff has got to stop. But I would agree with Rick: under the rules of the game as they exist now, the smart thing to do is patent as much as you can. The sad thing is that this system favors the big companies like Apple with teams of lawyers over of small companies and individual inventors.
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DrQuine
8/28/2012 10:39 PM EDT
Design patents are not only cheap but they also issue quickly so you have the protection in place before you're too far into the product launch. Perhaps a simple standard to apply would be if a photograph of your distinctive device with your competitor's name on it would make you see red, it is time to consider filing a design patent.
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Stanley_
8/28/2012 11:10 PM EDT
LG prada phone, first released in 2006..
http://www.youtube.com/watch?v=VHVzpHDgtgY
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rick.merritt
8/28/2012 11:26 PM EDT
The LG Prada was more or less dismissed in court as prior art on the iPhone design patent because it was not sold or marketed in the US before the iPhone was announced in Jan. 2007.
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fmotta
8/29/2012 12:31 AM EDT
@rick.merritt: That is a lame reason to dismiss an item. If one applies this in another country, say... China then we (USA) would whine to the wind and be dismissed as usual when China laughs and ignores us.
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andyzg
8/29/2012 4:35 AM EDT
hmmm. this whole case increasingly becomes a demonstration of how the U.S. legal system works. one would believe there are minimal standards, but seemingly there aren't.
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Bert22306
8/29/2012 4:03 PM EDT
"The LG Prada was more or less dismissed in court as prior art on the iPhone design patent because it was not sold or marketed in the US before the iPhone was announced in Jan. 2007."
The judge dismissed? The jury dismissed? This should have been unacceptable. Couldn't the jury refuse to dismiss on these grounds?
we come across as such hypocrites.
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Michael.Shannahan
8/30/2012 6:42 AM EDT
Foreign prior art is currently not considered for domestic patents. However the inventor does still need to certify they conceived of the invention, to their knowledge. It is very difficult to locate all similar inventions globally, even with the current method of searching internet snapshot archives (a database of snapshots of nearly everything on the internet for a given date). The America Invents Act changes this by putting foreign prior art into play, and prioritizes prior art challenges in the new process of post-grant reviews coming into effect this September.
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WSS-T
8/29/2012 10:55 AM EDT
The general public do not have adequate legal knowledge, especially on the complicated patent law, to really make a sound decision on such high profile case. A company with a troop of aggressive attorneys can normally push around and get what they want. This is not possible for most of the small companies. This is the reality.
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Luis Sanchez
8/29/2012 11:25 AM EDT
This patents topic is giving a lot to talk about! I get some laughs just by reading the comments. Getting a patent that gives me rights over the human body arteries? ha ha :-).
It has been said that the way the USPO is working at this moment will hinder innovation. But, is that so? I think we can see it the other way around. If too many things are patentable, this would enforce companies to know their competitors and find ways to avoid infringing their patents coming out with the own designs and ensuring they are different. This just like a read in another article, the jury foreman said he did benchmarking by reverse engineering the competition’s products (hard-drives), and after they knew how it worked, they would come out with another way to do the same for their products. This is innovation! When the going gets tough, the tough get going!
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dthayden
8/30/2012 10:19 AM EDT
Before you laugh, companies are patenting DNA sequences now. The ability to patent something naturally occuring, based on identifying it, exposes the absurdity of our patent process.
http://triplehelixblog.com/2011/12/gene-patents-sequencing-scientific-controversy/
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titux
9/3/2012 4:54 AM EDT
"enforce companies to know their competitors": this is a full time job, i.e. it requires a lot of effort, that may not be affordable by small companies like Start-Ups. Also, you will not be able to track patents requests that have not completed their process, but whose claims are already valid. In this sense, I agree that this is going to hinder innovation.
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one_armed_bandit
9/3/2012 3:09 PM EDT
you are actually at a higher risk for lawsuit if you research patents instead of ignoring them. because you now have knowledge that you might be infringing one.
just one of the twisted ways the patent system is now broken.
the original, constitutional, purpose of patents was to publish the idea, in addition to some economic advantage to the inventor. we have publishing stuff down pat, in many other ways than a patent, and much clearer ... read some patents sometime for light bedtime reading.
a basic problem, esp in sw patents, is "obviousness". the PTO cannot hire folks at a fast enough rate to know what is obvious or prior art in sw.
the US govt had to step into the auto and airplane fields and yank patents before there could be standardization in those fields. not sure they are going to do it in the sw field, where nothing is physical.
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Batman
8/29/2012 12:12 PM EDT
Uhmmm, does it mean that if Apple patents a black rectangle with round corners their competitor should make square or triangular screen smartphones to ensure they are different? Who cares about common sense, ergonomic and usability, bring in diversity!! :-)
Now I understand why Motorola designed the Razr and Razr MAXX the way they did... Smart move.
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Work to Ride comma Ride to Work
8/30/2012 11:09 AM EDT
I have to believe some of these patents laws are going to appear before the Supreme Court in the coming years. This case illustrates that our current patent laws are broke. As the industry devolves into IP chess games, eventually the Congress may realize they need to tackle this one.
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Frank Eory
8/31/2012 4:09 PM EDT
The absurdity of some of the comments about this case is further evidence that many engineers do not understand the concept of a design patent.
Consider a hypothetical unrelated to smartphones. The Chevrolet division of GM has for many years made a rather distinctive looking sports car called the Corvette. Whether GM has design patents on it I don't know, but let's assume they do.
The car has distinctive body curves and styling and other features that make it instantly recognizable as a Corvette, such that it would never be confused with any other car.
Now suppose an Asian car maker creates a very close copy of the Corvette. They do their best to match the "look and feel" of the body styling, they give it a powerful engine and so on. There are differences, sure, but to the casual observer it looks, sounds and drives like a Corvette. Is that infringement?
Some of you I guess would say no, because GM didn't invent curves, and they didn't invent the gasoline-powered internal combustion engine, or rubber tires or the particular shade of yellow paint known as "Corvette yellow" (actually, they might truly have invented that one).
You can argue that combining prior inventions in such a way to create something new and distinctive with a unique look and feel is not an invention and should not be patentable. But the law says otherwise.
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Frank Eory
8/31/2012 4:43 PM EDT
Ok, now this is ironic. I decided to check out my own hypothetical and in about 30 seconds I found a Motortrend article from 2010 about GM suing Mongoose Motors, a company that made unlicensed Corvette replicas.
http://wot.motortrend.com/gm-sues-mongoose-motors-over-unlicensed-corvette-gs-gtp-replicas-7362.html
The Corvette forum that lead me to this article had a long discussion thread about car makers enforcing their design patents, trade dress and copyrights against "kit" car makers. Some kit car makers are able to negotiate a license deal with the OEM, but those who think they can fly under the radar usually get an unpleasant encounter with a law firm.
One user claims that Ferrari in particular has vigorously defended its design patents for over 20 years, shutting down every company that ever tried to sell Ferrari replica car kits.
Now let's review. Ferrari didn't invent the engine, the transmission, or glass windows, or leather seats, or that shade of red paint, or steel, or aerodynamic body styling. But it DID invent the Ferrari Testarossa, and if you try to copy it it without permission, you will be sued and you will probably lose -- and rightly so!
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Bert22306
8/31/2012 8:04 PM EDT
It's not that clear cut by any means, though. Mainly addressing "trade dress" here.
First of all, Samsung has always bragged about their larger screen. And it looks like there was prior art (LG) on other aspects that Apple was claiming were their own invention. So the fact that some jurors couldn't tell the Galaxy, whose entire surface is display, from the iPhone, just shows that they are like those who can't tell two otherwaise totally different silver cars apart. (I knew such a person. Confused a Sunfire with a Firebird.)
Also, take a car like the Mazda M5 Miata. It is as close as it can be to the traditional British sports cars, INCLUDING the fact that the Mazda engineers tuned the exhaust pipe to sound like MGs. They actually had two exhaust system designs, one more efficient (that the engineers worked out on their own time!) and one more deep-throated, like the MG's. Management selected the cooler sounding one.
Also, take a look at cars like the Lexus large car. It's always been a copy of Mercedes Benz sedans, perhaps from a previous generation.
My point being, more or less close copies of competitors' products are the norm, hardly the exception. Maybe identical copies aren't and shouldn't be allowed, but the Galaxy phones are hardly identical to iPhones.
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one_armed_bandit
8/31/2012 9:38 PM EDT
The lesson is to become a patent attorney. They are really the only ones in this sequence who made any money.
Sad, really.
Of course, the irony of Apple winning a suit about stealing look-and-feel almost makes it worthwhile, until one wakes up.
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David Brown
9/2/2012 8:18 AM EDT
The USA has long since lost its leadership in high-tech manufacturing. It is rapidly losing it in design and development. Now with such idiotic patent issues like this, it will not even be able to buy and use the high-tech gadgets designed and manufactured around the world. If this case result sticks, and is followed by similar cases or "trade dress" patents, companies like Samsung will simply stop selling in the USA. The rest of the world provides a much bigger market, with far more sane IP laws (in a similar case in Japan, Apple's claims with thrown out of court).
The USA will be left with whatever home-grown devices their favourite navel-gazers have produced, and whatever exorbitant prices these non-competers decide to charge, while the rest of the world gets choices and progress.
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SiliconAsia
9/5/2012 4:49 PM EDT
Sounds like this only applied to USA. Apple lost to Samsung in Japan and Korea. Their judgement sounds lots more rational than US.
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farhanbutts
6/18/2013 5:45 AM EDT
http://www.nattyshirts.com/ : Design your own custom dress shirts.
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