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.
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!
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.
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.
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.
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.
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.
"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.
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.
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!
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.