An interesting piece from Fortune magazine came across our desks at Trig® this morning, outlining the ongoing battle between Apple and Samsung in the tablet computer market. There’s nothing much at stake here, if you think hundreds of millions in revenue and billions in market valuation are small considerations. The Silicon Valley giant’s standoff with the Korean colossus reminds us yet again of the importance of the patent drafting work we do under the Trig PDQ banner.
As Roger Parloff’s story relates, Apple is the undisputed leader of the “Silicon Valley industrial design renaissance,” and until just this past year, easily outpaced its competitors in filing design patents in the world of consumer electronics and computing. At issue here, in the ongoing court case, is Apple’s claim that Samsung has infringed on its Ipad design with its Galaxy tablet series and Infuse smart phone family.
In full disclosure, we are neither Apple-heads nor Samsung geeks—we use tablets from multiple brands at Trig®, and we appreciate the balance of form and function that have been brought to the power users among us.
The way that judges have to decide infringement suits rests on precedent that is especially old—the Supreme Court hasn’t heard a design patent case since 1871. According to the intellectual property attorney quoted in the piece, judges are left in the particularly bad situation of having a very subjective tests when looking at what Parloff describes as our “minimalist masterpieces”—does the overall impression of the “accused” product appear “substantially the same” in the eyes of an “ordinary observer.” This murky framework sounds more than familiar, as it reminds us of Justice Potter Stewart’s claim, while evaluating an obscenity case: “I know it when I see it.”
While Parloff opines on the simplicity of patent drawings—“like the proverbial Jackson Pollock painting, your kid could have drawn these”—the world of patents certainly isn’t child’s play. As with Pollock’s paintings, design patents represent the elegant simplicity of years of development work and monetary resources.
The piece is informative and provocative, in that Parloff correctly defines the underlying question in a world where Apple certainly wasn’t the first company to conceive of and even manufacture tablets, much less file for patents on these devices: is it fair for fast-follower companies like Samsung to “rip off” key design elements—those that rely on form, not function?
We happen to think that the courts, while at first glance seem to vacillate on the subject at hand, have the common sense-driven intelligence to know the difference between a design patent filed for a bicycle versus one that folds in the middle of the frame to reflect the visual brand language of the manufacturing company. So, too, will the courts ultimately be able to differentiate between elements like casings and touch screens versus icons that define a user experience.