As Apple and Samsung square off in a San Jose courtroom, policymakers, technology companies and consumers eagerly await the court’s decision. The outcome will be extremely important, but not because it pits two of the world’s most successful technology companies against each other; not even because the two leaders in smartphone and tablet sales are going after each other.
The trial is significant because it tests the ability of U.S. patent and design laws to keep pace with the fast-changing technology industry and to ultimately benefit consumers. This case will decide whether companies can use patent law and design protection as a shield to insulate their market share -- or if some elements of design are so intrinsic to innovation that they are fundamentally un-patentable – like rounded rectangles.
In its lawsuit, Apple accuses Samsung of “copying” Apple’s products. Samsung’s lawyers will likely make a distinction between copying and benchmarking, pointing out that Apple, too, has benchmarked Samsung’s products and those of other leading manufacturers who have preceded them in the telecommunications market. And that shouldn’t surprise anyone. Technology companies routinely look at one another’s new releases, not to steal, but in order to learn. Just as the automobile industry has evolved by studying what features are most successful, the technology community as a whole creates innovations that build off of what has come before in order to improve what comes next.
Mobile phone makers have constantly pursued smaller, pocket- and purse-compatible devices. Regardless of manufacturer, the similarities in smartphones are striking because the form and function is so well defined by consumer needs. Products have gravitated naturally toward slimmer, lighter devices, with rectangular bodies, no sharp edges, larger screens, and touch technology. This is what Apple claims to own, but unlike utility patents, Apple’s design rights aren’t intended to provide government-granted exclusivity on the functional aspects of a product. Design rights protect ornamentation, not functionality. This is why Apple is in the perverse position of arguing that design elements which make good smartphones so useful are not functional at all, and merely decorative ornamentation: if it admitted these features were actually useful, it would forfeit its design protection.
More broadly, the fact that any company can demand protection for the basic shape of a device, years before it had invented the actual device or technology, should not entitle that company to claim that it had patented the design for a smartphone any more than Richard Branson can patent business class travel in outer space.
For comparison, two tire manufacturers might dispute whether their tread patterns infringe one another, but neither would claim to own the shape of the wheel. In the same way, it should not be possible to patent the shape of a handheld smartphone designed to fit comfortably into a pocket or purse, or one that offers touch screen usability.
There is a clear difference between companies gravitating towards basic features that reflect function and consumer demand, and intentionally infringing on a unique patented invention. Apple asserting that it owns exclusive rights to those generic design features runs counter to what patents and patent law were intended to do. Claiming infringement based on the shape of the corners is to literally judge a book – or, in this case, a smartphone – by its cover. Instead, what makes a smartphone unique is much more, including how it works and what it does. There must be a distinction made between Apple’s attempts to enforce patents on design features that are un-patentable, and the sophisticated technology patents that are at the heart of how these devices and technologies work.
Patent law gives inventors the exclusive rights to use or license their inventions, for a fixed period of time, to encourage disclosure and allow them to benefit from and recoup the cost of their invention. It is not intended to give one competitor a monopoly on an entire industry.
In recent weeks, a number of commentators and legal scholars have recognized that U.S. patent law needs additional reform. This trial, under the guidance of a judge with significant knowledge and experience in patent law, provides an excellent opportunity to jump-start this process. More than any single device, patent, or patent-holder, what is on trial in San Jose is a system that confers ownership upon ideas that should be un-ownable, grants remedies not aligned with injuries, and establishes no meaningful guidelines for how manufacturers should behave. Innovators and consumers alike deserve better.
