“Monsieur Voiture, you hopeless [redacted French slur], you still can’t prepare a proper mayonnaise! I’ll show you one last time while standing on one foot…”
[Bear with me, the connection with today's title will become apparent in a moment.]
The year is 1965, I’m midway through a series of strange jobs that I take between dropping out of college and joining HP in 1968 — my “psychosocial moratorium”, in California-speak. This one approaches normal: I’m a waiter in a Paris restaurant on rue Galande, not far from Notre-Dame.
Every day, before service starts, it’s my job to make vinaigrette, remoulade, and mayonnaise, condiments for the hors d’oeuvres (French for appetizers) I’ll wheel around on a little cart — hence the Monsieur Voiture snicker from the chef.
The vinaigrette and remoulade are no problem, but the mayonnaise is not my friend: Day after day, my concoction “splits” and the chef berates me.
So now, pushed beyond limit, he grabs a cul-de-poule (a steel bowl with a round bottom), throws in the mustard, vinegar, and a bit of oil, cracks an egg on the bowl’s edge, separates and drops the yolk into the mixture — all with one hand. I see an opportunity to ingratiate myself: Obligingly, I reach for a whisk.
“No, all I need is a fork.”
Up on one foot, as promised, he gives the mixture a single, masterful stroke — and the mayonnaise begins to emulsify, I see the first filaments. The chef sniffs and walks away. I had been trying too hard…the rest was obvious: a thin trickle of oil, whisk calmly.
Clearly, the episode left its mark, and it came back to mind when I first saw the iPad.
For thirty years, the industry had tried to create a tablet, and it had tried too hard. The devices kept clotting, one after the other. Alan Kay’s Dynabook, Go, Eo, GridPad, various Microsoft-powered Tablet PCs, even Apple’s Newton in the early nineties….they didn’t congeal, nothing took.
Then, in January 2010, Chef Jobs walks on stage with the iPad and it all becomes obvious, easy. Three decades of failures are forgotten.
This brings us to last week’s animated debate about Apple’s talent for invention in the Comments section of the “Apple Tax” Monday Note:
“…moving from stylus to touch (finger) was a change in enabling technology, not some invention by Apple – even gesture existed way back before the iPhone. Have an IPAQ on my desk as a reminder – a product ahead of the implementing technology!
Unfortunately Apple have run out of real innovation…”
In other words: “Nothing new, no innovation, the ingredients were already lying around somewhere…”. The comment drew this retort from another reader:
“iPaq as a precursor to iPad?
Are you on drugs? Right now?”
Drugged or sober, the proud iPaq owner falls into the following point: The basic ingredients are the same. Software is all zeroes and ones, after all. The quantity and order may vary, but that’s about it. Hardware is just protons, neutrons, electrons and photons buzzing around, nothing original. Apple didn’t “invent” anything, the iPad is simply their variation, their interpretation of the well-known tablet recipe.
By this myopic logic, Einstein didn’t invent the theory of relativity, Henri Poincaré had similar ideas before him, as did Hendrik Lorentz earlier still. And, come to think of it, Maxwell’s equations contain all of the basic ingredients of relativity; Einstein “merely” found a way to combine them with another set of parts, Newtonian mechanics.
Back to the kitchen: Where does talent reside? Having access to commonly available ingredients or in the subtlety, the creativity — if not the magic — of their artful combination? Why are the great chefs so richly compensated and, yes, imitated? Alain Ducasse, Alain Senderens, and Joel Robuchon might be out of our price range, but Pierre Herme’s macarons are both affordable and out of this world — try the Ispahan, or the salted caramel, or… (We’ll note that he opened his first boutique in Tokyo, where customers pay attention to details.)
In cars, Brand X (I don’t want to offend) and BMW (I don’t drive one) get their steel, aluminum, plastics, rubber, and electronics from similar — and often the same — suppliers. But their respective chefs coax the ingredients differently, with markedly different aesthetic and financial outcomes.
Did IBM invent the PC? Did HP invent the pocket calculators or desktop computers that once put them at the top of the high tech world? Did Henry Ford invent the automobile.
So, yes, if we stick to the basic ingredients list, Apple didn’t invent anything…not the Apple ][, nor the Macintosh, not the iPod, the iPhone, or the iPad…to say nothing of Apple Stores and App Stores. We’d seen them all before, in one fashion or another.
And yet, we can’t escape a key fact: The same chef was involved in all these creations. He didn’t write the code or design the hardware, but he was there in the kitchen — the “executive chef” in trade parlance — with a unique gift for picking ingredients and whipping up unique products.
As a postscript, two links:
– Steve Wildstrom valiantly attempts to clear up the tech media’s distortions of the patents that were — and weren’t — part of the Apple-Samsung trial:
Whatever happens on appeal, I think the jury did an admirable job making sense of the case they were given. They certainly did better than much of the tech media, which have made a complete mess of the verdict.
– This August 2009 Counternotions post provides a well-reasoned perspective on the iPhone’s risks and contributions, as opposed to being a mere packaging job. (The entire Counternotions site is worth reading for its spirited dissection of fashionable “truths”.)
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Related columns:
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- The Apple Licensing Myth TweetLegends die hard. In the pre-Web days, they got printed and reprinted, told and retold and so became official, like spinach being good for you because it held the iron your red cells needed. After decades of the disgusting veggie inflicted upon young kids – I remember, a scientist went back to the bench and [...]...
- War in the Valley: Apple vs. Google TweetIt was long overdue: Eric Schmidt (Google’s CEO) finally resigned from Apple’s Board of Directors. Usually, these resignations are handled in the smoothest of ways: Thanks for the distinguished service and the like. This time, Steve Jobs issued a pointed statement: “Unfortunately, as Google enters more of Apple’s core businesses, with Android and now Chrome [...]...
- Apple: The End Is Nigh TweetThe end of iPhone/iPad One Size Fits All, that is. So far, Apple has managed to sell more than 300M iOS devices using only a single size for the iPhone and another for the iPad. I’m becoming convinced this can’t last much longer. Soon, I believe, we’ll see a range of physically distinct iPhone and [...]...
- The Apple-Intel-Samsung Ménage à Trois TweetFascinating doesn’t do justice to the spectacle, nor to the stakes. Taken in pairs, these giants exchange fluids – products and billion$ – while fiercely fighting with their other half. Each company is the World’s Number One in their domain: Intel in microprocessors, Samsung in electronics, Apple in failure to fail as ordained by the [...]...
89 Comments
[I use Apple products but..]
Imagine your Chef wants to forbid you making mayonnaise because he “invented it”(obviously not) and he registered a patent(monopoly) for that.
This is exactly what Apple is doing. I was doing mayonnaise myself(using pinch to zoom in my software and elastic simulation of dynamic objects) 10 years before them, other people more.
Completely correct, but seemingly the point is too subtle for most. I wrote something about this too yesterday. I think the key is the design epoch that is created by groundbreaking designs, in terms of the trade dress complaints.
Article: http://www.anyware.co.uk/2005/2012/09/01/copying-design-form-and-function/
I don’t necessarily think, using your analogy, that using mayonnaise is the problem here, unless you are cooking the very same souffle with it as they are. A classic example of the whole being greater than the sum of the parts. How else are they to protect their inventions using IP law today? How else are they to protect their investments in R&D when there are copycat companies like Samsung (and Google) out there so eager to cash in on those very same recipes? And shouldn’t they be allowed to protect their innovations? They certainly have the best recipes in the world.
The obvious conclusion is that chefs need to be able to patent their dishes. Clearly, there’s no way they could be successful otherwise.
Who cares if they’re making something from a centuries-old recipe? *Their specific version* is still new, and it takes time and effort to develop. A chef still needs to be able to recoup their R&D costs, and they *obviously* can’t do that without being able to patent their creations.
The chef’s R&D costs are low, you say? Of course, but so are R&D costs in tech companies. The amount of investment per patent in the pharma industry is orders of magnitude higher than it is in tech.
Of course, I’m being sarcastic. Chefs can be quite successful, and the culinary field benefits from that fact that everyone can take inspiration from everyone else without worrying about being sued. Patents aren’t needed for cuisine, and they’re not needed for pinch-to-zoom, either.
All this “how will they protect their innovation”, well if it’s the best product at the best price surely everyone will prefer it? If it’s so easy to copy it then it’s just not that original. It’s where the kitchen recipe is a great analogy, chef can either be the best preparing the classics everyone knows better than the rest in which case people want to eat at chef’s place or chef can have some secret sauce that others might eventually work out. Either way chef doesn’t need to say “you can’t make food in my town that uses mayo!”
The question is not “does Apple innovate”, they do, by combining existing tech into one unique blend. The issue is that they assert they own all the constituent parts they did not create or introduce after the fact through aggressive faux-patent trolling.
Your example of cars and BMW is telling, but you leave out the ending: dispite car manufacturers using the same materials and even producing cars that look incredibly similar, there isn’t a whirlwind of lawsuits over whose black sedan looks too much like the other guy’s. If you applied the same legal thinking to cars, you’d have one manufacturer suing another for using a round steering wheel or the configuration and shape of AC controls – a never ending litany of faux-infringment issues.
And that’s the Word
@Jose, Wikipedia dates mayo to 1756, so any patent has obviously expired.
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Patents are designed with a trade-off: by design, they give rights to a temporary monopoly, in exchange for which the author discloses to the world what’s going on, for subsequent copying.
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Such as JLG’s, whether he improves on the original or copies it slavishly.
Apple doesn’t get the credit that it should for nearly the half the other things it bought to market. Like true type fonts, QuickTime, laser printers and the list goes on and on.
It’s what you bring to the market and sell that makes you a true innovator. Many people have great ideas; but if you can’t bring to the market in a form that people want to buy; than what good is it?
You miss the point of the issue about innovation entirely. Yes, Apple are very good at the art of industrial design. They deserve success on that basis. But they are actually SUING people on the basis of patents and that is not a matter of art, it is a matter of actual invention. They didn’t invent anything and therefore have no right to sue people for copying their inventions.
A top chef doesn’t sue another chef for using the same technique!
@JLG, especially given my own hit-or-miss efforts making aïoli, I appreciate the relevance (and charm) of your analogy. Nonetheless, I think your analogy is weak because it misses what’s going on.
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This website mostly features reasoned give and take on ideas, but in so many tech sites I encounter, there is an obvious campaign to distort the truth. Go to The Verge, Ars Technica or many others and you will see a huge number of posts hyperbolically claiming that the suit is ALL ABOUT rounded rectangles and Apple’s theft of others’ ideas. A check at bing finds over 40 million hits for “apple rectangle patent.” (Curiously, the count at Google has dropped to below 300K.)
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Now while Wildstrom and CounterNotions show that understanding the actual issues is not out of the grasp of people with ordinary intelligence, the underlying logic for Apple’s accusers is way off into wingnuttery: somehow, after our country has managed to deal with patents for a couple of centuries, one charismatic man has managed to utterly hijack the globe’s IP laws, successfully asserting patents on rounded rectangles; other simple geometric shapes obviously will follow.
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Supposedly objective journalists such as Kara Swisher and Nick Wingfield have echo-chambered the most nonsensical of these claims, without a trace of irony, or any appearance of realization that they are cheapening a public debate by falsifying the actual claims that say, Apple made against Samsung. And in so doing, they are both helping their readers to be more confused about what is going on and promoted the false line issued by Google’s PR Department and Chairman and riffed on by astroturf bloggers, pushing the notion that Apple’s IP claims are utterly without merit because they illegitimately exploit the globe’s clueless IP system.
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We recently underwent a radical change in artists’ control over their music, and as a friend of a musician or two, it doesn’t look good. They pretty much rely on an honor system that seems OK for classical and maybe jazz, but likely to essentially strip almost all rights from others. The groundswell indeed eviscerated the Greedy RIAA, but it also has dramatically changed the economics for artists.
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I think many in the FOSS movement saw how that transition worked, and has taken it as their playbook. Vilify Apple so that some court of public opinion (abetted by ordinary lobbying) restricts companies with IP from asserting it against the Robin Hood good guys.
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It seems we are at a cusp in this battle: Apple is beginning to land some serious blows, and Microsoft has licensed almost every Android OEM except Motorola. But the politicization of the issue remains, and will certainly factor in whatever equilibrium is reached.
Patents hurt consumers. Especially in tech no company can innovate or license every aspect of a product. The result being that you will get to choose, from a set of devices, where each is inferior to what was possible. Re-branding of existing underlying concepts as “innovation” gives multiple companies patents on the same common sense ideas. We are headed towards a gridlock. Startups will be impossible. Only huge companies with their “war chest” of patents and the lawyers/money to use them will be able to make anything. Even those will be crippled based on the probability of patent litigation.
France24 had a discussion on Friday about Apple’s patent win.
They level of ignorance and vitriol displayed was extremely shocking.
One American reporter said that “Apple was trying to take away people already bought Samsung phones.”
If iPhone which toppled the cellphone and computer industry can’t get any patents than no industry or technology should be able to get a patent.
Several people here here conflating that Apple patented the ideas. Apple patented the implementation of an idea. There might be prior art but that only applies to the design part of it. Apple has a patent on event handling of touch devices. No one prior to iphone released a device or patent such a thing. Now Google is obviously infringing on that.
Talking points like “Choice”, “innovation”, “Competition” are code words used by Google and its ilk to distract from the issue at hand which is that Should Google be able to CLONE an iphone and get away with it which is what it is trying to do.
Actually, True Type fonts were based on Adobe’s Postscript fonts which were in turn based on Xerox’s Interpress.
@ Jeff Ratcliff: Not the case. I happen to know the TrueType fonts story first hand. In 1986, Gifford Calenda came to me with a proposal to design “mathematical” fonts. I was in charge of Apple’s Product Development at the time. We were paying Adobe a lot of money for Postscipt fonts for the LaserWriter (another Apple “non-onvention I forgot to mention) and the Mac. Economically, it was a no-brainer make vs.buy decision. Technically, it was another hairier story, but Gifford Calenda and his team (I remember Sheila Brady) came through. This didn’t endear me to Adobe, their CEO demanded my head at the time.
Because we, unlike Adobe, didn’t want to make money from fonts, we just wanted to lower our costs. As a result, we gave a free license to Microsoft, resulting in wider acceptance of the fonts and TrueType was born.
Our IP was independent from Adobe, we just had good engineers doing original work, not copying anyone, if you see what I’m getting at.
Thanks for this opportunity to praise good engineers doing good work.
Wow. Good thing Maxwell did not patent his equations, huh? The modern world would probably not exist if an injunction had been granted on relativity because some whiny spoilt brat had sued Einstein.
Slick marketing maybe, but Apple’s products are trash.
@Jose, if mayonnaise had never existed before today, and you just invented it and built a business actually implementing that product; then perhaps you should be entitled to patent on it.
@Jean-Louis Gassée. I didn’t mean to imply that True Type fonts were based on the implementation of Adobe’s or Xerox’s fonts, but rather that they were based on the same general idea and using similar mathematical ideas. Had Xerox patented Interpress and the same jury had to decide if True Type violated Interpress patents, I suspect they would have found that it did based on the same theory that they applied against Samsung. Speculation of course.
@ Renee Marie Jones: Yes. And the portions are too small.
Yes, cars are all made in the same basic shape and parts. But, there are significant differences in the shapes and parts. These are what allow you to tell from a distance whether or not you are seeing a BMW or a Chevy or a Mercedes Benz or an Aston Martin or a Ferrari or a Ford or a Toyota or Nissan or Honda.
You can tells cars from a distance. You couldn’t tell a Samsung iPhone clone from the iPhone itself from a distance. That’s wrong.
The Car Industry is characterized by manufacturers who want to DISTINGUISH their products. They want their products to be different from each other. They respect each other in this way. They have gone through their years of patent wars years ago.
If General Motors did what Samsung did and slavishly copied the look of a Ferrari B12berlinetta for its Chevy Corvette, you will easily see Ferrari SUING GM and WINNING the lawsuit. Ferrari’s designs and major car manufacturer designs ARE PATENTED. Ferrari is very protective of its designs. And car manufacturers respect each other’s patents.
Samsung and other Android manufacturers do NOT respect Apple’s design patents. Samsung is the worse in slavishly copying Apple, violating Apple’s design patents.
If Samsung was a car manufacturer, it would be heavily sued by whoever it copied. It is completely out of line for car manufacturers to slavishly copy each other like Samsun does. Even Hyundai is very original in its designs. Samsung should be ashamed of itself.
@ Adrian Quek: Ideas can’t be patented, only implementation. I was referring to the old quarrel about who actually invented relativity.
@James Katt At a distance you couldn’t tell an iPhone from an ordinary portfolio.
A portfolio for very small papers. OK, I was thinking of the iPad rather than the iPhone, but the principle is the same.
@Walt French:
Have you actually looked at the latest Apple lawsuit (against the Galaxy Nexus, Note, S3, …)? If you can look at the patents asserted there and conclude that Apple hasn’t hijacked the patent system, I don’t know what to say.
Here’s a citation for what Apple has asserted in this case: http://www.appleinsider.com/articles/12/08/31/apple_adds_samsungs_flagship_galaxy_s_iii_galaxy_note_to_amended_galaxy_nexus_complaint.html
It is very much worth noting that two of the patents are late 90s, early 2000s Mac OS-related patents, at best tangentially related to the iPhone. Does that give you any pause?
It’s also worth noting that these patents are old enough that actually digging up, authenticating and successfully demonstrating the prior art can be very difficult. To take one example, for the “data detectors” patent two relevant pieces of prior art are Netscape Navigator 2.0b1 and Borland’s Sidekick (because they did same sort of email address, URL and phone-number detection at issue here). Unfortunately, one is a Win16 program and the other is a DOS TSR. And while it isn’t impossible to get them to work today, it isn’t simple – particularly since you can expect opposing counsel to object every step of the way.
Then we can go to slide-to-unlock, about which millions of comments have already been written. On the one hand, I’ll note the Neonode N1m (where there’s a pre-iPhone, pre-filing video on YouTube demonstating slide-to-unlock). On the other, I’ll note that Apple has, at various times, claimed that their patent covers *any* unlock mechanism where the path of a finger is traced (including Android’s pattern unlock) as well as “a tap is a zero-length swipe”. I’ll just say that the breadth of coverage of this patent, especially as Apple is asserting it, is questionable, at best.
Finally, there’s the “word completion” patent. I’ll admit to have not looked at the details of this one. That being said, absent the inventions of Swype and SwiftKey (which are a very separate discussion), I can’t think of anything an Android keyboard does that isn’t a logical consequence of better processing power and better touch screens applied to the word completion I was doing on my phone in 2002. That makes me skeptical at best (though it will be a more complicated case when Nokia gets around to suing).
In any event, I can’t see this as anything other than Apple taking advantage of the broken US patent system to lob missiles at their competition. I don’t see this as one charismatic man hijacking the globe’s IP laws. I think the IP laws were hijacked long ago (Lodys, Microsoft “long filenames” patents, LZW, setuid bit, pulse-width modulation and on and on). I just see this charismatic man’s company pulling off the highest-profile abuse of the system we’ve ever seen (so far).
The chef metaphor works, but I think its a little pedestrian and kind of caters to this ignorance of how IP works. You cant have a patent system like we have without creating conflict in the courts. Thats actually the purpose of the patent system or at least its only mechanism of enforcement.
To say that Apple a company with a huge number of patents hasn’t invented anything is (patently) absurd. If people mean to say that every Apple patent escaped prior art restrictions, then you either have a complaint with the US Patent office or you should sue Apple.
And the other canard which I find childish is that Apple would prevent other companies from using pinch to zoom or whatever, when in fact Apple was offering to license to Samsung and Samsung refused. They wont let that happen again.
And if that makes your blood boil that companies would have to pay Apple to license something, remember Microsoft is getting a huge (relative to its contribution to mobile equalling zero) cut of every android phone made in the world..just by THREATENING to sue. I dont hear too many folks complaining about that either consumers or the companies that are paying Microsoft.
Thats the way the world works folks. Deal with it.
At the risk of taking the analogy here too far – Im going to say – is that your chef analogy doesnt explain why many people aren unhappy with this situation – because you arent looking at a big enough picture.
So bear with me please – but we dont have a chef – with have a King who is a chef and has an army and so he decides to make a new recipe – and its actually rather like an existing recipe
Now in the case of Samsung – there is a HIGH King -and what the Chef wants to do is to make the other kingdom pay LARGE amounts for his ingredients (and in fact be banned from growing them – them selves) but he doesnt want to pay the same amounts that he gets from that Kingdone – because he says HE cant grow them so he should get them CHEAP.
Many people think thats unfair.
Secondly – remember that this chef has had a history of noting apps etc in the appstore – they have been banned (thanks to his absolute power) – and I know of companies that have failed because of this – and then a year later – an app with the same functionality is now standard within the Chef’s own product. The fact that the Royal chef – used his army to raid their fields and put those workers out of work (and their families on the bread line) has been considered by some to be unethical) and annex their ingredients for his own cooking you seem to think is fine but many dont … SO thats the BIGGER picture of you rchef…. and its more complex than that – I know but your analogy does leave MANY important bits out ….
@bobx:
Why is my blood boiling?
First, you’re right. I have a huge beef with the US Patent Office (and well as the US Court of Appeals for the Federal Circuit), neither of whom show any understanding of the realities of developing software and both of which seem to never have seen a software patent they didn’t like. But that doesn’t get the Lodyses and the Intellectual Ventures and the Rockstars and the Apples and Microsofts and the Nokias and on and on off the hook. Just because the system is broken doesn’t mean you have to abuse it.
Second, this is my livelihood. I write software for a living. I see this madness and I feel like an idiot for not going to law school instead. And now there is even more money and even bigger players against reform than there ever were before, making slim hopes for reform even slimmer. And I know what happens next. If you think there aren’t teams at Google and Samsung (and probably plenty of other places) trying to patent anything that sticks for self-defense today, but attacking the next round of innovation tomorrow, you haven’t been paying attention.
Third, the licensing fees Apple and Microsoft want are outrageous. Add them up and they’ll soon be more than the wholesale cost of a low-end Android phone (if they aren’t already). That’s completely crazy, especially for patents that should never have been granted in the first place. Not to mention the impact those sorts of fees would have on spreading smartphones to the developing world. When I think of the opportunities that will be lost or smothered in their cradle…
And it is great that the chef can profit. What is not so cool is when the chef goes greedy and abusive and believes that for some reason, he is the only one that can cook.
Using your logic, you never wrote this article, or shouldn’t get credit for it. All the words and letters existed, most of them existed before you were mixing mayonnaise even!
I hear what you’re saying, but innovation isn’t merely creating from scratch, it’s also combining things that others haven’t thought to combine yet.
Your analogy also works against your point I think, because if you don’t create mayonnaise properly, it’s still not mayonnaise, even if you stick it in a jar and try to sell it, telling people it has the same ingredients.
Jean-Louis, please do not mix great geniuses, Einstein, Poincaré, Lorentz & Maxwell, with people looking at making more money, backed by lawyers and finance experts …
@Lawrence Neumann The tragedy if this court decision is that the mayonnaise existed before. Bounce back existed before and that prior art has been shown in court. Slide to unlock existed before and that prior art has been shown too.
It is just that jury foreman decided that they do not count, because they have been implemented on different CPU. His decision ignores both current law and the way it was applied before.
I’m not even sure whether this result is a result of a bad patent system or a horrible jury system. The more they talk, the more they build case against current jury system in general.
Half of involved Apple patents would be invalidated and the damages would be lower, if the jury would bother to follow the law and jury instructions. And there is no way to call them on that.
The person who invented mayonnaise did not claim intellectual property rights over oil, eggs, mustard, vinegar, and chickens afterward.
Sincerely,
Common Sense
Software should be treated exactly like recipes. KFC should be able to protect their 11 herbs and spices, but they shouldn’t be able to stop any one else from making fried chicken. Software patents are useless and horrible.
A lot of commenters here seem intent on confusing rather separate topics:
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1. What is innovation?
2. What deserves protection as intellectual property?
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Some things are innovative and protectable. Some things are innovative but not protectable. Some things are protectable simply for being unique (‘trade dress’). Apple has some of all three. Samsung used some of Apple’s each. It was convicted for using only the first and the third, though the case was mostly about the third. Samsung’s problem was that it copied ideas instead of stealing them – it made little attempt to make those ideas their own. It was like a soft-drink manufacturer who suddenly (and independently – they swear!) decided that it might be a good idea to put their cola drink into an hourglass-shaped bottle with a white script logo on a red background.
For all those who seem to be experts on what was copied – and what wasnt – I think its worth noting a few things… 1) Samsung was NOT allowed to present all their defence and they will likely appeal based on that alone. 2) There were 700 questions the Jury needed to answer – and their eventual answers (reportedly) conflicted with each other and their addition was incorrect. This too will give grounds for appeal.
3) The Judge is still considering the Jury’s answers and she may rule in a number of ways even BEFORE this gets to appeal.
4) To say that Apple won is premature – and its worth noting that Apple has been found to be using Samsungs patents and that those patents are not about a rectangle with rounded edges and a button which may or may not have been copied from Nokia or elsewhere but from R&D done at the cost of large sums of money by Samsung and without which Apple CANT make their phones. Apple have admitted this – and have stated they dont want to pay samsung the same amount for those NECESSARY patents as they want samsung to pay for their Look and feel copied patents… I think there is a lot to go on this before you can say that Apple has actually won. All that’s happened really is the Jury has come back AND its given answers that dont add up and which contradict themselves and then in interviews they seem to say they may not have obeyed instructions. Long way to go yet on this I think. This case isnt finished and then there will be appeal after appeal after appeal and of course – Apple is being attacked on multiple fronts by multiple companies. That too will tell in the long run
“I made a good mayonnaise once, so now nobody can. You are free to make disgusting mayonnaise if you want.”
Who would say that? No chef I know of. Because mayonnaise is not like iPad-s. Making good mayonnaise is hard even if you have the manual. Making an iPad clone is trivial if you have the plans. This is why craftsmen don’t need patents, they rely on the difficulty to acquire their skill.
Moreover Apple did not patent the iPad, they patented ridiculously small “innovations”, which for some of them weren’t since there was prior art.
I have no issue with Apple claiming the design of Samsung’s tablets is too similar to the design of the iPad, I have an issue with them 1) claiming they invented things like Pinch&Zoom or clicking on a phone number and 2) preventing other designs from using these *natural* ideas.
A slightly different analogy: we could guess that one person is related to another by their resemblance, but it would be hard to list the specific details of that resemblance. At some point, the picture just looks like a copy. At some point, a picture looks “new”. The iPhone looked “new”, although, in hindsight it seems “obvious”, and after all, it isn’t “new” like it is made out of gingerbread. It is a phone, it is a screen, it has icons, a CPU, etc. But people seem more upset about the blocking of consumer choice, than whether or not Samsung spent a lot of time staring at the iPhone (they did). Maybe I should be free to buy a car that looks just like a Ferrari, just as I am free to go to Zara and buy clothes that look just like designer stuff. Why not? Is there a myth about originality? Simplicity looks obvious in hindsight. The question about copying is, if Apple hadn’t made the iPhone, would anyone else have? And if not, what would consumers have been able to choose?
Saying, in Kirby Ferguson’s words, that “everything is a remix,” does not diminish the contributions of the remixer. We’re all remixers to some degree. Nothing is completely new. Acknowledging this forces us to acknowledge that even the greatest ideas owe a debt to the ideas upon which they are built. But this must be a two-way street. The inventor acknowledges the debt he or she owes to preceding inventors, the giants upon whose shoulders he or she stood; society acknowledges that the to-some-degree-derivative nature of all invention does not render it uninventive or unworthy of some level of protection.
The problem is that this so often degenerates into a Potter Stewart “I know it when I see it” approach, which is highly unsatisfying. I can look at the websites that show how, across the board, Samsung simply aped Apple’s design on a wide variety of products and say to myself, “That’s shameless and it shouldn’t happen.” But at the same time, many of Apple’s patents seem to me to be small improvements, unworthy of protection and certainly with the ability to retard progress in our industry. And I *can’t articulate an objective manner by which someone else could replicate my decision-making.” It’s “I know it when I see it.” And that’s simply insufficient.
JLG, your comments are to the point. If software patents exist, and someone who is in the software business wishes to protect their assets, then they MUST use them. More to the point, to enforce them, they MUST use the civil court system. (No patent police, at least not yet, thank God.) Software (the code, the implementation) is indubitably a protectable asset. The courts have held that software architecture / software design is, also.
Apple didn’t invent anything? Really? then by this logic one might say Picasso never really painted anything, after all, paint and canvases have existed for hundreds of years before Picasso.
It’s not the materials or the shape of the products that make Apple products great, it’s the way they are designed and built.
If we were to say that two products are at the same level just because the materials or even the concept has been used or proposed before then just about any given product is a copy!
Ferrari didn’t invent the concept of a car, but they did take it to its maximum expression of luxury and performance. Are they still innovators? You bet your ass they are… And so is apple!
Props to the author for an interesting article!
In fact it is ridiculous that a writer can claim copyrights to a novel. After all he did not invent the parts it is built from. We have had the letters a-Z for many years and there is plentiful of prior art on this.
@Adrian Quek wrote, “Good thing Maxwell did not patent his equations, huh?”
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And for that Good Thing, we have to thank the patent system itself, which has, AFAICT, NEVER allowed “ideas” to be patented.
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Your note merely underscores @JLG’s basic point: there is a LOT of misinformation about patents running around. There is a good and useful discussion about the role of patents in our world, but claims that “patents” limit the dissemination of ideas are just plain wrong. And to my eye, many of the complaints are so far off base that no intelligent person could actually have dreamt up that they typically occur in our fairly-rational world.
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Let’s talk about real problems, not made-up ones that some people must be intentionally conflating with the actual situation.
I wonder what Samsung’s response would be to someone branding their new phone the Sansumg Galaxy ZIII
This sea if similar sounding comments (based on lies) that are inflating the web. They must really be produced by bots right?
I’ve been searching backwards like over 10 years I cannot really find anything Apple has done that is so bad. In fact most Apple-users are a pretty happy bunch – it seems to be the non-apple-users that are emotionally disturbed by this in some way. And that produces these uncontrolled emotional outbursts.
Why cant the non-apple-users be happy with their stuff? Why are they so obsessed with Apple? And if you dont like Apple.stuff – isnt it good that Samsung copying got smacked so maybe they produce something you can appreciate instead?
@Billy wrote, “Using your logic, you never wrote this article, or shouldn’t get credit for it. All the words and letters existed, most of them existed before you…”
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And thereby you yet again prove the point: patents cover some classes of inventions; copyrights cover other things; trademarks a third and trade dress is similar to a trademark. Some things, such as ideas, are not “ownable” under any of the rights; others are ownable even if they’re not innovative or useful.
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Our society has spent a couple of centuries striking a balance between private and public interests regards intellectual property, and you show up to smash all the carefully-honed distinctions because… innovation!
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You should aim for a more coherent argument against the actual IP structure that we have, not something that’d seem confusingly inconsistent to anybody older than 12.
@Adrian your analogy about painting a Picasso is precisely backwards. Apple isn’t trying to patent their Picasso, they’re trying to retroactively patent existing elements like paint, brushes, and the use of a square canvas – they seek to ensure no competitor is ever able to paint in the style of Cubism let alone their exact Picasso rendition.
Thanks for the great analogy Adrian. Ironically, it was perfect for illustrating how completely batshit insane it is that Apple has been given a green light to troll such fundamental pieces of this market that are steeped in prior art and existing implementation.
@Pierre Chapuis wrote, “Moreover Apple did not patent the iPad, they patented ridiculously small “innovations”, which for some of them weren’t since there was prior art.”
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And lo and behold: Apple did not sue over iPad patents; they sued over (a) iPad trade dress, which the jury rejected, and (b) 3 utility patents that because they are “ridiculously small,” would be easily and trivially worked around by anybody who wasn’t just slavishly copying.
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The “prior art” claims are especially amusing to me. Since “trade dress” covers non-functional aspects of a product, the non-appearance of one slider phone has nothing to do with patents. Meanwhile, Samsung did present a table (not tablet) computer that worked completely differently from the iPad. The jury easily distinguished the superficial similarities from the core differences underlying the workings.
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Samsung can still invalidate the patents, and dodge the damages for infringement. Presumably, although Google has had 5 years now to find good prior art, even having made a well-publicized effort to collect prior art, a few extra millions of dollars should suffice to incent them. Somehow, I think not: Samsung, using one of the most aggressive and respected Tech/IP* law firms on the planet, mounted an awfully weak argument to invalidate the asserted patents.
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* I have a friend who practices law in the Valley. Technology law practice is a bit about IPOs and a LOT about intellectual property. Amazing but true fact: this is true even in sectors that Apple doesn’t operate in.
@Ravi wrote, “It is very much worth noting that two of the patents are late 90s, early 2000s Mac OS-related patents, at best tangentially related to the iPhone. Does that give you any pause?”
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Heh, I’ve been using e.g., the data detector patent on my Apple computers (Mac & iOS) for some time. I rather like the functionality that they provide. The nice integration of various functions on a machine is now a nice integration between my laptop and phone.
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That one was a clever insight when it was first implemented.
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You focus on the fact that its age makes it harder to find possible prior art, but that puts the cart before the horse. Data detectors are widely used and useful on Macs and iOS devices; Apple has made a point about asserting the patent. (Your link notes that Apple has successfully sued HTC over it, but Android continues to build it in, despite clear-cut notice that doing so infringed it.) If finding prior art is so damn hard, perhaps it is because there indeed wasn’t any; perhaps there WAS prior art but it’s all lost.
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Either way, intentional, ongoing intentional infringement of something which you may not be able to invalidate is a reckless, indefensible strategy. I may not like the arbitrary and generally kleptocratic legal system of Russia, but if I elect to do business there, my shareholders will expect me to have adequately taken the local customs into account, and not lose all their money by rushing headlong into a buzz saw.
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The suit against Samsung was emminently preventable by Samsung. Complaining about the consequences of the train wreck they caused is to ignore how THEY precipitated it, by intentional disregard for US law.
@Shadowboxer, by your account Apple found the proceedings delightful — as if they had the judge in their pocket — and Samsung constantly found itself being screwed, so has written up a laundry list of very appealable complaints.
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Of course, you are presenting a one-sided argument: Apple was NOT allowed to include some phones in its case; it was forced to remove many patents from its claims; it had other claims denied. too. Some observers have questioned whether the judge should overrule the jury (as she has full power to do) regards the jury’s confusion about unregistered trade dress. As Apple v Samsung evolves, there is no reason to expect a one-sided over-turn.
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Which brings us back to the core aspect of the case: Samsung’s infringement of legally-asserted patents and trade dress was obvious — richly documented by Samsung’s own materials and really, unquestioned despite the many claims of “it’s not fair!” that have accompanied the verdict. All the many quibbles Samsung may make do not change the fundamental facts one iota: Samsung consciously and aggressively infringed a wide range of Apple’s IP, and did so despite earlier cases against Android that should have been a signal that the case would go against them.
@Ravi: “though it will be a more complicated case when Nokia gets around to suing”
Nokia sued Apple over the iPhone long before Apple sued anyone, eventually the case was settled with Apple paying Nokia a royalty which bring in more money for Nokia than all their Windows Phones combined.
@Walt French – “by your account Apple found the proceedings delightful — as if they had the judge in their pocket and Samsung constantly found itself being screwed, so has written up a laundry list of very appealable complaints” = Don’t Recall saying that -AND dont believe that.
And might add that the reason the Judge DIDNT alllow Samsung to add all the extra material they wanted to was time (and if you remember – she took apple to task on a similar point). Nontheless – if they feel that meant critical evidence was excluded – it could well be appealed. You are definitely entitled to your opinion – but I know professors of law that do NOT think anything about this case is “Obvious” and it reminds me of a good exam – anyone coming out of a good exam who thinks they are simple or easy – has missed the real complexity thats being examined and to say say that stuff is obvious and unquestioned when you know significant amounts of evidence was not allowed to be given makes me wonder how you can have read that and determined its value ? Im also curious here – if Judge Koh does through out the Jury’s verdict and rule totally in favour of Samsung (and note Im not saying this is likely and nor do I believe it will happen – Im asking a hypothetical here) – Will you then believe that Samsung didnt copy at all ? (Remember she has seen details of evidence that wasnt presented for a start).Or have you just made up your mind on this matter ?? My points are simple 1) Apple has definitely Copied Samsungs patents and doesnt want to pay for those the same amount it wants to charge Samsung for its patents. 2) This case is not over yet and then it will regardless of who wins or loses and to what degree – will go to appeal. I have not said who is fair or not…. Although I will say now that I believe Apple “seems” not to be playing fair given it wants to charge dollars for its patents but pay cents for samsungs “necessary patents expecially given that Apple admits it CANT make a phone without Samsungs patents. However I KNOW there are nuances and complexities here that even there TOP lawyers havent got to yet… so I find it amusing you can say they copied something so clearly at this stage. Good luck to you though . Ill wait for all the evidence first I think.
What is really disturbing is the way technology companies feel entitled to copy Apple’s products in as much detail as possible. If that happened in cars, there would have been 40 years where every car on the road was a different brand of Rolls Royce Shadow, made out of every possible cheap material so the customer has choice of metal or fiberglass or cardboard, but no other choice but Rolls Royce Shadow.
And also what disturbs me is that they make something that looks exactly like the Apple product, but has much more limited functionality. Consumers don’t understand that. They are used to any DVD player plays all DVD’s — they don’t get that the apps they saw running on their friend’s iPhone will not run on another phone. In a very small minority of cases, there is a similarly-named app. There is a bait and switch with generic tech selling users the Apple experience but not delivering.
If you want to sell to consumers, you have to make consumer products, not tech products. The unique look of your device is as important as uniqueness in domain names at the technical level. There is a system in place to make sure I can’t call my new website yahoo.com and it protects my existing websites also. If I make my new website appear to be at yahoo.com that is phishing and it is fraudulent. Same with Samsung’s copycat iPhones. That is a fraud on the user.
Finally, gotta say that people who say Apple didn’t invent anything show an ignorance of history. Because of you know the story of the personal computer, you are inclined to come away thinking Apple invented everything. At the very least, Apple invented everything that was of interest to the liberal arts, as opposed to computer sciene from everyone else. And the whole way, you see Apple getting critically panned by all the other tech companies for years and then they all copy Apple.
I’m surprised by all the high levels of vocabulary in the comments, but the very low levels of reasonable logic (sorry, no offense, but it’s so simple I’m surprised seemingly intelligent people don’t understand it.)
Let’s break it down to an elementary level:
Apple: “We spent X amount of time and money designing and testing this phone. We feel it looks great, feels great, and just by the physical elements alone, will turn enough heads to move enough units. Let’s patent this design so that it remains an Apple design.”
Nokia: “That’s nice. But we think we can do better. You’re using aluminum? Well, we’re going to look into alternative materials, the kind that can have different colors. Yep. We’re going to spend X amount of time and money, but we feel that if we can get this right, people are going to consider this phone over your iPhone. May the best phone win!”
Google: “Guys, we’re building this new Mobile OS. What’s great is that it’s FULLY CUSTOMIZABLE!”
- HTC, Sony, etc.: “Whoa, customizable? Awesome! Now we don’t need to spend tons of monies on R&D in order to build a modern mobile OS. All we have to invest in is how to add our own UNIQUE flavor to it! Thanks Google!”
Samsung: “How many phones did Apple sell? WHAT?! Let’s make one like it, but cheaper! Yes, EXACTLY like it. Make the hardware look the same. Why? Because people like the way the iPhone looks! Software? Grab that free Android thing Google is throwing around, then customize it so that it looks and feels like Apple’s iOS. People want the iPhone, but they can’t afford it, so let’s give them what they want: something like it, but cheaper. Can we afford to make it cheaper? Of course we can. We didn’t invest in any R&D, and we can use cheaper materials. No one will notice if it looks the same anyway.”
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The above happened. Apple basically went “come up with your own shit, assholes” to Samsung, and sued them.
As one other commenter said: If Hyundai copied Ferrari, do you actually think Ferrari would go “oh, how nice”? No sir. They would see Hyundai like nuts, AND move to have that car taken off the road in every market it’s in. Design is a Unique Selling Point – a Competitive Advantage that businesses invest in. Having it stolen is just the same as having your logo used to sell goods you don’t make, in order to profit from all the investment you made on building your brand.
Honestly though, and I mean this in the nicest way: If you guys still don’t get it. You should just move on to another topic.
@Andrei Gonzales
“The above happened. Apple basically went “come up with your own shit, assholes” to Samsung, and sued them. ….Honestly though, and I mean this in the nicest way: If you guys still don’t get it. You should just move on to another topic.”
Im sorry – but you seem to be missing HALF the issue here. The bit you dont mention is the Apple ADMITS to copying a pile (a lot more by the way of Samsung patents. The issue is Apple CAN NOT make a phone work WITHOUT infringing Samsungs patents. They need the results of Samsungs R&D . Accordingly Apple asking the court to make Samsung charge only cents for their patents whilst allowing them to charge ANYTHING they want for theirs…. even though it was shown in court their innovation cost all of – copying from Nokia and a few designers around a table where as Samsungs Patents are the results of Externsive R&D work in electonics that cost enormous sums of money and time. So tell me how that is fair that Apple wants to be able to charge anything they want for their patents and yet doesnt want to pay a fair price to Samsung ? All the Apple Fanboys are ignoring this very significant part of the case…. Tell me why should apple get that ? Why IS IT fair that apple can copy Samsung but Samsung CANT copy Apple ? ? Why is it fair Apple can charge anything for their patents but Samsung cant ? No one is addressing that question and yet its one of the bigger questions brought up by this case. (and only one of many) If you dont address THAT then YOU dont get this case at all.
Oh and BTW – there ARE reasons (Apple thinks) for asking what they ask – regarding patents – Look up FRAND… but you cant Ignore this side of of the case and say you understand it. Apple have said they infringe Samsungs patents and have acknowledged they cant make a phone without doing that.
It amazes me at what lengths people will argue just to prove that Apple is wrong by protecting their IP. Some are the biggest hypocrites because they are fanboys of companies doing their own patent litigation… and many based on IP they bought, or FRAND related technologies that should be first on the list to be removed from the patent system.
I believe Apple is right to go after a company that clones their products. If some Korean company built a knock-off dead on BMW clone I’d hope BMW would go after them too… and don’t get me started on the blind m’fers who claim its just a square or they don’t look the same. Get real.
The arguments against Apple protecting their IP are weak at best. Blame the game, not the player… maybe your argument will carry more weight.
Until then, nobody can excuse Samsung for being the biggest copy-cat of them all. They did it to Sony for years, at least Apple has the ballz to stand up and set them straight.
@JD The point of Patents is to allow companies to Protect the investment they made and to enable innovation. Companies put patented technologies into Standards and FRAND Licensing because they EXPECT to be reimbursed for their development costs and they believe the industry overall AND they will benefit. If you remove patent protection – they will not get their licence fees and not recoup their development costs. This will remove one great motivation for doing it in the first place. Remember.. Everyone has played by the rules (even MS) until Apple who refused. So for some reason you think its fair for Apple’s patents to get protection – even though their development cost for those were shown to be a group of people sitting around a table (according to apple in this trial anyway ) and yet its not fair for Samsung to be paid for their development costs for THEIR patents – even though their R&D costs were many orders of magnitude higher. Why and how is that fair ? what makes apple so special ? Why is it that just because Samsung have said that if companies play fair with them they will play fair back – that you think they dont deserve patent protection for all that R&D ?? Why ARE their patents different ? Because they are trying to play fair ? because they cost them millions to develop ? rather than a few people sitting around a table ? or because they are not apple ? – I think think it IS an interesting legal question and one that IS as important as the one about Samsung copying Apple.
@Shadowboxer
Samsung took the iPhone and iPad and simply slapped their own logo on them.
That’s very different from Apple utilizing some basic nuts-and-bolts technology that’s covered by Samsung-held FRAND patents.
@Nobody – you mean Samsung took Apples Casing – that Apple aid took them Very little in money to develop – and put their OWN electronics inside (A lot of the same electronics BTW that APPLE use and some they Admit to using without a licence)
Where as apple developed a few gestures and the casing – and copied all the electronics and all the BITS that actually MAKE it work – and you think thats different . I agree – they are – but I kinda think that the technology that is REQUIRED to make the phone work is fairly important and i find it amazing people can dismiss it so easily. If it was a life support system would you dismiss the bits inside as irrelevant. What about the turbines in a jet engine – do you care if they are counterfeit and dangerous – or does it matter if they are made correctly – I would like to suggest that THE BITS INSIDE actually do matter just as much as the bits outside so if you think otherwise thats fine – BUT NO ONE HERE is giving a justification for that view….. they just say… because… WHY is apple so special .. why is stuff they developed (that they say cost them so little to develop) less important than stuff they say THEY cant build a phone without but which cost Samsung a fortune to R&D. Shouldnt they be treated of equal importance ? If you life was on the line wouldnt you want them to be ?
@Shadowboxer:
You are arguing a different case altogether.
If Apple infringed on Samsung’s patents, then that’s a different case than Samsung infringing on Apple’s. Samsung has every right to sue and put their case forward.
The bottom line is that in the case that we are discussing (Apple v Samsung re: patents that cover Apple’s unique selling points), Samsung was found to have deliberately copied Apple. It was clear from the product they produced, and it was clear from the documents that were presented.
Again, to flip the situation:
Say we have Hyundai vs BMW. BMW filed a case vs Hyundai for copying their design for their Z4. Let’s say BMW won.
Now we have Hyundai saying they developed a valve-technology that they found BMW was using in the Z4. That is a different case from the Z4 design case.
Again, very simple.
@JD – Im not arguing the Case – This is the case that is being heard right now. These are the matters that Apple and Samsung have presented.
The Point I am making is Apple have requested the court to Demand Samsung give them access to their patents cheaply – BECAUSE they need them (I am of course glossing over the argument here – the documents are hundreds pages long)
My point is – when you or others say the case is JUST about Samsung copying Apple – its NOT thats ONLY half the case. The other half is Apple is demanding access to Samsungs patents – but not wanting to Samsung access to theirs. It IS part of the law suit and its part of WHY this is more complex. ITs not something the Jury is dealing with – but it IS part of the case. This is a big and complicated case and the Apple patents are only a part of it and this is the point I am trying (and I apologies – I have done a really bad job) to make. But the Samsung copying apply bit it a BIG part of it but its NOT all of the case. Only part of Apples case… If you dont understand that you have missed the entire point of what Apple’s legal team is doing AND what the long term implications will be for Apple – for the consumer and for Samsung and for IT in general. Samsung can work around those patents.. thats not really that important. Its the rest of the stuff thats earth shattering
Is the point here that Apple is great at creating stuff or great at selling them. It seems to me that everything apple ever invented is a great marketing strategy.
@Andrew what about Apple’s “marketing strategy” is so unique or difficult to copy? If all marketing activities were suddenly made illegal for all companies, do you seriously imagine Apple’s competitive advantages would be significantly undermined? If so, in what specific way(s)?
-OMG, are you iPeople actually sane? Do you even know what the supposed violated patents are?
-A “green icon with a white phone” – Innovation? really?
-A “Rubber band effect” – although somewhat cool, innovation? Invention?
-Rounded corners on a mobile device – 1 Apple didn’t invent that, and 2, it shouldn’t be patentable.
- Double-tap to zoom/ Pinch to zoom – Every touch-screen phone and tablet out there has that feature, how is it that that doesn’t fall into the common art?
-Rounded square icons – again, STUPID
While I’ll give Apple its due for making a cool product, they and their iSheep act like irrational 3 year olds having a temper tantrum. Its pathetic really; you’d expect a bit more class from a company that professes to be so classy.
“Free and Open Source Software” — FOSS — advocates have chosen the strangest possible field for their case.
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Google’s Schmidt has claimed a quarter million patents read on every smartphone; while I can’t verify that huge number but certainly the industry has always relied on not just respect for, but payment for others’ work.
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By definition, the majority of the phone patents existed in 2007, before Apple entered the field. But now that Apple has entered the market, FOSS advocates are declaiming the illegitimacy of licensing patents in phones.
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The selective telling of history leaves out all the IP battles pre-Apple, and many explode in anger over Samsung being assessed a billion dollars of damages, not even having HEARD that Apple has paid a similar amount to Nokia for licenses to use Nokia’s extensive work. Many self-describe as being enraged by the injustice wrought by Apple’s assertion of IP rights, but have an utter blind eye to how Motorola has, for decades, attempted to refuse its IP, even after it made a legally-binding pledge to license it to any and all on non-discriminatory terms.
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Since this is business, any violations of property rights can be corrected by simple payments. There’s no need to worried about morality. But FOSS advocates, and people inspired by a free-sharing ethic, have to realize that their advocacy would totally destroy Nokia and others that built this business — their licensing revenues are about all that’s left of their erstwhile dominance, from which they hope to base a comeback — while free-sharing would also discourage subsequent firms from spending billions over years, and at great risk, as Apple did.
Shadowboxer, you’re confused.
The patents Samsung CLAIMED Apple infringed, are FRAND patents – that is to say, patents which they VOLUNTARILY agreed and commit to license on fair and reasonable terms to anyone.
Samsung is legally obliged to license FRAND patents to Apple. Just so we’re clear, companies do NOT agree to FRAND terms to ‘help’ anything but themselves – it’s not a goodwill gesture, how naive do you have to be to believe that? It’s a purely financial decision, in which they determine that they will make more profit by obligating themselves to license at more reasonable rates, and gain widespread adoption as a result, then to not agree to those terms and risk the rest of the companies trivially working around the technology in question.
Apple is NOT legally obliged to license anything to Samsung, because it, perfectly within its rights, did not elect to FRAND it’s design or utility patents (obviously).
As it turns out, in court, Apple was found to NOT be infringing Samsung’s patents, but Samsung was found to be infringing Apple’s.
You state that Apple ‘copied’ the components to ‘make it work’ – sorry, but that’s nonsense. When you buy a wheel from a wheel manufacturer, you are not COPYING the wheel, the wheel manufacturer WANTS you to use their product in yours. The sale gives you any legal right you require to use the wheel as you see fit. The same wheel component is available to other companies, and you’re well within your rights to purchase it. The exact same is true of any parts Apple had Samsung manufacturer. Remember, in most cases Samsung is just that, a manufacturer of parts. Apple could just as easily go to other companies to get the same part. In many recent cases the part Samsung is told to produce by Apple is Apples own design, such as the A5 processor, and in others Apple is already moving to other manufacturers for its parts.
@Daniel Buchner – your lack of a grasp on what this case is about is disturbing. In the context of mobile phones, as they relate to the mayonnaise analogy, the raw materials, the off the shelf components, such as Aluminium, Glass, even some components such as DRAM – are the ingredients. Apple is not claiming ownership or attempting to patent those, as you so ridiculously imply. Apple is patenting the design and presentation of the mayonnaise packaging, which has become an iconic symbol of quality mayonnaise worldwide. It is also patenting a new novel implementation it created for the user to interact with the Mayonnaise which had not existed before, which the users love. Samsung has come along, packaged some slightly inferior mayonnaise in the same way, in it’s position as a manufacturer of some of the mayonnaise ingredients, blatantly ripped off the interaction technology, and been found guilty of that.
@JW – no, the correlation I draw to other industries is perfectly viable. Under this mentality, we would be assessing the roll and shape of car body panels to ensure the two cars in question did not look alike enough to warrant an endless chain of trade dress lawsuits.
Have you done any UI/UX design in the past JW? I ask this because the layout, color, shape, and location of interface elements is often not dictated by a whimsical style choice. These things are manifested similarly across all manner of devices because there is a human interaction optimization point for many of these things. Why is the call button on almost all phones located on the lower left of the screen, and in many cases green? Not because the companies all love piracy JW! It is because 90% of the public is right handed, and thus holds a phone in the left hand. This means the button is closest to the thumb at that location. Additionally, green is chosen because for decades it has signified “GO”, not because the creators loved stealing things or are Irish. You can’t patent common sense folks.
This is all moot, even if infringement was the call, the jury was supposed to assess the case for *actual damages* not *punitive damages*. I strongly contend that there were close to zero actual damages, here’s why:
Who the hell walks into a store and says: “Give me the one with a shiny bezel and a black front” <– NOBODY EVER, that's who. They say, "I'll take an iPhone please" or "Give me the latest Droid" – if you can point to a large swath of people who walked into a store intending to buy an iPhone, who walked out with a Samsung phone due to the bezel likeness or shape of a few of Samsung's models, I will eat my hat.
JW – I'd caution commentary on my "lack of grasp" on anything friend, you have no idea what you're talking about.
I vote for John Sculley’s ‘Knowledge Navigator’ as a wonderful platform for iPad’s ‘A-ha!’ moment.
Levine and Boldrin make a compelling case that IP protection (government monopoly) hinders the progress of the science and the arts. See:
http://levine.sscnet.ucla.edu/general/intellectual/againstnew.htm
What disturbs me is that so many assert as fact that IP monopoly is a fundamental requirement for innovation – like some sort of physical law. The (free) book cited above provides plenty of evidence to the contrary.
Invention and Innovation. Which one deserves patents? Both of them deserves but instead of 20 years make them less…
@Warren Strange wrote, “ Levine and Boldrin make a compelling case that IP protection (government monopoly) hinders the progress of the science and the arts.”
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I’ve seen a few well-intentioned and even expert opinions in that vein. Tim Berners-Lee, for an outstanding example.
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But I can’t believe that ANY of them would claim that their personal opinions legitimize the theft of Apple’s or others’ intellectual property rights as they’re currently written into the law. Even the most Libertarian relies on government for enforcement of property rights. You have to be an utter anarchist to call for an abrupt overturning of them.
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And I’ll even wager that most of them are realistic enough to recognize that the fact that the issue hasn’t even been addressed in the various reforms that Congress has implemented into law, means it is unlikely to come out in our democracy or other governments’ laws.
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So yes, let’s have a good discussion about how intellectual property laws can be most helpful.
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But not pretending that Samsung’s abuse of Apple’s patents is in any way related to these honest considerations.
Related to FRAND patents:
http://www.appleinsider.com/articles/12/08/13/apple_frand_win_over_motorola_slashes_googles_patent_power.html
@Daniel Buchner
Who the hell walks into a store and says: “Give me the one with a shiny bezel and a black front” <– NOBODY EVER, that's who. They say, "I'll take an iPhone please" or "Give me the latest Droid" – if you can point to a large swath of people who walked into a store intending to buy an iPhone, who walked out with a Samsung phone due to the bezel likeness or shape of a few of Samsung's models, I will eat my hat.
Well sir, you will have to eat your hat then.
I can't tell you how many people I've seen say "what does that (iPhone) do?" (Answer: Apps, web browsing, etc.), "what about that one (Samsung)" (Answer: pretty much the same thing). "Well, they look the same, and this one's cheaper, why should I buy that other one?"
And there you go.
It's easy to make the mistake of putting yourself in other people's shoes, since you yourself are, like them, a consumer. But keep in mind that you are a consumer that is bothered enough to write a blog post concerning tech patents, and called out someone's possible lack of grasp regarding UX.
You're not an ordinary consumer sir. You will notice the difference. Others won't.
You’re right !
Even a human being is made of electrons and protons and molecules and all this stuff. But, do not forget that an idiot is made of the same kind of materia than a genius…
Your mayonnaise was disappointing, the chef’s one a success…
Think about creating useful things rather than put ingredients together and wonder for a miracle to happen…
(sorry for my approximative English, but you get the point, right ?)
Sent from my iPhone (lol)
The comments are being overrun by missed points and straw men. This is such an apt description of what’s happened.
One can argue whether patents are good or not, but under the current legal system, Apple has to act to protect it’s IP. Like all the companies suing Apple. You’d think from all the noise that Apple was the only one misbehaving.
‘no, the correlation I draw to other industries is perfectly viable’
As I already outlined, it isn’t. You’re comparing the ingredients of a mayonnaise to the completed design of a product (the iPhone) and saying that Apple is trying to patent ‘the ingredients’. This is grossly incorrect. The ingredients of a smartphone have nothing to do with what Apple is protecting:
Here is your quote:
‘The person who invented mayonnaise did not claim intellectual property rights over oil, eggs, mustard, vinegar, and chickens afterward.’
The point is, neither did Apple. Your own inability to understand what this legal case is about leads you to that incorrect conclusion.
‘Under this mentality, we would be assessing the roll and shape of car body panels to ensure the two cars in question did not look alike enough to warrant an endless chain of trade dress lawsuits.’
See, this, as I suspected, underlines your lack of a grasp on the legal system. A Design Patent, legally, is inextricably tied to the specific device which is intended to protect the design of. The ‘roll and shape’ of a car is clearly a factor, in determining if one infringed the other, but the overall comparison of one device with another is a legal test in court (which is why the iPad was pictured next to the Galaxy Tab, for example). The design patent itself outlines the aspects of the product in question which are protected, but it’s the product itself which is compared. In this specific case, none of the claims which were successful were solely to do with rounded corners or rectangles – so you’re wrong even with the premise to your false conclusion.
‘Have you done any UI/UX design in the past JW? I ask this because the layout, color, shape, and location of interface elements is often not dictated by a whimsical style choice’
Yes, I have, I do it every day. And while some UI elements can be argued to be independently derived, there was a copious amount of evidence in this case that Samsung hadn’t done that. They revealed a 132-page document outlining everything they had copied, with comments essentially saying ‘lets do it like they do’. There are also numerous examples of phones which have excellent design but do not infringe on Apple’s patents, entirely defeating your point.
‘Why is the call button on almost all phones located on the lower left of the screen, and in many cases green? Not because the companies all love piracy JW! It is because 90% of the public is right handed, and thus holds a phone in the left hand. This means the button is closest to the thumb at that location. Additionally, green is chosen because for decades it has signified “GO”, not because the creators loved stealing things or are Irish. You can’t patent common sense folks’
The reason this whole paragraph is an irrelevant story is that none of the patents asserted by Apple consisted of the location of the phone icon, or that green was used. To claim such is to have an extremely vacuous (if any) knowledge of the case and the patents involved. Further, despite being irrelevant, it’s also factually incorrect – phone icons are numerous different colours and in numerous different locations on hundreds of successful phones.
‘This is all moot, even if infringement was the call, the jury was supposed to assess the case for *actual damages* not *punitive damages*. I strongly contend that there were close to zero actual damages, here’s why:
Who the hell walks into a store and says: “Give me the one with a shiny bezel and a black front” <– NOBODY EVER, that's who. They say, "I'll take an iPhone please" or "Give me the latest Droid" – if you can point to a large swath of people who walked into a store intending to buy an iPhone, who walked out with a Samsung phone due to the bezel likeness or shape of a few of Samsung's models, I will eat my hat.'
Once again, your profound lack of any grasp of the law surfaces. This case is broken down into 3 categories, design patents, utility patents, and trade dress.
Utility patents, involve a specific functionality being copied, completely irrespective of any consumer involvement.
Design patents, involve a specific design (essentially a visual trademark) being infringed, which again can be satisfied without any consumer involvement.
Trade dress, finally, the least important in this case (in terms of damages) CAN be evidence by people buying a Samsung because they mistake it for an iPhone, but that is NOT a legal requisite. All that is required for trade dress to have occurred is a dilution of said trade dress by ANY ASSOCIATION of the device in question with Apple's. For example, if a customer sees a Samsung phone, recognises that it's different to an iPhone, but associates it with Apple because of the icons and the fact that those icons are the same, that IS SUFFICIENT, legally, to satisfy trade dress infringement. So your comment is absolutely and entirely irrelevant. Which is how I know, from your comment, that you have no clue how the law or this case worked.
To educate yourself before further embarrassment, you should read the following excellent article which outlines everything that damages were awarded for:
http://techpinions.com/pinch-to-zoom-and-rounded-rectangles-what-the-jury-didnt-say/9465
To Quote:
‘Samsung contributed greatly to this with a post-trial statement that said: ““It is unfortunate that patent law can be manipulated to give one company a monopoly over rectangles with rounded corners, or technology that is being improved every day by Samsung and other companies.” It’s more unfortunate that the claim was a gross exaggeration that was swallowed whole by many writers.
Apple claimed that Samsung infringed on four design patents. The D’677 patent covers the overall design of the iPhone while D’305 covers the layout of icons. These claims were upheld. But the jury rejected infringement claims based on patent D’889, which covers the iPad, and rejected eight of 13 claims under D’087 and which deals specifically with the rectangles-with-rounded-corners design of the iPhone (see the relevant sections of the jury verdict form below.)’
@JW asserted, “…the jury was supposed to assess the case for *actual damages* not *punitive damages*…Once again, your profound lack of any grasp of the law surfaces.”
.
Gosh, Samsung’s own witness testified for damages regards the patent infringement, and the law is clear that in design patent infringement, the damage is the entire profit of the offending device. Most of the damages, of course, were for the design infringemen
.
Your long, rambling post is just chockablock full of junk assertions without anything except your outrage to back you up. Chill. Anger is even MORE physically harmful to Type A personalities, which a Pop Psych assessment marks you as.
@JW can you get through one comment post with less than 10 instances of ad hominem?
You’re partly right (in a bad way), Apple not only tried to patent inane, low-level concepts like bounce back and icon configuration, they also attempted, through trade dress, to patent the general look and feel that most smartphones exhibit today.
Patents, regardless of the USPTO’s failure to correctly assess relevant data/facts when they grant them, are to be reassessed by civil juries in these cases to establish validity regardless of what any moronic patent clerk failed to see.
There are two main factors in such jury assessments: prior art and obviousness. I’m not going to just argue, I’ll flat out tell you: they failed that duty. App icons in a grid? An *obviously, barely different* adaptation of any desktop OS dashboard. Bounce back? Hell, this was introduced via JavaScript effects on the web well before that patent was a twinkle in Steve’s eye.
If this was a painting, Apple is trying to assert patent rights across the design spectrum: paint/brushes, their end Piccaso-esque “masterpiece”, and frighteningly, cubism itself. This is evidenced by their inclusion of the Galaxy S3 in their ban list. Not only does the Galaxy S3 not look like an iPhone, and have far superior technological internals, it is, by the measure of many, an all around better phone.
If the result of this ruling is that Apple secures a far-reaching ability to ban products, even those that no consumer would ever mistake for an iPhone (like the S3), the entire industry, and we as consumers, are going to get bent over a table.
@ Jeff Ratcliff: Regarding InterPress patents, Adobe and TrueType. For the record, the idea of representing a typographic font using a set of curves, of equations can’t be patented, it’s just an idea. The implementation can and, in TrueType’s case, is. Given the level of hostility TrueType generated at Adobe, one might want to ask why they didn’t sue Apple. The answer is Gifford Calenda’s work was original. It used a different mathematical approach, different hinting systems, different solution for very small type sizes etc. Besides the considerable economic benefits – Adobe fonts were expensive – TrueType required less storage, less computing power, thus making it very viable on low-end machines.
/ignores the burning straw men
Apple doesn’t invent things, they reinvent things. “Think Different” was more than a marketing slogan, folks.
@Daniel Buchner: “Apple … attempted … to patent the general look and feel that most smartphones exhibit today.”
Funny how they didn’t try to patent the general look and feel that most smartphones exhibited in 2007.
Part of the discomfort people are showing on this topic is that Apple wants to protect the iPhone as a whole, because it sees the whole is greater than the sum of its parts. Unfortunately, this approach flies in the face of logical argument and the legal system processes that have evolved over millennia. We are able to make finer and more precise distinctions, we see this ability as the best way to do things (it’s “scientific”!) and thus the court cases evaluate each individual item identified and tally up the results.
We can make reasonable arguments about this claimed invention or that being valid, worthy of protection, etc and through this reasoning come to different conclusions. This is right and proper. Where money is riding on the outcome, we gather a group of people to formally decide on matters of fact (a jury) and one or more people to decide on matters of law (judges). We hire the people who are best at arguing to promote our point of view (lawyers). At the end of a defined process, we have an “as-objective-as-we-can-make-it” result (court cases, appeals, final decisions). We are still free to disagree with this result, but the rigour of the process makes a contrarian argument much less defensible to others.
@Shadowboxer: “I kinda think that the technology that is REQUIRED to make the phone work is fairly important and i find it amazing people can dismiss it so easily … I would like to suggest that THE BITS INSIDE actually do matter just as much as the bits outside”
In a context of “somebody made something new/different/amazing” the attitude you express is not in dispute. Every part works together to make a coherent device, and should you remove a component the device is the lesser for it.
In a context of legal argument, however, the idea of value is intrinsic to the debate. As inequitable as it may seem, some things are valued more than others based on personal preference and context (I might value a 50g apple more than a 50g banana if I wanted to eat a piece of fruit, but the reverse might be true if I wanted to bake a cake). Because of this, people disagree on the value of certain things in a given discussion, but we have a mechanism called a market that gives us an aggregated opinion on the intrinsic value of a particular item.
As far as Samsung is concerned, by committing its intellectual property to a formal standard it accepted that the market would determine a fair and reasonable value, and that it would not seek to differentiate its pricing regarding those items, nor restrict the items’ availability depending on the customer.
So, in this legal context, Samsung’s IP is worth what the market says it is. The market has determined that a fair value is lower than what an uninformed observer would estimate. It is “standard” technology licensed to all comers; Apple’s IP is not being licensed and therefore is more difficult to obtain and therefore attracts a higher value.
I hope this adequately explains the discrepancy you have struggled with.
@Jose,
“[I use Apple products but..]
Imagine your Chef wants to forbid you making mayonnaise because he “invented it”(obviously not) and he registered a patent(monopoly) for that.
This is exactly what Apple is doing. I was doing mayonnaise myself(using pinch to zoom in my software and elastic simulation of dynamic objects) 10 years before them, other people more.”
Rubbish. No-one is preventing you from making mayonnaise. Who serves “mayonnaise” as a dish? Mayonnaise is but one element of a complete dish (Touch, let’s say). Every mayonnaise tastes and looks subtly different, so there is room to vary the gestures used (you can use a fork or a whisk).
But you would be roundly and rightly chastised for copying a dish created by a great chef. If you used all the same ingredients, cooked them all the same way, and tried to plate them exactly the same, and served it up as your dish when it is the signature dish of a famous restaurant, you would be in hot water.
Seems that lots of people get angry because of particular patents Apple used to win this case against Samsung. One can’t win in court claiming that the case is obvious.
Just like the prosecution of Al Capone for tax evasion..
When I originally commented I clicked the “Notify me when new comments are added” checkbox and now each time a comment is added
I get three e-mails with the same comment. Is there any
way you can remove me from that service? Bless you!
@JLG, may I suggest that you close all comments after say, 4 weeks?
.
One of the benefits of this blog is a long tail of people who think before they write, but the ratio of (spam+emptiness) to content starts rising after a while.
I´m part of a group of volunteers that is starting up a new scheme in our neighbourhood in Memphis. One of the community projects that we are going to to initiate relatates to your blog, and therefor some of the information here is of value for us and I just wanted so say thank you for that.
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