How Apple v. Samsung Was Explained To the Jury 330
jfruh writes "10 jurors have been sworn in for the Apple v. Samsung case, which is at the heart of the ongoing patent disputes over the companies' smartphones. While most Slashdot readers are familiar with many of the facts of the case and the law, the jury is at least in theory supposed to be something of a blank slate. Thus, it's interesting to see the detailed instructions Judge Lucy Koh gave to the jury, covering everything from the differences between utility and design patents to how to measure the credibility of witnesses."
Here's how it was explained (Score:5, Funny)
Ladies and gentlemen of this supposed jury, I have one first thing I want you to consider. Ladies and gentlemen, this is Samsung. Samsung is a electronics maker from the country Japan. But Samsung markets in the country America. Now think about it; that does not make sense!
Why would Samsung, a Japanese electronics manufacturer, want to market to the United States, with a bunch of 2-foot-tall phones? That does not make sense! But more important, you have to ask yourself: What does this have to do with this case? Nothing. Ladies and gentlemen, it has nothing to do with this case! It does not make sense! Look at me. I'm a lawyer defending a major computer company, and I'm talkin' about Samsung! Does that make sense? Ladies and gentlemen, I am not making any sense! None of this makes sense! And so you have to remember, when you're in that jury room deliberatin' and conjugatin' the Emancipation Proclamation, does it make sense? No! Ladies and gentlemen of this supposed jury, it does not make sense! If Samsung lives in Japan, you must convict!
Re:Here's how it was explained (Score:5, Informative)
Re:Here's how it was explained (Score:5, Funny)
That does not make sense!
Re:Here's how it was explained (Score:4, Funny)
Forget it, he's on a roll.
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So that's how those footprints got on there.
Re:Judge Lucy Koh (Score:4, Insightful)
Wait, you mean a judge previously issued a legal ruling?
BIAS!!!
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Wait, you mean a judge previously issued a legal ruling?
Yep, the very same judge Lucy Koh, ruling against Samsung, on the a case which is very very close to this one
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So what?
Did the facts support the ruling? Or are you just assuming BIAS!!
"All Things D got a copy of Koh's order, and we just gave it a quick read. Turns out that she granted the injunction due to the strength of the merits of Apple's case and the unlikelihood that Samsung would invalidate Apple's design patent -- the court already held that the 10.1 is "virtually indistinguishable" from the iPad's design and likely infringes Apple's IP. Furthermore, Judge Koh held that, because Apple and Samsung a
Re:Judge Lucy Koh (Score:5, Interesting)
I would argue that apple's design patent is invalid.
Here is why, and it has nothing to do with opinion of apple:
A design patent can only be legally issued for "unique, new, and novel" shapes and design motifs.
Apple's idevice designs are none of those. They basically looked at a cheap plastic picture frame, and copied it.
Many consumer products come in this form factor, and have for a very long time. Here are some examples:
Chinese dry erase board, tablet size [oempromo.com]
Wooden round cornered picture frames [cronescust...orking.com]
aluminum picture frame, chinese [made-in-china.com]
For reference, here is what the iPad looks like.
complimentary iPad image [webmasterstuff.com]
The color of the inactive display (black) is not a design feature. It is a feature of how the technology works.
I have seen plastic picture frames that are flat out strikingly like the iPad in aesthetic design in art stores since the late 80s, when plastic really became popular as a choice. If you are showcasing an image, using a picture frame as an aesthetic inspiration is a no-brainer.
Apple should not have been granted this patent.
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They basically looked at a cheap plastic picture frame, and copied it.
And with this, your argument about design patents is over.
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The cheap plastic frame was itself copied from designer wood designs, like those listed.
Do try to read the whole post.
Plastic frames became an inexpensive choice over expensive wood ones, especially for holding small format family photographs, especially since clear plastic was shatter resistant, where glass covers were not.
This led to an incremental design choice, which was not patented and widely copied where the frame portion of the plastic was directly molded with the clear covering to make it perfectly
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Are you seriously saying that wood frames are prior art to plastic frames which are prior art to the iPhone?
Because, if you are, you've drug me down to your level, you idiot.
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Ask and you shall receive.
-----
The standard for determining novelty under 35 U.S.C. 102 was set forth by the court in In re Bartlett, 300 F USPQ 204 (CCPA 1962). "The degree of difference [from the prior art] required to establish novelty occurs when the average observer takes the new design for a different, and not a modified, already-existing design." 300 F.2 133 USPQ at 205 (quoting Shoemaker, PatentsFor Designs, page 76). In design patent applications, the fact in determining anticipation over a prior a
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I find it amusing that you would say that, given that established caselaw and precident for determining applicability for protection and the grounds for application rejection more closely parallel GP's view than yours, according to the cases cited by the USPTO concerning the applicability and enforcement of design patents.
For reference, what exactly *DO* you think design patents are for?
The intended enforcement class is for a completely novel physical shape or image feature, which is not manifest in *any* o
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Of course, none of those things you cited are 'electronic devices', which are what the patent claims.
Re:Judge Lucy Koh (Score:5, Insightful)
It could very easily exist in the form of a digital picture frame, which would then look very much like an idevice, and be a digital device.
Claiming "but not in a digital device!" Is like claiming "On the internet!" Or "On a computer!" In a patent for something done commonly for years, as if it were not obvious.
While comonly granted, such protections should not have been enacted.
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A simple google image search for "digital picture frame rounded corners" yeilded this product on page one.
oh look. A digital picture frame. [lulusoso.com]
It was listed on that site over a year ago. Its fair to say it has been on the market awhile. It is arguable if it was designed due to the popularity of the ipad and iphone, but it has existed in the market as a digital device and as far as I know, the manufacturer has not been sued for at least a whole year.
Again, the product was returned on the fist page of image resu
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Except you have to take all design patents into account at the same time, not individually.
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Are you a patent lawyer or patent clerk? Why do you base your judgment on this if you're not? What's the legal precedent?
Besides, Sammy is fucked. Their internal communications basically said, "copy the iPhone. Now. Before we become irrelevant.". That's fucking damning.
Re:Judge Lucy Koh (Score:4, Interesting)
Besides, Sammy is fucked. Their internal communications basically said, "copy the iPhone. Now. Before we become irrelevant.". That's fucking damning.
If you know Koreans, you would know that one special Korean characteristic is that they are one of the most stubborn race in this world
If you ever talk to any ship crew or flight crew that had Korean captains, you would understand why ship crews / flight crews all over the world are very scared of Korean captains - even when there is a huge storm brewing in front of the vessel/plane, the Korean captain would still give the "go straight ahead" order
Even after Google warned them of their products look too much like that from Apple, Samsung still went ahead and did what they did
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Often the burden of proof for obviousness is "the opinion of a lay person of that field." I am not a patent lawyers, but I have dealt with framing images and prints, and have been for years.
The aesthetic layout of the ipad looks exactly like a cropped, matted, and framed image in an inexpensive frame.
Claiming that this is new and novel is fundementally false. Images have been framed like that for decades before apple even considered making a tablet. This is evidenced by the wide number of products that inc
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And Jony Ive has been open with the fact that he gets inspiration from Braun, Sony and other firms.
The problem here isn't that Samsung is being inspired by the iPhone, it's that they aren't adding new ideas and with the S3, we see a huge improvement, but the fact that it still has the IPhone like menu button is disconcerting.
The current mobile phone landscape is depressing. Apple is one of the few firms with good ideas, although HTC and Nokia are really on base lately and I hope that trend continues, but th
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Do I think apple should get trade dress protection? Yes.
Do I think their design is innovative? No.
Does it deserve patent protection? No.
Did samsung copy the design? Probably.
Then again, I think samsung should get away with it. They were marketing a popular and generic form factor, that fits with current "ultramodern" and "utilitarian" design choices. This is likely the same marketing decision apple used when *they* chose the form factor: it will look good in an apartment when placed with similarly themed ob
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Except you can not confuse a totally different product with an iPad, but you can confuse a tablet with an iPad if it shares a similar design.
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You didn't use the word bias, but you sure described it. "I am concerned with is the conduct of the judge Lucy Koh" is about as clear as it gets.
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That's because you are a retard. You implied bias the moment you demonstrated concerns about the judge and pointed out a previous ruling as a reason for your concern. If you were not implying bias, you would not be concerned.
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http://en.wikipedia.org/wiki/Bias#In_judgment_and_decision_making [wikipedia.org]
Seriously, you're wrong.
Shut the fuck up.
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It sounds like your argument is because this judge ruled fairly against Samsung the first time, she is going to come in the 2nd time just assuming they are guilty of whatever
See the emphasis above?
..." does not hold water in this discussion
" It sounds like
What I said, and I believed I have stated it clearly, more than once, was that I am concerned about the conduct of the judge Lucy Koh, and her ability to be fair
I never said, and never meant, just because that judge Koh ruled against Samsung in a previous case, she must be "BIASED"
No, what I meant, to put it in one simple sentence, is this-
If I were Judge Lucy Koh, I would excu
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Please read my messages again, if you have the time
I did not say whether judge Lucy Koh "might not able to be fair"
I said that I am concerned whether or not judge Lucy Koh can be fair, and how she would conduct herself
This is getting to the realm of splitting hair - but please, stop putting words into my mouth - I said what I said, and I stand by what I said - as for other things that you or others want to implied, or inferred, or whatever, they are all pure conjectures from your own minds
Concern Troll (Score:2)
You asked if anyone thought the judge could be fair ...
Yes, I did ask that
Nope, that "implied" thing is a conjecture in your own mind. I never said "BIAS" and never meant it My concern was if the judge Lucy Koh could be fair in this case
Holy shiat, dude. You're the most transparent concern troll in history. Do you think ANYONE will fall for this? And come on, with the way you keep emphasizing "judge LUCY," are we really supposed to take you seriously at all?
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Oh, so are you afraid she might be fair? Well in that case you should be concerned, because given her track record that's very likely... If that's not what you meant, then you are concerned about she being biased. So, which is it?
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God damn man, I was having fun with the trolls!
Judge Koh, to you (Score:2)
Isn't the judge, - Lucy Koh, - the same judge that grant an injunction for Apple, against Samsung ?
As illustrated in Slashdot's report on http://apple.slashdot.org/story/12/07/02/0241212/samsung-appeals-apples-injunction-against-galaxy-nexus [slashdot.org]
The preliminary injunction in this same exact case?
How fair you think this judge Lucy Koh can conduct herself?
Very fair. She's previously ruled against Apple on several matters.
But I have a more important question... You keep not capitalizing the word "judge" and keep emphasizing that her name is "Lucy"? Is this a subtle attempt to troll based on her gender? Is this a classic "she's a woman, what does she know about technology" bit of sexist FUD? Why exactly should we think you are being fair?
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Also the same judge who found Apple and a bunch of other companies to be guilty of engaging in non-poaching deals.
Mod parent troll down (Score:2)
How fair you think this judge Lucy Koh can conduct herself?
If I were Judge Lucy Koh, I would excuse myself from this case, or else, no matter how I conduct myself in this case, people will still question whether my judgement is fair
My concern was if the judge Lucy Koh could be fair in this case
Of course, Judge Koh is Korean-American. From his previous posts: [slashdot.org]
If you know Koreans, you would know that one special Korean characteristic is that they are one of the most stubborn race in this world
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FYI, judge Lucy Koh is not a Korean-American
She is a Chinese-American
Get your facts right, please
Obama picks Korean American for federal bench [sfgate.com]
President Obama has nominated Lucy Koh, a Santa Clara County Superior Court judge, to the federal bench in San Jose. If confirmed, she would be the nation's second Korean American federal judge.
She is the daughter of Korean immigrants. Her mother escaped North Korea after the 1945 division of Korea by walking south for two weeks while suffering from yellow fever, and her father fought against the Communists in the Korean War, then opposed a military dictatorship in South Korea and immigrated to the United States, according to the Asian American Justice Center, a civil rights group.
Re:Judge Lucy Koh (Score:5, Interesting)
I am not optimistic about this case.
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Re:Judge Lucy Koh (Score:4, Insightful)
Bias towards what? Common sense?
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Hey! I didn't know Ben Elton had a Slashdot account! Why are you posting anonymously?
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Both Samsung and Lucy Koh (the judge) are Korean, and after reading the article I have full trust in her competence.
Re:Here's how it was explained (Score:5, Informative)
Listening to an argument is meaningless when you do not understand the concepts involved. All the judge did was provide a brief glossary for pertinent terms, like "design patent" and "ornamental design." There is nothing underhanded going on.
Re:Here's how it was explained (Score:4, Informative)
Think of it this way - instead of Umpire's at a baseball game calling balls/strikes/outs MLB
decides it would be better for unpartial outsiders to come in and call the game. When they arrive
they don't know the rules - so on coach argues safe and the other coach argues out but you
didn't know what safe or out even meant and what actions lead to them it would be hard for
you to make an informed decision - so before hearing the arguments from opposing coaches
who (since they are opposing) will be syaing the exact opposite of each other, the league has
an expert explain all the rules of the game to you and tells you what information to use when
making your decision (i.e. what you saw/heard, video replay, etc.) and what *not* to consider
(how loud a coach yells, how much spit is drooling don his chin, etc.)
Oracle vs Google (Score:5, Insightful)
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Re:Oracle vs Google (Score:5, Interesting)
Re:Oracle vs Google (Score:4, Interesting)
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Re:Oracle vs Google (Score:5, Insightful)
Re:Oracle vs Google (Score:5, Insightful)
I think the patent office needs to be smacked down a bit, too. This entire class of patents is ridiculous. You shouldn't able to patent a shape unless that shape advances science and the useful arts. Create a 4th dimensional Hypercube? Fine, that deserves a patent. Create a rectangle made of glass an, metal and plastic? Hell no!
Re:Oracle vs Google (Score:5, Insightful)
Design patents serve a somewhat useful purpose, although I think things like trademark and trade dress serve the purpose better. Just like utility patents, the problem isn't necessarily that they exist, but that USPTO is handing them out like candy. A deliberately minimalistic design with no distinguishing features other than its minimalism shouldn't qualify for a design patent, just as an extremely obvious patent that is just performing an existing operation on a new class of device shouldn't qualify for a utility patent.
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yes, but Rothko got away with calling deliberately minimalist rectangles art. He got famous for it, and maybe even rich.
Re:Oracle vs Google (Score:4, Insightful)
Re:Oracle vs Google (Score:5, Insightful)
Those appearance patents are only meant to prevent another companies product being sold in the same guise as the patent holder's product. The point of protection being if people were buying the Samsung product in the mistaken belief it was an iPhone. That should be the only thing viewed by the judge. If people are buying the Samsung product based upon preferring the software Android, then that should be the end of it, they are not confusing the offerings, this is clearly a gross abuse of the intent of design patents.
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Re:Oracle vs Google (Score:4, Interesting)
It came out a few days ago when a lot of the discovery material was unsealed that something like 25% of the returns to Best Buy for the Samsung products Apple is citing in this case as infringing were because the customer incorrectly thought they were purchasing an Apple product and returned it once they realized it wasn't.
As you said, it's something that should be considered, and it sounds like it will be, since they have numbers on it.
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That just proves atleast 25% of best buy customers fail to read even the packaging.
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The problem is that the understaffed USPTO (gee, I wonder why...couldn't be patent lawyers filing a shitstorm of patents) can't do much but rubber stamp things and let the courts sort it out.
The court however considers that the USPTO's judgement commands deference.
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We already have a thing called "trade dress" to protect distinctiveness.
Re:Why? (Score:4, Insightful)
I mean, even in a world where corporations are generally assholes, Apple managed to outdo the other players in the industry in sheer assholery. That's the only thing they deserve a patent for.
Re:Why? (Score:4, Insightful)
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There were? What touch based OS did they run?
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My Palm OS device preferred stylus, but could work (badly) with finger touch as well. Resistive touch screens.
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I have no hesitation in acknowledging that Apple popularized touch based devices. But that doesn't mean it invented them. Guess what you need to validly patent something? Yup.
Re:Oracle vs Google (Score:5, Interesting)
I shudder to think what, say, the musical instrument market would look like today if the designs of cellos, violins, classical guitars, grand pianos, and countless other instruments with roughly equivalent shapes were similarly protected.
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Yeah, because clearly those instruments were all invented within the last 20 years, or even within 20 years of each other.
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Don't forget about trade dress. Trademarks can last indefinitely.
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I did not say anything as stupid as patents didn't exist 20 years ago - they have existed for hundreds of years. However, anything patented more than 20 years ago would not have patent protection any longer, as patents only last 20 years. So if the inventor of the cello patented the shape, 20 years later all of the other makers of cellos (and those other instruments) could have copied it, legally. So the OPs position that "he shudders to think what the modern musical instrument market would look like" is
Re:Oracle vs Google (Score:5, Informative)
The Fender Stratocaster was released in 1954 and totally changed the then-new electric guitar market. You can look at well-known electric guitar designs like the Telecaster and the Les Paul and just SEE that they were created before the Stratocaster was released. And you can look at a metric fucktonne of electric guitar designs and just SEE that they were created AFTER the Stratocaster was released. There's a clear point at which the "before Strat" electric guitar industry became the "after Strat" electric guitar industry. The shape of the Fender Stratocaster - influenced by pre-existing stringed instruments like the cello, but still new and unlike any electric guitar made before - became what electric guitars look like.
Fender did not pursue the Strat-clone manufacturers in court; and then after attempting to trademark the iconic Statocaster contours decades later, a court ruled in 2009 that "the body shapes were generic and that consumers do not solely associate these shapes with Fender Musical Instruments Corporation". The ruling went so far as to say "in the case of the [Stratocaster] body outline, this configuration is so common that it is depicted as a generic electric guitar in a dictionary." (bolds mine)
Apple ain't making that mistake.
Re:Oracle vs Google (Score:4, Informative)
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Apple ain't making that mistake.
Yes, in this case, the form factor being fought over is called a "tablet" a form so established, we can find examples of 'rounded rectangle tablets for displaying content' that date back to when humans discovered you could bake clay.
Its not a new design.
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Which is precisely the problem. If musical instruments were treated the way Apple wants its phones and tablets to be treated, countless makers of now standard instrument shapes would have been forbidden from building such instruments under patent and trademark law. There would be no cellos, violins, oboes or classical guitars as long as trademark rights in their designs persisted.
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countless makers of now standard instrument shapes would have been forbidden from building such instruments unless they simply obtained permission to do so
FTFY
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Just like Samsung could make perfect replicas of iPhones were Apple to give them permission to do so. Apple, of course, would never allow it. Knowing they could adds nothing of value to this discussion.
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I said classical guitars. If any two guitar designs don't look nearly identical, you can be sure that one of them (at the very least) is not the design for a classical guitar.
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Design patents don't preclude subsequent trade dress protection, so it wouldn't be "fair game" unless the owner of the design patent decided to forgo trademark protection or it were somehow ruled not distinctive after so many years of patent-enforced exclusivity.
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Re:Oracle vs Google (Score:5, Informative)
A flat rectangle with a touch screen is not a patentable design.
This is an erroneous claim. To see why, it is instructive to see what the US Patent Office has to say about design patents:
"A design consists of the visual ornamental characteristics embodied in, or applied to, an article of manufacture. Since a design is manifested in appearance, the subject matter of a design patent application may relate to the configuration or shape of an article, to the surface ornamentation applied to an article, or to the combination of configuration and surface ornamentation. A design for surface ornamentation is inseparable from the article to which it is applied and cannot exist alone. It must be a definite pattern of surface ornamentation, applied to an article of manufacture.
The Patent Law provides for the granting of design patents to any person who has invented any new, original and ornamental design for an article of manufacture. A design patent protects only the appearance of the article and not its structural or utilitarian features. The principal statutes (United States Code) governing design patents are:
35 USC 171: Whoever invents any new, original and ornamental design for an article of manufacture may obtain a patent therefor, subject to the conditions and requirements of this title. The provisions of this title relating to patents for inventions shall apply to patents for designs, except as otherwise provided.
[...]
35 USC 102: A person shall be entitled to a patent unless: (a) the invention was known or used by others in this country, or patented or described in a printed publication in this or a foreign country, before the invention thereof by the applicant for patent, or (b) the invention was patented or described in a printed publication in this or a foreign country or in public use or on sale in this country, more than one year prior to the date of the application for patent in the United States, or (c) he has abandoned the invention, or (d) the invention was first patented or caused to be patented, or was the subject of an inventor’s certificate, by the applicant or his legal representatives or assigns in a foreign country prior to the date of the application for patent in this country on an application for patent or inventor’s certificate filed more than twelve months before the filing of the application in the United States, or (e) the invention was described in (1) an application for patent, published under section 122 (b), by another filed in the United States before the invention by the applicant for patent or (2) a patent granted on an application for patent by another filed in the United States before the invention by the applicant for patent, except that an international application filed under the treaty defined in section 351 (a) shall have the effects for the purposes of this subsection of an application filed in the United States only if the international application designated the United States and was published under Article 21(2) of such treaty in the English language; or (f) he did not himself invent the subject matter sought to be patented, or (g) (1) during the course of an interference conducted under section 135 orsection 291, another inventor involved therein establishes, to the extent permitted in section 104, that before such person’s invention thereof the invention was made by such other inventor and not abandoned, suppressed, or concealed, or (2) before such person’s invention thereof, the invention was made in this country by another inventor who had not abandoned, suppressed, or concealed it. In determining priority of invention under this subsection, there shall be considered not only the respective dates of conception and reduction to practice of the invention, but also the reasonable diligence of one who was first to conceive and last to reduce to practice, from a time prior to conception by the other.
35 USC 103: (a) A patent may not be obtained though the invention is not identic
Re:Oracle vs Google (Score:5, Insightful)
The clear issue that stands out there, is that apple's design is neither new, nor original, and therefor not applicable for patent protection.
As others have pointed out, the combination of "rectangular, thin, with rounded corners and a small bezel border" is not new, and existed in aesthetic designs of personal devices prior to apple's adoption of the aesthetic feature set.
Apple is more claiming that it has taken the old and made it its own, which is now an apple signature appearance-- sure, they can do that, but that falls under trade dress and trade mark, not patent. Similarly to marvel owning red and blue packaging with a spiderweb motif for spiderman products. Making a generic product called "arachnaboy" and packaging it in red and blue blister packs with spiderweb motifs is a trade dress violation. Not a patent violation.
Apple should not have been granted this patent, due to prior art for other personal electronic devices. Claiming "but never a phone or tablet computer!" Does not magically make the aesthetic design novel, nor new.
I hope apple gets their precious little patent used as toilet paper, because in its current form it is completely without value.
Re:Oracle vs Google (Score:4, Informative)
(Submitting this comment again, since it apparently didn't get accepted the first time)
As I mentioned above, according to the US Patent Office, Apple's design met their criteria to merit the awarding of a patent. Whether or not the jury, and likely the appeal courts, agree, is still debatable.
To elaborate a bit on this, and also better refine by above post, Apple's design patents do not cover all rectangular-shaped electronic devices with rounded corners. Apple's design patents, e.g., for the iPad (D504,889, and others), are rather precise, and, ultimately, limited: they cover an article with a certain kind of case design, a specific screen placement and size ratio with respect to the body, and input port/button location. Provided that other companies/individuals do not, practically, reuse the same design elements, i.e., an article doesn't have buttons in the same locations, similar stylizations in the same locations, the same kind of package design, etc., the US Patent Office is willing to grant design patents.
Now, the court's view is mostly aligned with the US Patent Office's on what constitutes a valid design, i.e., the design threshold needed to afford protection via a patent. To begin, it is helpful to at least outline some preliminary case law about design patents:
"A design patent protects the nonfunctional aspects of an ornamental design as shown in the patent." (Elmer v. ICC Fabricating, Inc., 67 F.3d 1571, 1577 (Fed. Cir. 1995) (citing Keystone Retaining Wall Sys., Inc. v. Westrock, Inc., 997 F.2d 1444, 1450 (Fed. Cir. 1993))) The chief limitation on the patentability of designs is that they must be primarily ornamental in character. If the design is dictated by performance of the article, then it is judged to be functional and ineligible for design patent protection. (Best Lock Corp. v. Ilco Unican Corp., 94 F.3d 1563, 1566 (Fed. Cir. 1996))
As for case law about design thresholds, I found it by looking through that concerning infringement (a design patent is infringed by the "unauthorized manufacture, use, or sale of the article embodying the patented design or any colorable imitation thereof." (Goodyear Tire & Rubber Co. v. Hercules Tire & Rubber Co., 162 F.3d 1113, 1116-17 (Fed. Cir. 1998))):
Similar to the infringement analysis of a utility patent, infringement of a design patent is evaluated in a two-step process. First, the court must construe the claims of the design patent to determine their meaning and scope. (OddzOn Prods., Inc. v. Just Toys, Inc., 122 F.3d 1396, 1404-05 (Fed. Cir. 1997)) Design patents typically are claimed as shown in drawings. Claim construction by a court is adapted accordingly. Goodyear, 162 F.3d at 1116. The scope of the claim of a patented design “encompasses ‘its visual appearance as a whole,’ and in particular ‘the visual impression it creates.’” (Contessa Food Prods., Inc. v. Conagra, Inc., 282 F.3d 1370, 1376 (Fed. Cir. 2002) (quoting Durling v. Spectrum Furniture Co., 101 F.3d 100, 104-05 (Fed. Cir. 1996)))
Second, after construction of the patent’s claims, the court is to compare the construed claims to the accused design. Elmer, 67 F.3d at 1577. Infringement of a design patent occurs if "the designs have the same general visual appearance, such that it is likely that the purchaser [(or the ordinary observer)] would be deceived into confusing the design of the accused article with the patented design." (Goodyear, 162 F.3d at 1118) The patented and accused designs do not have to be identical in order for design patent infringement to be found. (Contessa, 282 F.3d at 1376) In determining infringement of a design patent, the court "is not limited to the ornamental features of a subset of the drawings, but instead must encompass the claimed ornamental features of all figures of a design patent." (Id. at 1379 (emphasis added))
The comparison of the patented and accused designs involves two separate tests, both of which must be satisfied to find infringement: the "ordina
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To understand how I reached that decision, beyond what I mentioned above, it is important to start with case law dating back to 1893, specifically Smith v. Whitman Saddle Co., 148 U.S. 674, respectively.
The Whitman Saddle case involved a patent on a design for a saddle. During its ruling, the court emphasized the importance of “invention” to the patentability of a design; it stated, “Mere mechanical skill is insufficient. There must be something akin to genius, an effort of the brain as we
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I hope so as well, as much as anyone else. Unfortunately, I don't think we're going to be as lucky as we were in the Oracle case. Judge Alsup really was one of a kind, even going out of his way to school himself on Java in order to better understand the case. Judge Koh doesn't seem particularly enlightened or intelligent, particularly since she already issued an injunction on Apple's patents, which are trivial to say the least.
But let's hope for the best. The case is still going to be decided by a jury, so
Re:Oracle vs Google (Score:5, Insightful)
I don't see her doing that. She seems to be explaining the boundaries of the case that she and the lawyers have "agreed" to, and what the jury needs to decide on. I didn't notice her telling them how to think.
The fact is the case is so broad and there are so many nits to pick, I'd be surprised if the jury could do anything rational with it.
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probably not going to happen with this judge telling the jurors how to think.
You must have read a different set of instructions than I did, or aren't familiar at all with jury instructions. The judge did no such thing. As much as I'd love to see Apple get smacked down in this silly and wasteful suit, one of the duties of a judge is to give said instructions explaining how the law treats terms used and what they are supposed to be deciding on. Nowhere did it say how they should decide.
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probably not going to happen with this judge telling the jurors how to think.
"Think Different" ?
Hahaha! (Score:5, Insightful)
While most Slashdot readers are familiar with many of the facts of the case and the law...
Hahaha!
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I am an owner of both an iPad and a Tab who has described the similarity between the two products, including coworkers thinking I somehow got the Android Home Screen on my iPad.
Fan? No. Somebody that has first-hand experience to bring to this discussion? Yes.
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I had both for a while and never got confused. They look obviously different to me.
So my anecdote invalidates your anecdote. Ha. Doesn't really matter anyway, the only point of law in question here is if a normal person would be dumb enough to buy the wrong one.
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Instead of developing my opinion from the polarized sources around the internet, I came to that conclusion after physically handling both. On a side note, I like both devices.
Function based design (Score:5, Insightful)
You want a screen on the front. Ok it will be flat in front. .... form follows function. Similar function means similar form.
You want to minimize cost. Ok as few elements as possible
You want to use it flat on a desk. Ok it will be flat in the back.
You want it to fit in a pocket. Ok it will be rectangular.
Re:Function based design (Score:5, Informative)
You want a screen on the front. Ok it will be flat in front. .... form follows function. Similar function means similar form.
You want to minimize cost. Ok as few elements as possible
You want to use it flat on a desk. Ok it will be flat in the back.
You want it to fit in a pocket. Ok it will be rectangular.
Yet strangely enough no-one actually did all this totally-obvious stuff with a phone before the iPhone was released.
Re: (Score:2, Informative)
Re:Function based design (Score:5, Informative)
Ever looked at the nokia-line? 3310? 8850? And a zillion other phones just like that?
What, you mean phones that are NOT flat on the front, have LOTS of interface elements (shit, count the frickin' buttons), are NOT flat in the back, and are NOT rectangular - and in the case of the 8850, actually change shape and size depending on what you're doing at the time?
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LG did.
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LoB
Re:Function based design (Score:4, Insightful)
You want a screen on the front. Ok it will be flat in front.
Yet before Apple, every smartphone and tablet had substantial bezels encroaching the screen to "protect" the screen if you put it face down, plus give you a space to grab onto. Apple made significant design impact that changed the market radically.
You want to minimize cost. Ok as few elements as possible
Actually, Apple has spent far more to achieve the minimalist design. This is common as minimalist designs (from products to architecture) usually require far more expensive manufacturing processes to achieve more precise tolerances since any minor manufacturing mistake is much harder to hide. Also, sacrifices must be made to assembly parts, often requiring all new parts be created to meet the form-factor constraints. Not to mention labor costs in design are much higher.
You want to use it flat on a desk. Ok it will be flat in the back.
Is Apple really challenging a flat back? Didn't think so.
You want it to fit in a pocket. Ok it will be rectangular
There have been many different ratios of screensize and device. Apple's particular ratios were not common in mobile devices pre-iPhone.
Now, combine everything together so that the design patents are seen as a whole, and yes, Apple made a fairly innovative product that has dramatically changed the smartphone market (including triggering the downfall of RIM and Palm). Pretending that what Apple did is somehow uninovative because other products had this or that feature before is ignoring reality.
And here's the big kicker. So what if Samsung had internal prototypes and designs that look similar to the iPhone before the iPhone launched? Apple got to market first, and used the Design Patent system as it is intended to protect their design from knock-offs and wannabees. Sucks to be Samsung, but thats how this is meant to work.
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Metamoderation already take care of this. I wish I could mod you redundant.