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  • Copying the Look and the Feel

    September 8th, 2011

    So Apple continues to make a little headway in stopping Samsung from selling gear that allegedly copies patented elements of the iPhone and iPad. It’s not that you can’t buy mobile products with Samsung’s name on them, but wins in Germany and elsewhere demonstrate that Apple may indeed be on the right track in their ongoing complaints.

    Now I do agree with those skeptical about the whole process when they say that you can’t innovate by filing lawsuits against competitors. Without being  a patent attorney, I’ll also accept the opinion that patents are being granted that are too broad. But even the proposed patent reform bill being considered by Congress in the U.S. isn’t really going to change that situation very much.

    So that situation forces companies who want to protect their intellectual property to file as many patent applications as they can, and, with larger firms, having a team of lawyers on staff to protect their rights. Whether Apple or some other company is overeager to file those complaints is up to the courts to decide, and one hopes they will not just follow the law, but exercise a modicum of common sense in their rulings — although I realize that laws do not necessarily follow common sense.

    The biggest defense against Apple is that these companies independently developed their technologies and products, and didn’t copy Apple. Maybe. But if you look at the product timelines of smartphones before and after the iPhone hit the streets, you’ll see a curious change. Where once they all seemed to follow the BlackBerry mold with tiny physical keyboards, after the iPhone became hugely popular, suddenly they began to sport touchscreens and shapes that, unless you looked real close, seemed to closely resemble the iPhone. I’m not saying Apple’s patents prevent other companies from cribbing those design influences, but that’s what’s clearly happened.

    At the same time, if you look at designs for tablet-based computers prior to the iPad, you’ll find many had only passing resemblance, mostly possessing small screens and relatively compact form factors. Once the iPad appeared, all those tablets using the Android OS, WebOS, and so forth and so on, seemed cut from the same iPad cloth. Again, I don’t know if those manufacturers have the legal right to do this, but that’s what clearly happened.

    Here’s another example: Shortly after the first Bondi Blue iMac appeared in August of 1998, other companies began to build their own all-in-one computers with pear-shaped exteriors sporting bright plastics. Some used similar colors, and I do recall (and I’m taking this from memory) Apple stopping some of these competitors from building their iMac clones.

    You can go back to the very first versions of Windows, which were barely unusable, and still observe telling resemblances to the Mac OS, although in a clunkier, less refined fashion. Apple attempted to sue Microsoft in those days for these alleged offenses, but failed largely because Bill Gates was able to license portions of the Mac interface from Apple CEO John Scully, certainly a very stupid move.

    Years later, when Gates and Jobs essentially shook hands during a keynote address, via satellite, and declared the OS wars over, they cross-licensed patents, and made other agreements that meant, in fact, that Apple and Microsoft wouldn’t sue each other. Indeed, Apple and Microsoft, though fierce rivals in some ways, continue to work together in areas that are mutually profitable. So you still have Office for the Mac, and the Bing search engine is available as an option in Safari for Mac OS X and the iOS.

    When Apple helped stake the purchase of thousands of Nortel telecom patents for billions of dollars, the deal included Microsoft, RIM and other companies. They will all play well together when it is strategically useful to do so. Indeed, the iPhone trademark was actually owned by Cisco, who happily accepted a check from Apple to allow them to use the name. It’s not as if Cisco intends to build an iPhone clone.

    Of course, this doesn’t mean that Apple isn’t heavily influenced by the designs pioneered by other companies, although those influences might require a little research to nail down. Certainly the ability to resize a document window in Lion from all sides is very close to the way you do it in Windows. Don’t forget the Window menu, and the Help menu; the latter used to be a balloon icon in the old days.

    At the same time, Microsoft is evidently adding monochrome icons for Windows 8, similar to what you see in Lion for better or worse. Mac users will have a laugh at Microsoft’s expense. Apple executives might also chuckle about it in public and all, but the two companies will continue to cooperate where it’s appropriate.

    Those who care to research such things in more detail can produce a long list of operating system and third-party utilities that have inspired Apple to incorporate certain features in Mac OS X. But that sort of inspiration evidently seldom rises to the level of patent infringement, for otherwise you’d see Apple engaged in many more lawsuits.

    In an ideal world, I suppose patents will only be granted for real innovations, not just for taking some common sense ideas and entering them in a patent application. But this is certainly not the sort of change you can expect or believe in. So the lawsuits will continue.



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    6 Responses to “Copying the Look and the Feel”

    1. DaveD says:

      Gene,

      “Here’s another example: Shortly after the first Bondi Blue iMac appeared in August of 1998, other companies began to build their own all-in-one computers with pear-shaped exteriors sporting bright plastics. Some used similar colors, and I do recall (and I’m taking this from memory) Apple stopping some of these competitors from building their iMac clones.”

      You are correct.

      http://news.cnet.com/Apple-wins-round-in-iMac-knockoff-suit/2100-1001_3-232617.html?tag=mncol

      http://news.cnet.com/Apple-settles-suits-over-iMac-knockoffs/2100-1040_3-237717.html

    2. Karl says:

      “In an ideal world, I suppose patents will only be granted for real innovations, not just for taking some common sense ideas and entering them in a patent application.”

      There is the problem… who decides if it’s a real innovation or just a common sense idea? When filing for patents how would one decide if it’s “real innovation”? Before the iPhone, as you state, smartphones had a physical keyboard and were shaped differently. So Apple should win all lawsuits in this regard.

      But what about timing? What happens after the idea catches on? Is it just common sense then? Now that the iPhone is successful the virtual keyboard and the shape are common. How does one determine if one is copying another?

      • @Karl, Obviously, the patent office today is overworked, probably without enough time to really examine applications beyond the cursory level. Perhaps advisory boards of industry professionals might serve as a guidepost for considering patents with broad implications.

        Peace,
        Gene

        • Karl says:

          @Gene Steinberg,
          I don’t know the status of the patent office so I can’t comment with any real authority how busy they are. Are they overworked or is the problem that “real innovation” and “common sense” are moving targets and are subject to companies to take advantage when dealing with the Patent Office?

          I apologize for putting you on the spot, but when people make comments like you did, I always wonder who decides if it’s real innovation. Right now it’s the Patent Office and it would seem that the burden of proof should fall on the company who is filing the patent to prove to the Office if it’s “idea” is truly real innovation.

          I don’t know if an advisory board of industry professionals works. Seems like that would open up a lot of issues with not granting patents due to competition or even stealing.

          But with that said, the timing issue is another loophole. When does a “real innovation” become a common sense thing? A person could go crazy thinking about this stuff… I guess that’s why companies go to court.

          • John Daly says:

            @Karl,
            It used to be simple: in the 19th century, if you wanted to patent something at the US Patent Office, you were required to demonstrate it. If you couldn’t build the product, you couldn’t patent the product.

            This would at least solve the problem of companies that make money simply by having a patent on an idea, and then suing the company that actually builds that idea.

    3. Jim says:

      It’s a truism in the business world that if you do not vigorously defend your intellectual property, you will lose it. So, we know what Apple is doing. All the countersuits by HTC and Samsung and others, frankly, ring false, however. I’m not saying they can’t and haven’t innovated in some ways, but let’s face it, the phones and tablets coming out of these companies are knock-offs of the iPhone and iPad in too many respects to be coincidental or innocent. Having said all this, I’m beyond tired of all the lawsuits that are being filed on all sides. I really like the notion that you have to build the product before you could patent it. This would still leave Apple in the lead on so many levels, and would negate the patent troll lawsuits that are so common these days.

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