One of the many horrors of a thermonuclear war is the collateral damage—innocents are harmed and the geography is destroyed for millennia. The problem with declaring a “thermonuclear war” in court is the collateral damage done to critical thinking and public policy. As was disclosed by Walter Isaacson in his book, Steve Jobs was so incensed by Google’s Android operating system, claiming that it was stolen, that he stated, “I’m willing to go to thermonuclear war on this.”
How does that thinking translate to a court case? In the current lawsuit by Apple against Samsung (a proxy fight that Apple brought to fight against Google’s Android), which is to reach conclusion very soon, Apple has alleged that Samsung has unlawfully copied the design and software of the iPad and iPhone.
The fundamental question on the issue of design is whether Samsung, in producing its product, illegally “copied” the design of the iPhone, or in other words, did Samsung copy the iPhone’s ornamentation rather than its function. At its heart the fundamental problem is taking elements of innovation that really do not belong in patent and trying to patent them. Not everything can or should be patentable.
Copying a function—that is, being inspired by the functional needs of the marketplace—must be acceptable. Such benchmarking is of value in the market in delivering products that consumers actually want.
Imagine if it were otherwise—a marketplace filled with non-functional devices, or more accurately, a lack of a market at all as new products would be ill suited for the modern user. Take a look around a desk, a house, a car, or nearly any mobile computing device. How many sharp edges are found? Why not more sharp edges? Because functionally sharp edges are a problem as they tear clothes, cut skin and are easily broken. Yet, it is the accusation that Samsung somehow stole the idea of rounded corners that is part of the declared war on Samsung.
Rethinking the appropriate breadth of design patents and placing greater emphasis on the desirability of benchmarking might be a tough pill to swallow for some, but at least it is not a sharp edged pill.
August 23, 2012