Apple vs Samsung

27 Aug 2012

So, the verdict is in in the Apple vs Samsung case1, and it’s pretty much all in Apple’s favour. Others have extensively covered both the verdict and the case itself, so I’m not going to reiterate the details. However, I thought it worthwhile to get down my own views on the result in a form that allows more nuance that Twitter. Broadly speaking, the verdict seems correct given the current (US) law2, but raises the question of whether those are the laws we3 want.

Apple’s claims fall into two broad categories; design and trade dress issues, and utility patents. In the first case, I’d say Apple has Samsung bang to rights. Anybody with eyes can see that The Samsung models in question look uncannily like the iPhone, more than they look like other Android phones or previous Samsung models. A friend at work has the Samsung Galaxy Ace, and in many respects it looks more like an iPhone 3G than my iPhone 4 does. A key argument made by Samsung is that this is the only sensible way to design a touchscreen phone, but that’s transparently nonsense. Consider, for example, the HTC Hero, a popular and well-regarded Android phone that could in no way be mistaken for an iPhone. Even Samsung’s more recent models, such as the Galaxy S3, differ enough that they’re unlikely to be considered copies (this is not, I imagine, a coincidence).

Some people have looked at the list of design elements claimed by Apple, and interpreted them as trying to claim a monopoly on general concepts like “black rectangles” and “coloured icons”. This would, of course, be ludicrous, but fortunately it isn’t even remotely true. The features aren’t consider in isolation; a design only infringes if it duplicates all or most of them, and as a result looks substantially like the original. You’re fine to use a black rectangle, or a grid of icons, or a dock, but if you (as Samsung did) use a black rectangle and a grid of icons and a dock and many of the other features listed in the patent, expect a call from Apple’s legal department.

So, assuming that Samsung did indeed substantially copy Apple’s designs (and packaging, and adverts, and retail stores), the next question is: should doing so be illegal? I’d argue that it should. While it seems unlikely that many people would actually buy a Samsung device in the mistake belief that it was an Apple one4, aping the design is essentially giving out the message that the two products are interchangeable, nullifying the advantage of the considerable design effort that Apple has put in. If the law permits this, then how would a profit-minded company (which Apple undoubtedly is) justify spending any money on design? As someone who likes well-designed products, I think it’s entirely proper to prohibit this kind of wholesale mimicry.

This leads us neatly on to the utility patents. Without going in to details, I think the evidence presented established that the Apple patents were both valid and infringed. The more interesting question is, should the kind of features in question (such as the bounce-back behaviour when you scroll to the end of a list) be patentable at all? The important thing to note is that they’re fairly simple, in that once a competent software engineer had seen the feature in action they’d be able to reproduce it without too much difficulty, but not obvious, in that that same software engineer wouldn’t come up with that solution when presented with the same problem.

On the one hand, you could make the same argument about encouraging innovation that I made in relation to design patents above. Why would a company go to the effort and expense of developing the feature if their competitors can immediately duplicate it and rob them of any advantage? However, the case is more nuanced with utility patents.

Firstly, while there are plenty of constraints in visual and industrial design, it seems to me that the constraints on useful features are far more specific (for example, how do we indicate that the user has reached the end of the list?). This means that genuine independent discovery is more likely. To put it another way, it seems far more likely to me that two programmers, working independently, would come up with bounce-back scrolling, than two designers would come up with phones that look as similar as the iPhone 3G and the Galaxy Ace. However, patent law doesn’t allow for this; you can violate a patent without ever having seen it, or the thing to which it pertains. Secondly, useful inventions build on previous work more than designs. In restricting straight copying, you’re also preventing others from taking the idea and improving upon it.

On balance, it seems to me that the world gains more if we allow this kind incremental improvement, than if we allow a monopoly on such inventions. Inventors still have the advantage of being first to market, and they can still compete on the quality of their implementation; I’d say that this provides sufficient incentive to ensure that innovation doesn’t grind to a halt. Hence, while I think the jury came to the correct conclusion with regard to the law as it stands, I don’t agree that utility patents5 necessarily achieve their intended purpose of encouraging innovation.

Finally, a word about Samsung’s counterclaim, in particular the utility patents essential to 3G radio. Out of the whole verdict, the rejection of this claim is perhaps the most important part. While the patents themselves are (to the best of my knowledge) perfectly valid, there are two reasons that this claim should be - and was - rejected. Firstly, the functionality in question was implemented wholly within Intel baseband chips, and Intel had already licensed the patents for those chips. In other words, Samsung had already had one fee for these patents , and were trying to extract another.

Secondly, and more importantly, when these patents were incorporated into the 3G standard, Samsung agreed to license them on fair, reasonable and non-discriminatory (FRAND) terms. The terms which Samsung offered to Apple in no way met this definition. If Samsung had won this one, it would have set an extremely dangerous precedent; companies could get their patents into standards, wait for them to become widely adopted, and then go after everyone using the standard for exorbitant licence fees. This sort of bait-and-switch would allow patent holders to skim money from the technology on an ongoing basis without contributing anything further to it. This kind of perverse incentive would put a brake on genuine innovation, and I’m heartily glad that it has been rejected by the court.

Phew. That was longer than I originally intended. If you’ve any comments, or have spotted any factual errors, I’d love to hear from you.

  1. Surprisingly quickly, given the complexity if the case; there’s been some suggestion that the jury might have rushed, and got some details wrong in the process. I don’t think it’s going out on a limb to suggest at this fact may feature in Samsung’s inevitable appeal. [back]

  2. I am not, it’s worth pointing out, a lawyer. [back]

  3. I say “we”, but of course I’m in the UK and therefore not under the jurisdiction of US law6. However, IP laws by their nature are somewhat international, so examining them in one jurisdiction can be informative for others. [back]

  4. Apple made the claim that this was happening in substantial numbers with the iPad and the Galaxy 10.1, but their evidence wasn’t strong. [back]

  5. For software, in any case; there are other fields, such as [back]

  6. Unless I’m extradited on some flimsy pretext, but what are the odds of that? [back]

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