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Supreme Court Weakens Design Protection Patents
werdna writes: "A recent article criticized Apple for overreaching by asserting "design protection" for the product configuration of its iMac line. Apparently the United States Supreme Court might agree with Slashdotters in an appropriate case.
In a decision handed down yesterday, Wal-Mart Stores, Inc. v. Samara Brothers, Inc., the Court held that product design, like color, cannot be inherently distinctive and obtain trademark-like protections, until it has acquired distinctiveness such that the marketplace naturally perceives the design to be a designation of product source, such as in the way that "International Business Machines" is associated with products from a company in Armonk rather than a general description for typewriters sold internationally.
Thus, absent a design patent, it has just become substantially tougher to obtain protections for industrial designs. Time will tell how important this decision will be."
I think of a VT220 whenever I see an iMac. Every time. Have you never seen one?
I used to use a VT220 with a 9600 baud modem to read Usenet at work. :-)
New XFMail home page
/bin/tcsh: Try it; you'll like it.
So which do you mean by elsehwere?
a) The Master's thesis of Jeff Raskin, one of the mac engineers?
b) the GUI of the Lisa as it existed before the visit to PARC ?
And I believe that this is the first I *ever* heard of any attempt to stop anyone else from using mice.
1) Raskin described quickdraw, among other things, in his Master's thesis before that (late 60's?)
2) The link for the early (pre-PARC) Lisa interface is
The founders never intended a "democracy". At the time, it was a dirty word, associated with mob rule. Some Whigs (or was it a last gasp of the Federalists?) called the Rebpublicans "a bunch of democrats", and the Republicans added it to their name, eventually dropping "Republican." After the Whigs died off, a new party started with Republican again.
.
Anyway, the system was designed with checks against democracy, and we've tossed some of them. Alexander Hamilton wanted the President to serve during "good behavior" (for life). THen again, he was a borderline monarchist . .
The long, overlapping terms of the Senate were a safeguard against democracy. Of perhaps more importance was that the Senate was not directly elected, but instead chosen by state legislatures, yielding another buffer. IM!HO, moving to direct election of Senators is the worst mistake in the history of the Republic.
Representative government was not chosen as an end in itself, but as the most likely way to keep our liberties secure. Had they thought our liberties would be more secure under monarchy, they would have crowned Washington (over his objections [If he'd wanted to be king, he would have been]). Since he died childless, it's hard to predict what would have happened next.
I have a very simple position on democracy: I'm against it. But I strongly support representative goverment, preferably with a layer or two of indirection. And I'll take arms against a government that comes for our liberties.
hawk, esq.
Here's my distillation of the story as drawn from last summer's reading: _Infinite Loop_ which is about Apple, and _Dealers of Lightning_ which is about PARC.
;)
In the early-mid 70's Jef Raskin started hanging out at PARC and saw the early work on their projects there (the Alto, Smalltalk, etc.)
In '77 he joined up at Apple, and in '79 Apple management had a plan for three computers: The Apple III, which would be the immediate successor to the Apple II; The Lisa, which would be so awesome as to not only dominate the microcomputer market but start making inroads into minicomputers; and Annie, which would be what we would now think of as a gaming console.
Annie was handed off to Raskin, but he counter-proposed a significant departure from traditional computing and which was basically the origin of the Macintosh. But then he ended up on the Lisa project. He took the Lisa team on a tour of PARC which strongly influenced that project to go the GUI route. This was at about the time of the Apple IPO.
But before that, Xerox was permitted to invest in the company pre-IPO, for some undefined technology among other things. This ended up being the basis for the Apple tours.
Raskin and Jobs got along like Bill Gates and the DOJ, and when Jobs started messing around with the Lisa project (Jobs is pretty certainly one of the worst bosses in history, and I'm a big Apple fan which tells you a lot!) Raskin ended up on a very isolated Macintosh team that he more or less started and tried to keep away from Jobs' negative influence.
Eventually though, Raskin set up Jobs to see PARC (which he and the Woz had both been disinterested in before), so as to give him a better idea of what he was trying to do. (hint: it wasn't much like how the Mac turned out)
Some of the people at PARC weren't dumb, and they knew that they were giving away the keys to the castle, but they had orders from up on high.
This tour even more thoroughly cemented how the Lisa would be, and as it started lurching towards failure just like the Apple III (The Lisa cost $10,000 in 1983, although it was very nice in a lot of ways) Jobs jumped ship to the Mac, and booted Raskin out.
Jobs never really understood the stuff from PARC though. This is most telling in the way that he adamantly refused to provide for networking on the Mac, eventhough networks were a staple at PARC. And how Apple almost ignored the Laser Printer and DTP until a couple of smart guys at Apple, Aldus and Adobe rammed it down their throats, incidentally saving the Mac and Apple.
So to sum up:
Xerox came up with a lot; Apple never implemented half of it; Apple did pay for it; anyway, the Alto was a significantly different sort of machine than the Mac. More like an underpowered minicomputer than an underpowered microcomputer
-- This and all my posts are in the public domain. I am a lawyer. I am not your lawyer, and this is not legal advice.
I think OshKosh B'Gosh ran into similar problems with people ripping off their designs for children's clothes when they were fashionable and in great demand.
Even though they won, I still think Wal-Mart is sleazy for blatantly ripping off Samara's designs. There is a difference between copying a design idea and sending photographs to a manufacturer with instructions to replicate the clothes. When Ford introduced the Taurus, many other car companies borrowed elements of the body design without making exact duplicates of the Taurus.
Mea navis aericumbens anguillis abundat
> Sure, democratic governments may have been an ideal that the founding fathers believed in, but that doesn?t really mean it?s a good thing.
Democracy originated in ancient Athens, and if Athens under the democracy didn't match the definition of "Evil Empire", then nothing does.
Voters can be every bit as tyrannical as tyrants of of the ordinary sort.
--
Sheesh, evil *and* a jerk. -- Jade
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"You can't shake the Devil's hand and say you're only kidding."
At some point, design, industrial or graphic or UI or whatever, becomes as distinctive as a story or movie or song. If we can protect one form of creativity, why not the other?
Does this open the (heavily extrapolated) gateways for the "legalization" of sampling in music?
What scares me about this ruling is the impact it might have against the little guy, it lessens the legal ramifications for the theft of good ideas. If a small company has something great and HUGEcorp has no legal impetus NOT to knock it off and put the little guys out of business, don't think HUGEcorp won't. The big guys would be protected by the ability of their pocketbook to raise a louder fuss. Which is almost what the ruling seems to ask them to do.
One of the ironies of great industrial design is the complete invisibility of it. If you make a perfect tool, there is no way to contain the idea behind that tool. People all over the world know the classing Honeywell round Thermostat, but who designed it?*
* Henry Dreyfuss, who also designed two of the most recognizable and iconocized telephones, and a bunch of other things you already know but might never have thought about. http://www.si.edu/ndm/exhib/hd/start.htm
This is entirely correct -- the case did not weaken or strengthen design patents at all. It is about product configuration and commercial design cases.
On the other hand, the standard for reviewing infringement of a design patent is far less "holistic" and fuzzy than that for an alleged product configuration case. To that end, the case likely had a major impact on Apple's claim.
So saith the Supreme Court. That is the message of this case.
I don't see how this decision could be used to thwart Apple's attempts to protect the iMac design and "look" by design patent.
It limits the scope of their protection to the scope of the design patent.
Correct me if I'm wrong, but when the iMac was first released, it was truly an original and unique design -- older "designer" computers (such as the Acer Aspire series) notwithstanding. When you saw translucent white-and-fruity-colored-plastic, you thought "iMac".
Agreed it is a unique design. It probably is entitled to design patent protection. But that does not give rise to trade dress protection unless and until someone sees an e-Machines machine and says, "gee, that must have come from Apple."
When the first peripherals started coming out that mimicked the iMac design, they were immediately recognizeable as having done so.
But did anyone think they were MADE by Apple? That is what is meant by distinctive for these purposes.
In fact, many (most?) of them were aggressively marketed as "for the iMac", in a blatant attempt to capitalize on the iMac's runaway success. I don't suppose Apple had any problems with these peripherals, since they indirectly promoted the iMac and its original design.
Clearly. But does that mean the design was a designation of SOURCE? That is the factual question that is now raised. It is no longer a question of inherent distinctiveness, but rather than acquired distinctiveness.
Therefore, I believe that in light of this ruling, Apple should in fairness be allowed to obtain patent protection for its design.
They either have them or they don't. Point is that the design patent for the computer probably doesn't stretch to other uses of a similarly designed, but differently shaped machine.
1. I do not necessarily agree that the ruling is "right" and that Apple really should be allowed to obtain protection for its design.
The Supreme Court is not final because it is infallible. It is, however, infallible because it is final. Correct or not, that is the law of this land, unless and until the Congress changes its views.
companies like eMachines that are blatently stealing Apple's designs... well, I think they're theives. Am I wrong?
They're as much a thief as generic clothing manufacturers and beige case makers (there was someone who originated the beige case, afterall).
Excuse me? Several sites are "copying"
www.eFax.com are spammers
--
The shareholder is always right.
Interestingly, the title of this story is at odds with its contents. It could impact Apple's case against eMachines, but only if Apple didn't have a design patent on the iMac. Unlike utility patents, which cover everything from engines to (ick) once-click shopping, design patents allow protection of the appearance or design of an object, but not its function. Ergo, a "practical" innovation like 3-point seat belts may receive a utility patent, but the distinctive shape of a VW Beetle might be covered by a design patent.
"The best way to do mathematics is to be creatively lazy." -I. M. Isaacs
A trademarked color would fall under the same restrictions as any other trademark. Dell can't use IBM blue without violating IBM's trademark, but I could open a grocery store that was painted that color because IBM isn't in that business; their trademark does not extend to food stores.
I suppose it would be up to the USPTO do determine whether two similar trademarks could exist in the field; for example, a Macrosoft has been producing software since 1987.
The difference between a color and a book is that the book falls under copyright. The trademarked color is disclosed to the government and is made public knowledge, much like a patent would be. However, any witten material automatically is protected by copyright, without the need for registration. You could feasibly publish (and take credit for) a summary or interpretation of a copyrighted work if it was in your own words, but if it was simply a copy, you would have violated the original owner's copyright. This is how the IBM PC BIOS was legally reverse-engineered and published for profit in the early 1980's.
"The best way to do mathematics is to be creatively lazy." -I. M. Isaacs
Now let's face it. Regardless of patent issues, it seems more and more retailers have simply copied Amazon.com's site in it's entirety. That somehow strikes me as unfair.
Now let's consider Apple. I'm not going to go through the sortid history of who stole what from whom but let's simply say that by the time Windows 95 came out, many of us had seen that desktop a few times before. As for the Mac cases, it's not like many of us haven't been hunting for a cool case for awhile. The only difference is that we want a floppy drive and don't want a new monitor every time we upgrade.
And let's face it. The first place that tries to copy Slashdot in a non parody form will die a horrible death.
So why this claim? Apparently the United States Supreme Court might agree with Slashdotters in an appropriate case. " Please, don't presume to speak for me.
Look is look. MTV is MTV. Mountain Dew and Jolt are a way of life, other caffine is just imitation.
And in a hype marketing world, I'm tired of cheap knock offs.
- Ken Boucher http://www.virtualsurreality.com
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No Zen is good zen
I was recently contacted by Apple Computer, Inc. over my apparent attempt to patent something that they are currently claiming the pattent on. the letter is as follows.
Mr. Rad
It has come to Apple Computer, Inc.'s attention that you have applied for a design patent for the design of one "Steaming Pile of ugly Poo." (heretofore referred to as "SPoo"). We wish to inform you Mr. Rad that, upon review of this design, we have noticed an incredible amount of similarities between "Spoo" and the iMac. Being that the iMac looks so similar to a "Steaming Pile of Ugly Poo" you may consider this a notice to cease and desist in your attempts to market/patent your "SPoo"...
The letter continues but you get the gist of it. This is a call to my fellow slashdotters. I need your help to resist big business and it's attempts to supress my patents. Please...send money! Lots of money.
-FluX
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"It is seldom that liberty of any kind is lost all at once." -David Hume
That's an interesting point. I'm not sure the companies really want to be able to lock people up that don't work as hard as they should, they just want to lock people up who threaten their control. Jon Johnson would be a pretty example.
That said, I don't think that the people running these corporations really even knows the irrevocable harm there causing, no one considered evil ever really was. Hitler and Stalin thought they were doing the right thing, both morally and ethically. Hitler thought that he was saving the human genetic pool, and Stalin; well I think Stalin was just crazy. (And forgive me for invoking Godwin's law, in no way do I think what these corps are doing, now, is anywhere near what those two had done)
But in a way, the people in these organizations are even worse, unlike Hitler and Stalin, who had a clear view of what they were doing, the corporate insiders do not. Despite what they might think, they are just cogs in a machine -- a stealthy ethereal artificial intelligence. Wintermute incarnate (though, not so obvious). The corporation is its own device, seeking its own ends. An organism with mind power of thousands of humans, but with a thought structure completely outside our understanding. Evolving, into something. And I wonder, if with computer interconnectedness becoming the norm if these organisms are becoming faster of mind (Using technology bill gates himself calls the "Digital Nervous System")
Well, I've got a lot more ideas on that (most of them are being formed right now), but I don't want to get all Jon Katz, so I'll try to get to the point. That these organism, these corporations are subverting the democratic ideal. Perhaps it was a system that might have worked for an industrial (and book educated, as opposed to an agrarian society) society, but we do not live in that society. We live in a media society. A world where our ideas, or at least the ideas of the majority, are controlled by the media conglomerates. And those media conglomerates can say whatever they want. We need a new system of government that preserves individual rights in this new pervasive-information society. Will it be some kind of democracy? Probably, maybe not. Note that the pervasive-information society is not the internet-global knowledge-utopia that many slashdot readers believe may exist, but the Media controlled Cyber worlds Envisioned by Gibson (and, in a way, Orwell). The one that IS happening. And by happening, I don't mean that 'will happen'.
Amber Yuan 2k A.D
"and dear god does this website suck now." -- CmdrTaco
People here on Slashdot are clamoring about "Colored plastic isn't new!" as if that's what the whole Apple/eMachines case were even about. Of course colored plastic isn't new, and that's now what Apple's complaining about.
Look, the iMac is certainly a unique design. It's basically impossible, having seen an iMac once, to think of anything else when you see it. And the eMachines clone looks exactly like an iMac. OK, so there's one more slot for a certain archaic, outdated storage device. But other than that they're identical, right down to the ventilation slots and handle; eMachines couldn't have been more brasen if they'd kept the Apple logo on the casing. This was clearly meant to confuse the consumer.
Look, there's nothing wrong with cool-looking cases. There's even nothing wrong with cool-looking cases made of translucent plastic. But for crying out loud, it's not that hard to come up with your own design. The iMac design is clearly identifiaed in the consumer's mind with one make and model of computer alone: the Apple iMac. Look at any popular-media depiction of a computer with that shape, and you'll find direct references to that machine (cases in point: UserFriendly's iWhack and FoxTrot's iFruity).
I'm not an Apple apologist; I don't defend them when they do stupid stuff. But I believe they're right to sue for this issue; this is even more blatant of a ripoff than Windows ever was. Microsoft at least made their stuff different enough that they weren't really stealing the Apple interface, but this is completely different.
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"You can't shake the Devil's hand and say you're only kidding."
One thing I have always found interesting is that particularly distinctive colors can be trademarked. Coincidentally, IBM Blue is trademarked, as is Tiffany's Blue. The apparent rationale for this is that certain colors are so well-known and associated with a brand, it would be inherently confusing to allow them to be used by others. What I want to know is, how do you determine when a color is confusingly similar? This seems to be very subjective.
To get back on topic a bit, it's obvious from seeing a color how to imitate it, and it's almost as easy to imitate a design once you've seen it. But isn't it also quite easy to imitate a book? I agree, you couldn't reconstruct a book from memory the way you could reconstruct a piece of clothing or a color you saw in a store, but the potential is still there. So, what's the difference between the color and the book?
Walt
Interesting spin the Wal-Mart vs. Samara case.
/innovative/ new
Hemos and many other commenters read this
decision and seem stuck on an analogy between
this case and the "Apple vs eMachines" spat.
But as I began reading Scalia's decision myself,
a different analogy kept popping into my mind.
Samara started marketing an
product, "seersucker" clothes. Along comes
the big evil corporation, Wal-Mart, which
embraces and extends the "seersucker" concept
"with only minor modifications," then uses
predatory pricing practices to effectively
undermine Samara's innovation and stealing
it for their own profiteering.
Microsoft vs. (pick-your-favorite-victim)
seems to be at least as analogous to this
case as Apple vs. eMachines.
I don't see how this decision could be used to thwart Apple's attempts to protect the iMac design and "look" by design patent.
According to the decision, product design cannot obtain protection unless it has "acquired distinctiveness such that the marketplace naturally perceives the design to be a designation of product source".
Correct me if I'm wrong, but when the iMac was first released, it was truly an original and unique design -- older "designer" computers (such as the Acer Aspire series) notwithstanding. When you saw translucent white-and-fruity-colored-plastic, you thought "iMac".
When the first peripherals started coming out that mimicked the iMac design, they were immediately recognizeable as having done so. In fact, many (most?) of them were aggressively marketed as "for the iMac", in a blatant attempt to capitalize on the iMac's runaway success. I don't suppose Apple had any problems with these peripherals, since they indirectly promoted the iMac and its original design.
When the iMac look-alike computers started coming out, Apple began to have a problem. Apple did not want its original design to be used to manufacture and market products that directly compete against Apple's own products. And I tend to agree; by this point, the design had already been established in the minds of the people as being "iMac". I believe that this satisfies the above-stated requirement that the product have "acquired distinctiveness" so that it may obtain protection.
Therefore, I believe that in light of this ruling, Apple should in fairness be allowed to obtain patent protection for its design.
Disclaimers:
begin 644
Out of all of the branches of the US government, the only one that really doesn?t seem to suck is the Supreme Court. And, I think the reason is obvious. It's not a democratic system. The justices are appointed, for life. Sure, politicians appoint them, but there is a key difference. They can do what they think is right, not what they think will get them the most votes.
Sure, democratic governments may have been an ideal that the founding fathers believed in, but that doesn?t really mean it?s a good thing. Just look at Taiwan, 4 years of democracy, and were practically at war with fucking china. Way to go guys! That said, I don't want Taiwan to be sucked into Communist china, but I don't want to be at war with them ether.
Perhaps its time to rethink the system, I don't know what to replace it with, but a review may be in order. (Perhaps electing government people for a long term, with no chance of reelection, with a special recall vote if necessary)
Look at all the stuff that's happening in the US, and the rest of the world, moving it to an Orwillian nightmare; it isn't being stopped, because most people just don't care.
Not that I have a solution or anything, but that doesn?t mean I can't complain.
Amber Yuan 2k A.D
"and dear god does this website suck now." -- CmdrTaco
Redmond (AP) -- Microsoft CEO Steve Balmer announced the company will still be enforcing its trademark on the color coloquially known as "BSOD Blue". When questioned about the recent landmark decision Wal-Mart Stores, Inc. v. Samara Brothers, Inc., Balmer said: "Microsoft firmly believes that this shade of blue, consistent with QUALITEX CO. v. JACOBSON PRODUCTS CO., has acquired 'a secondary meaning' which 'serves no other purpose' and is therefore a permissable trademark under the Lanham act. After all, what purpose could this blue serve other than to identify a computer as running Windows? Surely it is not to inform the user that his computer has crashed when crashing is implicit in the very notion of running Windows".
No immediate lawsuits have been filed, but the suspected potential respondents are believed to be undergoing puberty somewhere in Scandinavia.
"If one is really a superior person, the fact is likely to leak out without too much assistance" -- John Andrew Holmes