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How Apple v. Samsung Was Explained To the Jury
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."
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!
I am hopping that Apple gets smacked own as hard as Oracle did in the Oracle vs Google case. A flat rectangle with a touch screen is not a patentable design. Plus Samsung had many similar prototypes in the works before the iPhone even debuted.
"Don't Panic!"
While most Slashdot readers are familiar with many of the facts of the case and the law...
Hahaha!
"I like to lick butts!" by MobileTatsu-NJG (#32700246) (Score:5, Informative)
Metamoderation already take care of this. I wish I could mod you redundant.
Wait, you mean a judge previously issued a legal ruling?
BIAS!!!
There are two types of people in the world: Those who crave closure
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
Muchas Gracias, Señor Edward Snowden !
I don't know what his bias is, but the facts are that she granted an injunction against the sale of Samsung phones on the basis of a few very weak patents. The strongest of which, apparently, was a search function that could search both the local phone and the internet at the same time.
I am not optimistic about this case.
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.
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 are direct competitors in the tablet space and "design mattered more to customers in making tablet purchases," Apple would be irreparably harmed by further 10.1 sales. Those two factors outweighed any hardship suffered by Samsung, and thus, the Galaxy Tab 10.1 was stricken from US shelves."
- http://www.engadget.com/2012/06/26/judge-koh-stops-us-sales-of-galaxy-tab-10-1-puts-a-smack-down-o/
Any legal arguments you have against that? Note legal, not made up shit.
There are two types of people in the world: Those who crave closure
A time comes for every electronic device where the basic form factor becomes obvious. Let me tell you that I was using pure touchscreen devices with rounded corners long before Apple came out with the iPhone. Apple was the only company dickish enough to patent the designs the industry was already converging on. For that they should be sanctioned.
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.
If you have any technical nous at all, read tech sites or news paper reports, you can't be a juror on a case that requires the jury to understand tech stuff, really for this sort of case the law needs changing as it does for fraud cases which last years and the jury really don't have a clue. These tech lawsuits are getting out of hand, I believe judges can declare platiffs to be in contempt of court and bar them from further prosections.
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
Wooden round cornered picture frames
aluminum picture frame, chinese
For reference, here is what the iPad looks like.
complimentary iPad image
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.
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.
There are two types of people in the world: Those who crave closure
It's amazing how deep you're encased in Apple's lies to the extent that you can't even believe that there were other similar phones before. Tut tut.
They basically looked at a cheap plastic picture frame, and copied it.
And with this, your argument about design patents is over.
There are two types of people in the world: Those who crave closure
I would grant a design patent to the guy which invented the cantilever chair. Not for this plastic rectangle.
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 smooth on top, not unlike the idevice design. Putting a digital image display inside such a factor would look very much like an ipad, because an ipad looks like a plastic picture frame.
Apple is claiming to have invented this form factor, that it is new and novel, and that it warrants patent protection and international enforcement.
The existence of prior art for the design in the form of inexpensive picture frames does not give credibility to that claim.
Also, your rebuttle is a logical fallacy. Just thought you should now.
(Specifically, an "appeal to authority" type one.)
Of course, none of those things you cited are 'electronic devices', which are what the patent claims.
There were? What touch based OS did they run?
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?
" 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 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
It has nothing to do with any "implication" of whether or not Judge Lucy Koh is "BIAS" or not
It has everything to do with the perception of fairness
Muchas Gracias, Señor Edward Snowden !
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.
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.
Non impediti ratione cogitationus.
A simple google image search for "digital picture frame rounded corners" yeilded this product on page one.
oh look. A digital picture frame.
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 results.
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
Muchas Gracias, Señor Edward Snowden !
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 incorporate that style, which is surprisingly popular for "ultramodern" and "utilitarian" themed apartments and interior decorating themes.
Apple has merely incorporated those design elements into yet another product that makes use of it.
They do not have any more right to claim it as new, novel, and deserving of protection than does any of the manufacturers of the exhibited products, because it is none of those things, the original implementer of the design is anonymous, and the theme is considered generic.
You might even get hits for similar products with the search string "generic utilitarian theme frame".
I meant "keyboardless" devices with a large screen taking up almost all real estate. My first one was a Palm, my second ran Windows CE and the third was an HTC OS. This lawsuit is about form factor not "finger touch" technology. And there were plenty of similar form factors before.Just because the iPhone was very popular doesn't mean they invented the form factor.
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
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?
My Palm OS device preferred stylus, but could work (badly) with finger touch as well. Resistive touch screens.
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?
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 they're being jerks. Nearly everyone else has no ideas and that's worse. At least apple is bringing something new to the table.
Non impediti ratione cogitationus.
Also the same judge who found Apple and a bunch of other companies to be guilty of engaging in non-poaching deals.
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:
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
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.
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 objects. It will look like it belongs. Ultramodern and utilitarian are decorating themes commonly used in dense urban apartments, due to the sleek appearance and inexpensive pricetag. It caters to their target demographic. Denying samsung the right to also use this aesthetic style in their devices is not appropriate.
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.
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.
There are two types of people in the world: Those who crave closure
http://en.wikipedia.org/wiki/Bias#In_judgment_and_decision_making
Seriously, you're wrong.
Shut the fuck up.
There are two types of people in the world: Those who crave closure
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?
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
Muchas Gracias, Señor Edward Snowden !
Except you have to take all design patents into account at the same time, not individually.
Confusing a product with another, counterfiet product is a trade dress violation, and is completely unrelated to design patent protection.
That would be confusing "arachnaboy" for spiderman, because it's an action figure, dressed in red and blue, with spiderweb motifs, in a blue and red blister pack. The product clearly tries to confuse the buyer into thinking it is the same, and stomps on intellectual property.
The samsung galaxy tablet does not claim to be an ipad. It is visually different from an ipad. If it were packaged in a similar box, it would be a trade dress violation, but it is not a counterfiet ipad. It is a fully competing product that appeals to the same aesthetic design class.
A patent is for a radically new aesthetic choice.
Eg: "ultramodern", "utilitarian", and "apple".
Where "apple" is clearly distinct from the first two, and defines the aesthetic character of a unique and special product like no other.
The problem is that "apple" is not an interior design category, and the design of apple's devices fits squarely within the first two, right along with brightly colored ergonomic chairs, white carpets on smooth wood floors, and abstract minimalist prints in rounded cornered black frames on the walls. That is because the aesthetic character of the device was tailored to that specific market.
Was it an avante guard choice? Certainly.
Was it novel and new? No.
Was it effective marketing? Clearly.
The issue here is if we want to permit apple to have a monopoly on that aesthetic choice, or if we want more selection. As a consumer, I favor selection.
Ever heard of anyone who bought a picture frame thinking it was a tablet, or bought a tablet thinking it was a picture frame? Who are these lay people you're talking about?
I guess you can add "ad hominem" to your list of used logical fallacies.
Do you have a specific counter argument that is not also a verbal slur to bring to the table, or is this debate over?
Samsung's lawyers don't think so...
I guess that's exactly the point. People who are ignorant regarding a particular subject are less likely to show bias.
People who are ignorant regarding a particular subject would also be less likely to show good judgement. In the end, rather than judge the case based on its merits, which they don't have the capacity to understand, they might instead judge based on the bias they form due to the lawyers' charms & good looks, or the lawyers' eloquence & wit, or their skills with powerpoint presentations.
Dropbox drops it like it's hot.
Participating in the same argument from multiple accounts is dishonest.
I guess you can add "ad hominem" to your list of used logical fallacies.
Do you have a specific counter argument that is not also a verbal slur to bring to the table, or is this debate over?
AFAIAC, this debate is over
There is no point of continue this discussion when they keep on putting words in my mouth, and when I pointed out the obvious to them, they came back with stuffs like "implied", "interpret", "inferred", and when I pointed to them that there was no such thing in what I had said, they retort in every which way they can, including the use of verbal diarrhea
It's a waste of time trying to make sense to those whose neural cells can't function properly
Muchas Gracias, Señor Edward Snowden !
Uhm? Ok?
I replied to natasrevol, not to you...
He outright called me an idiot, with the intent that my being one negated any value to my argument concerning the picture frame connection. I called him on it.
If I somehow replied to the wrong post, you have my sinscere apologies.
Here you are HP iPAQ 6315 Pocket PC Phone: http://pocketnow.com/review/hp-ipaq-h6315-pocket-pc-phone-edition
99% touchscreen - with both stylus and fingers.
Rectangular with very slightly curved edges, with external antenna (as around that time, they hadn't figured out a way to incorporate the big-ass antenna into the phone, although this was somewhat rectified by the time HP iPAQ rz1715 came out).
I owned it - from sometime 2004 to sometime in 2005.
Based on this, I would say there's prior art for two things - touchscreen phones with rectangular shape with slightly rounded corners, and the "i" in front of a device name.
Bias towards what? Common sense?
-- no sig today
Yes, it's the same judge. That might have something to do with the fact that THIS IS THE SAME CASE.
I haven't seen a more inane comment in quite awhile reach +5 Informative.
And considering she's ruled against Apple in other major cases, I'd say she's doing a decent job so far.
It does not make sense!
intellectual property law is philosophically incoherent. it is your moral duty to ignore it or sabotage it
a search function that could search both the local phone and the internet at the same time
Wasn't the Plan 9 filesystem protocol basically doing that ages ago? ISTR that local and remote resources were treated the same, so any kind of search function run on it would effectively be searching the local device and the network...
Windows? That's not touch based. This is nothing at all like an iPhone.
You don't think a touch based shell is slightly. . .inferior? There's a reason they don't sell phones like that today.
Does this mean that:
a) Parts of the design that have function cannot be legitimately included in a design patent (perhaps arguably everything on an iPhone!)?
b) Parts of the design may have both functional and non-functional aspects but only the non-functional aspect is protected (for example if you had a round purple button in a certain place, other people couldn't put something round and purple in the same place regardless of whether it functioned as a button).
c) Something else?
Boffoonery - downloadable Comedy Benefit for Bletchley Park
The iMac was released in 1998, so a phone from 2004 isn't prior art. These type of devices never took off because they were hacked together and ran an OS that was designed for a mouse. And the design looks nothing like an iPhone.
Why?
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
Errm, no it was this very case (11-CV-01846-LHK). Way to misunderstand how the legal system works you criticize.
I don't understand how google doesn't have prior art on this. Anybody remembers google personal search or whatever it was called ? An executable for Windows that sorted through all your files, with a web interface, and that displayed results both from your computer and from the web.
Non-Linux Penguins ?
Interestingly enough Samsung did actually produce a very iDevice-like photo frame before the iPhone was even announced, let along the iPad: http://www.androidauthority.com/behold-samsungs-ipad-made-in-2006-21278/
const int one = 65536; (Silvermoon, Texture.cs)
SJW, n: "Someone I don't like, and by the way I'm a fuckwit" - AC
He was trying to demonstrate that the design concepts came from real objects, which have been around basically forever (thousands of years).
The very word "tablet" shows where the design idea came from: actual tablets.
As for the "framing" effect caused by the plastic around the screen of the tablet, he showed how plastic ... frames have the same exact form factor.
If Apple can copy the form factor of plastic frames, why can't Samsung?
I'm not a lawyer, but I play one on the Internet. Blog
What point are you trying to make with all this talk of fairness and previous rulings, if not a possible bias? You didn't need to say the actual word, it was obvious what you were implying.
Does it not make sense to use a judge who knows the situation quite well? I've seen that done in other high profile cases without anyone complaining..
I don't really have an opinion either way, as I haven't been following the case, but you seem to be in quite the trolling mood today!
which is totally what she said
When you question fairness (impartiality), you imply the possibility of the existence of bias (partiality). Failing to understand this (as you have already demonstrated to be incapable of) means you are a retard. Verbal abuse should play no role in the outcome of a logical debate; if you're letting that dissuade you, then you are unfit for such a debate. Please keep up and leave the bullshit at the door, I'm not done with you het.
The designs covers a electronic appliances explicitly. That's already been mentioned 3 times.
Great point, hadn't considered this before; this should be added to the Master List of Apple Sucks.
I'm not a lawyer, but I play one on the Internet. Blog
Because there already was a product in the market with that appearance. Pretty simple, really. And I'm not saying I agree with the deduction that led you to this conclusion, only that even if the patents are found to be invalid, Samsung is still infringing, so your argument is moot.
That was called Google Desktop Search.
I'm not a lawyer, but I play one on the Internet. Blog
There is a difference between design and utility patents.
Utility are articles of manufacture, apparatuses, processes, methods, computer readable mediums.
Designs, are, well, designs.
Bring back the old version of slashdot.
Inferior to the iPhone, of course. There were touch screens before the iPhone, but everyone hated them and they were a hassle to use. That's why so many said "I could never use an on-screen keyboard" when the iPhone came out. My, how the times have changed. Now I hear that it was an "inevitable" design and that the industry was already "converging" on the design. In 2007, everyone was telling me the iPhone was a poor design that would never take off because it lacked a physical keyboard. Now, everyone seems to think it's a common sense design and, in fact, there's no other way to build a phone!
It was stylus based. And I was doing everything with it that I use a modern smartphone for. Certainly more than is possible with an iPhone given the locked down nature of iOS.
We are talking about design patents. The only thing that matters in a design patent is how something looks. There is no patent for 'rounded corners' or even 'flat rectangle with rounded corners'. That picture frame looks NOTHING like the patent (D554809) describes.
Ways in which it is different:
The front is not flat (the 'metal' frame is clearly raised off the glass)
The back is not flat (the description says the frame is 2.55cm thick, clearly the glass edges are not)
The edges of the back are not curved
There are no power or data connectors on the edges (they must be in the back)
An iPad does not stand up by itself
Because I read at -1 with expanded comments and Slashdot imposes a nesting cap that makes it extremely hard to figure out who is replying to what after a certain point. That cap is also the reason why I usually quote everything here.
http://www.osnews.com/img/26230/s-comp.PNG
That's nice, but it doesn't refute my claim at all.
If you can show that there's ACTUAL value to your statement that plastic picture frames are prior art to a DESIGN patent for the iPhone, I'll retract my statement calling you an idiot. But given that you made that statement, I'm pretty sure you have no idea what design or a design patent actually is.
There are two types of people in the world: Those who crave closure
Your claim was that it wasn't like an iPhone. I just showed you it was not only like an iPhone, but better in many ways.
Keep in mind that the current lawsuit is about "form factor" and not touch based devices. So your point is moot. Start talking about rounded rectangles instead and we can go from there.
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.
Seriously, you're being an ass.
People who say "sheeple" have about as much sophistication as an AOL user, and in fact are probably actually AOL users.
Then clearly you do not understand the function of a design patent. That's fairly typical for slashdot users, though, who all think they are legal experts.
People who say "sheeple" have about as much sophistication as an AOL user, and in fact are probably actually AOL users.
I would argue that apple's design patent is invalid.
Here is why, and it has nothing to do with opinion of apple:
Further proof that slashdot users are completely incapable of understanding patents. Which is odd, considering that slashdot users aren't actually stupid.
People who say "sheeple" have about as much sophistication as an AOL user, and in fact are probably actually AOL users.
Do try to read the whole post.
I read the whole post. And despite the fact that I am not a lawyer, I know enough about patents to know that you do not. Despite Samsung's proclamations that this case is about a rectangle, it is not. Design patents are quite a bit more specific than that. Further, Apple is not claiming to have "invented the rectangle" (as you assert) because that's not what design patents do.
Basically, you've bought into Samsung's not-very-clever propaganda about this case. I'm kind of surprised that smart people fell for that, actually.
People who say "sheeple" have about as much sophistication as an AOL user, and in fact are probably actually AOL users.
I guess you can add "ad hominem" to your list of used logical fallacies.
Do you have a specific counter argument that is not also a verbal slur to bring to the table, or is this debate over?
Honestly, the argument was over when you presented logic that was completely irrelevant and showed a marked lack of understanding of what design patents do.
And that, sir, is most assuredly not an ad hominem attack. You simply do not have any idea what you're talking about.
People who say "sheeple" have about as much sophistication as an AOL user, and in fact are probably actually AOL users.
For your own sake, please do some research on what design patents do before continuing this line of attack. You are making yourself look extremely foolish by trying to point out prior art in a way that isn't actually relevant to the discussion of design patents.
People who say "sheeple" have about as much sophistication as an AOL user, and in fact are probably actually AOL users.
The iMac was released in 1998, so a phone from 2004 isn't prior art.
What does the iMac, a Desktop Computer, released in 1998 (iMac in 1998) have to do with Pocket PC Phones released in 2004? IMHO you are wrong, it is prior art.
These type of devices never took off because they were hacked together and ran an OS that was designed for a mouse.
And who cares whether the devices never took off? The fact remains that they existed well BEFORE the iPhone.
And the design looks nothing like an iPhone.
These may not look completely like an iPhone, but they were rectangular, with some curved edges (especially if you consider the fact that antenna now usually lies within the phone, not outside as used to happen then because of technology limitations for smartphones), which Apple is claiming a design patent on.
All the rounded corner, rectangular screens with a bezel on LCD monitors and laptops are prior art for the Ipad and iphone.
Who ever in the patent office that granted that patent is either being paid off or a complete moron. Look at the early tablet computers. Those laptops where the screen flipped around and folded back on to the keyboard. This gave you a touchscreen. They were clunky. They were not that fast. But those touchscreen/tablet laptops were prior art for the ipad. And those had rectangular rounded corner screens. Another example is the picture frames. These were not computers per say but a display. You could no do anything but display a bunch of your digital pictures, but those devices also predated the ipad.
Those are a few examples of prior art in the electronic field. The patent office people completely missed them. Maybe the patent office people only look for other patents not things in the world for prior art?
Please point out where Apple's patent describes anything but a rectangle.
The iPhone runs a touch based shell. It was an inevitable design, and it predated the iPhone. Hence Apple didn't invent touch based interfaces for phones with rounded rectangles. Got it?
The legal principal you are describing is called "Sweat of the Brow". The supreme court rejected that doctrine in "Feist v. Rural". (Though that was a copyright case not a patent case, the same reasoning applies.)
The answer to your question is that design patents cover articles that are "primarily ornamental", which I elaborate upon below. (Your item (b) is the closest to this. However, it is important to point out that, unless specifically stated, design patents cover all potential colorations of an article.)
An ornamental feature or design has been defined as one which was “created for the purpose of ornamenting” and cannot be the result or “merely a by-product” of functional or mechanical considerations. (In re Carletti, 328 F.2d 1020, 140 USPQ 653, 654 (CCPA 1964); Blisscraft of Hollywood v. United Plastic Co., 189 F. Supp. 333, 337, 127 USPQ 452, 454 (S.D.N.Y. 1960), aff’d, 294 F.2d 694, 131 USPQ 55 (2d Cir. 1961)) It is clear that the ornamentality of the article must be the result of a conscious act by the inventor, as 35 U.S.C. 171 requires that a patent for a design be given only to “whoever invents any new, original, and ornamental design for an article of manufacture.” Therefore, for a design to be ornamental within the requirements of 35 U.S.C. 171, it must be “created for the purpose of ornamenting.” (In re Carletti, 328 F.2d 1020, 1022, 140 USPQ 653, 654 (CCPA 1964))
To be patentable, a design must be “primarily ornamental.” “In determining whether a design is primarily functional or primarily ornamental the claimed design is viewed in its entirety, for the ultimate question is not the functional or decorative aspect of each separate feature, but the overall appearance of the article, in determining whether the claimed design is dictated by the utilitarian purpose of the article.” (L. A. Gear Inc. v. Thom McAn Shoe Co., 988 F.2d 1117, 1123, 25 USPQ2d 1913, 1917 (Fed. Cir. 1993)) The court in Norco Products, Inc. v. Mecca Development, Inc., 617 F.Supp. 1079, 1080, 227 USPQ 724, 725 (D. Conn. 1985), held that a “primarily functional invention is not patentable” as a design.
A determination of ornamentality is not a quantitative analysis based on the size of the ornamental feature or features but rather a determination based on their ornamental contribution to the design as a whole.
While ornamentality must be based on the entire design, “[i]n determining whether a design is primarily functional, the purposes of the particular elements of the design necessarily must be considered.” (Power Controls Corp. v. Hybrinetics, Inc., 806 F.2d 234, 240, 231 USPQ 774, 778 (Fed. Cir. 1986)) The court in Smith v. M & B Sales & Manufacturing, 13 USPQ2d 2002, 2004 (N. D. Cal. 1990), states that if “significant decisions about how to put it [the item] together and present it in the marketplace were informed by primarily ornamental considerations”, this information may establish the ornamentality of a design.
“However, a distinction exists between the functionality of an article or features thereof and the functionality of the particular design of such article or features thereof that perform a function.” (Avia Group International Inc. v. L. A. Gear California Inc., 853 F.2d 1557, 1563, 7 USPQ2d 1548, 1553 (Fed. Cir. 1988)) The distinction must be maintained between the ornamental design and the article in which the design is embodied. The design for the article cannot be assumed to lack ornamentality merely because the article of manufacture would seem to be primarily functional.
Thank you for taking the time to answer so thoroughly, it is much appreciated and much clearer to me now.
Boffoonery - downloadable Comedy Benefit for Bletchley Park
I have seen you post repeatedly on this, claiming that a design patent requires specific type of prior art, of a specific subclass in order to be invalidated. This is simply false.
From the USPTO.
35 U.S.C. 172 Right of priority. The right of priority provided for by subsections (a) through (d) of section 119 of this title and the time specified in section 102(d) shall be six months in the case of designs. The right of priority provided for by section 119(e) of this title shall not apply to designs. The standard for determining novelty under 35 U.S.C. 102 was set forth by the court in In re Bartlett, 300 F.2d 942, 133 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.2d at 943, 133 USPQ at 205 (quoting Shoemaker, PatentsFor Designs, page 76). In design patent applications, the factual inquiry in determining anticipation over a prior art reference is the sameas in utility patent applications. That is, the reference "must be identical in all material respects." Hupp v. Siroflex of America Inc., 122 F.3d 1456, 43 USPQ2d 1887 (Fed. Cir. 1997). The "average observer" test does not require that the claimed design and the prior art be from analogous arts when evaluating novelty. In re Glavas, 230 F.2d 447, 450, 109 USPQ 50, 52 (CCPA 1956). Insofar as the "average observer" under 35 U.S.C. 102 is not charged with knowledge of any art, the issue of analogousness of prior art need not be raised. This distinguishes 35 U.S.C. 102 from 35 U.S.C. 103(a) which requires determination of whether the claimed design would have been obvious to "a person of ordinary skill in the art." When a claim is rejected under 35 U.S.C. 102 as being unpatentableover prior art, those features of the design which are functional and/or hidden during end use may not be relied upon to support patentability. In re Cornwall, 230 F.2d 447, 109 USPQ 57 (CCPA 1956); Jones v. Progress Ind. Inc., 119 USPQ 92 (D. R.I. 1958). Further, in a rejection of a claim under 35 U.S.C. 102, mere differences in functional considerations do not negatea finding of anticipation when determining design patentability. Black & Decker, Inc. v. Pittway Corp., 636 F.2d 1193, 231 USPQ 252 (N.D. Ill. 1986).
It is not necessary for the examiner to cite or apply prior art to show that functional and/or hidden features are old in the art as long as the examiner has properly relied on evidence to support the prima facie lack of ornamentality of these individual features. If applicant wishes to rely on functional or hidden features as a basis for patentability, the same standard for establishing ornamentality under 35 U.S.C. 171 must be applied before these features can be given any patentable weight. See MPEP Â 1504.01(c). In evaluating a statutory bar based on 35 U.S.C. 102(b), the experimental use exception to a statutory bar for public use or sale (see MPEP Â 2133.03(e)) does not usually apply for design patents. See In re Mann, 861 F.2d 1581, 8 USPQ2d 2030 (Fed. Cir. 1988). However, Tone Brothers, Inc. v. Sysco Corp., 28 F.3d 1192, 1200, 31 USPQ2d 1321, 1326 (Fed. Cir. 1994) held that "experimentation directed to functional features of a product also containing an ornamental design may negate what otherwise would be considered a public use within the meaning of section 102(b)." See MPEP Â 2133.03(e)(6). Registration of a design abroad is considered to be equivalent to patenting under 35 U.S.C. 119(a)-(d) and 35 U.S.C. 102(d), whether or not the foreign grant is published. (See Ex parte Lancaster, 151 USPQ 713 (Bd. App. 1965); Ex parte Marinissen, 155 USPQ 528 (Bd. App. 1966); Appeal No. 239-48, Decided April 30, 1965, 151 USPQ 711, (Bd. App. 1965); Ex parte Appeal decided September 3, 1968, 866 O.G. 16 (Bd. App. 1966). The basis of this practice is that if the foreign applicant has received the protection offered in the foreign country, no matter what the protection is call
What point are you trying to make with all this talk of fairness and previous rulings, if not a possible bias? You didn't need to say the actual word, it was obvious what you were implying.
I will say it: Lucy Koh gives the appearance of bias, if not outright corruption, in favor of Apple.
Have you got your LWN subscription yet?
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* other product, and which is not considered to be a derivative of other existing forms by an "average observer", which has "little or no prior knowledge of the art."
At least according to the USPTO anyway.
___
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 w 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 art reference is the sameas in utility patent applications. That is, th "must be identical in all material respects." Hupp v. Siroflex of America Inc., 122 F.3d 1456, 43 USPQ2d 188 1997). The "average observer" test does not require that the claimed design and the prior art be from analogous a evaluating novelty. In re Glavas, 230 F.2d 447, 450, 109 USPQ 50, 52 (CCPA 1956). Insofar as the "average o under 35 U.S.C. 102 is not charged with knowledge of any art, the issue of analogousness of prior art need raised. This distinguishes 35 U.S.C. 102 from 35 U.S.C. 103(a) which requires determination of whether the design would have been obvious to "a person of ordinary skill in the art."
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No, it certainly is not an ad hominem. It is merely false.
The USPTO itself weighs in, stating that prior art need not belong to "analogous items".
I have pointed this out twice now, but the third time's the charm.
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 w 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 art reference is the sameas in utility patent applications. That is, th "must be identical in all material respects." Hupp v. Siroflex of America Inc., 122 F.3d 1456, 43 USPQ2d 188 1997). The "average observer" test does not require that the claimed design and the prior art be from analogous a evaluating novelty. In re Glavas, 230 F.2d 447, 450, 109 USPQ 50, 52 (CCPA 1956). Insofar as the "average o under 35 U.S.C. 102 is not charged with knowledge of any art, the issue of analogousness of prior art need raised. This distinguishes 35 U.S.C. 102 from 35 U.S.C. 103(a) which requires determination of whether the design would have been obvious to "a person of ordinary skill in the art.
That is not how design patents work.
Please read the information freely available from the USPTO.
A device must be sufficiently novel from existing products of similar appearance (and need not be analogous in function!) That an "average observer" could not be said to conclude that the design is a derivation of existing forms.
I pointed out how there were existing forms, and how the derivation could have occured.
The number of times you state an incorrect declaration does not alter the state of its factuality. You could "point this out" millions of times, it still won't make the USPTO's requirements change to suit your opinion.
Ask and you shall receive.
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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 art reference is the sameas in utility patent applications. That is, the reference "must be identical in all material respects." Hupp v. Siroflex of America Inc., 122 F.3d 1456, 43 USPQ2d 188 1997).
The "average observer" test does not require that the claimed design and the prior art be from analogous arts whe evaluating novelty. In re Glavas, 230 F.2d 447, 450, 109 USPQ 50, 52 (CCPA 1956). Insofar as the "average observer" under 35 U.S.C. 102 is not charged with knowledge of any art, the issue of analogousness of prior art need not be raised. This distinguishes 35 U.S.C. 102 from 35 U.S.C. 103(a) which requires determination of whether the design would have been obvious to "a person of ordinary skill in the art."
You have established that you know how to quote the rules of prior art for design patents. You have not, however, demonstrated that you understand what it actually says. The assertion that Apple copied a picture frame is (and therefore the patent is invalid) is so laughable that it's really pointless to keep arguing with you. You won't understand because you refuse to.
And that's called willful ignorance.
People who say "sheeple" have about as much sophistication as an AOL user, and in fact are probably actually AOL users.
Do you even know what "bias" means? It essentially means "not being fair". So you are worried she might be biased. Nobody is putting words into your mouth by mentioning the word bias - they are simply summarising your point of view with more succinct words..
which is totally what she said
I don't see how you could say from this that a plastic picture frame is prior art for an iPhone.
Thus, you're still an idiot.
There are two types of people in the world: Those who crave closure
(Laughter)
Look, the rules clearly point out that the design patent is for the *aesthetic design*, and not for any functional part of the object. It covers ONLY THE APPEARANCE.
This has been shown, linked to, and quoted to you several times now.
The same rules say that prior art for such an appearance does *NOT* need to be analogous to the object for which the design patent is being applied for.
Those same rules openly state that to be applicable for protection, the design *MUST* be wholly original, and cannot be said to be a derivation or adaptation of *ANY PREVIOUS DESIGN*, as determined by ordinary people.
I pointed out that the design in question is a clear derivation from the design of a plethora of prior products that are more than 1 year older than the iPad and iPhone. That makes the objects prior art under the definitions supplied by the USPTO.
Now, since you insist that I am unable to understand what I am reading, despite being a native english speaker, and the not too difficult wording of the USPTO rules, PLEASE, By *all means*,
Educate me.
1) the design patent covers only the appearance of an object. No functional component or feature can be included. (Eg, it being an electronic device. That relates to function, not appearance.)
2) the appearance of an object seeking protection must not be a derivation of any other object design.
3) the type of object (analogousness) is inconsequential when making this determination, because the type of object is related to purpose, and not appearance. (See 1). This is why, in the words of the USPTO, it "need not apply."
I pointed out that the shape of the ipad and other idevices, and the design aesthetics have been in active use for decades prior to apple's used of that design in a tablet product. Plastic picture frames being a poignant example.
That I was able to read, understand, and make this determination defacto shows that I am not an idiot.
Merriam webster defines an idiot as follows:
Main Entry: idÂiÂot
Pronunciation: \Ëi-dÄ"-É(TM)t\
Function: noun
Etymology: Middle English, from Anglo-French ydiote, from Latin idiota ignorant person, from Greek idiÅtÄ"s one in a private station, layman, ignorant person, from idios one's own, private; akin to Latin suus one's own â" more at suicide
Date: 14th century
1usually offensive : a person affected with extreme mental retardation
2 : a foolish or stupid person
â" idiot adjective
And foolish, as per def #2 as:
Main Entry: foolÂish
Pronunciation: \Ëfü-lish\
Function: adjective
Date: 13th century
1 : lacking in sense, judgment, or discretion
2 a : absurd, ridiculous b : marked by a loss of composure : nonplussed
3 : insignificant, trifling
synonyms see simple
â" foolÂishÂly adverb
Given that I have not lost either my composure, used the rules for prior art incorrectly, incorrectly ascribed to design patents what is covered by trade dress and functional patents, nor resorted to petty name-calling and blatant illogical utterances, I must conclude that your assessment is in error.
Unless you can show specifically how my accusation is faulted, other than a simple "I don't agree, and you are stupid for thinking that" without any qualifications, I fail to see how I should in any way retract my statement, nor see any virtue whatsoever in your contrary verbage, given that it does not contain any form of rational argument nor contrary evidence; only subjective opinion, which is in direct contradiction with established case law, as evidenced by the supplied rules.
Since I have given you ample opportunity to demonstrate the profound intellect and store of knowledge you have been conflating yourself to posess, and have consistently failed to do so at every turn, I must conclude that you do not in fact posess such knowledge, and are simply being contrarian out of personal preference toward reality.
This falls victim to webster's definition of foolish, and hilariously enough, their definition of idiot by associsiation.
This would indicate that you are both a fool, and an idiot as well as a hipocrite, as demonstrated by your behavior and verbage.
Unless you supply a real, vettable contradictory piece of evidence to disqualify the picture frame prior art, I will ignore any further specious and unsupportable rhetoric you might muster, since you have clearly demonstrated the inferiority of your position.