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Comment by Retric | Hacker News Reader

<devils advocate > A faked teck demo's basically count as fiction which does not count as prior art for a normal patent case, but it does for a design patent. Unfortunately for Samsung while elements of the iPad design shows up the Galaxy pad is a lot closer to the iPad than any of the other designs. For design patents to be meaningful they must prevent such overt imitation and force competitors to do more than copy good design.</devils advocate>

Realistically, I suspect Apple would drop the case if they did not think the minimal costs of perusing it was not worth it and their return is not limited to this case. What I think most people miss is by taking it to this level the force other companies to consider how much close they can get before Apple makes an example of them.

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Agreed - if Samsung cloned this grey, bulbous plastic tablet along with its screen printed label, I don't think Apple would care at all. It's the fact that they're copying the exact combination of flat glass front, curved metal back, black plastic buttons, visible camera, etc. etc. that they think is a problem.

There's no prior art for an industrial design like the iPhone 4 or the iPad, and other manufacturers than Samsung, e.g. Motorola, HTC & Nokia, seem to have no problem creating alternative designs.

It's easy to mistake Samsung phones and tablets in public for their Apple equivalents, and that's what Apple thinks is wrong.

Whether we think outright cloning of designs should be wrong or right is a separate question from judging whether or not that's what Samsung are doing.

I think you need to take into context the difference in 20 years here. Back then there was no concept of digital photography or gps or bluetooth, etc.

As technology evolves, then many of those improvements naturally contribute to enhancements in other products. I believe that if a small, commercially viable camera existed at the time that video was made, it would have been featured.

You can't say that the features/technology that we have taken for granted for the past 10 years are not natural upgrades all existing products in this category.

In other words, I think the details you mentioned are trivial. The overall concept is pretty much the same, with some varying details.

If I hadn't mentioned a camera it wouldn't have changed my point at all.

What this tablet (and the non-clone tablets) actually show is that there is no need for Samsung to have copied Apple's trade dress of not using a bezel, having an all glass front, an aluminum back, black buttons etc.

If, as you concede the details are trivial, then Samsung should be able to easily vary them and produce a tablet that doesn't look like a cloned iPad.

> not using a bezel

The black (or white) border around the iPad screen is effectively a bezel.

> having an all glass front

The all-glass front is neither unique to Apple nor truly optional. Edge-to-edge touch capability requires that the glass extend far enough past the edge of the screen to allow touch gestures to work across the full screen. A "bump" going from the screen to the bezel makes it nearly impossible to effectively touch at the edges.

If you extend the glass past the screen but then also introduce a "bump" to transition to plastic or some other material, you either make the device bulkier, make it uncomfortable to hold, or both.

> an aluminum back

Meh. This a functional element, because it dissipates heat better. But it is optional. However, it hardly constitutes a clone by itself.

> black buttons

The buttons on the tab are completely different, in that there are multiple and also in that they are just capacitive buttons. The color of the buttons in both Apple's and Samsung's designs are chosen to match the bezel. Note that Apple does not put a black button on the white iPad, because it would look stupid. Even the original Kindle had color-matched buttons (ugly as it was).

Do you believe that design patents in general should never hold?

I think in general design patents are somewhat redundant with copyright and trademark law. They might be reasonable in some cases, but not this one.

I don't think that a design patent (or copyright or trademark) covering essential functionality is acceptable. Have you ever looked at the actual design patent that Apple filed?

http://www.google.com/patents?id=6BsWAAAAEBAJ&printsec=a...

It looks about as much like an iPad as it does the Knight Ridder concept, or the tablet from 2001: A Space Odyssey, because Apple's patent is generic. The patent covers the very concept of a tablet (for which there is plenty of prior art), and none of the "trade dress" you mentioned except the edge-to-edge glass, which was not an idea unique to Apple.

The patent that Apple has been citing in support of its claims does not even cover the features they claim to have patented, and I frankly don't understand why the courts haven't recognized that and told them that they have, at best, a copyright claim and not a patent claim.

If that is indeed all they are trying to apply, then I agree with you.

I was under the impression that they were also going after details of the trade dress which I think it is obvious that Samsung is copying in various products.

It's my understanding that the patent is what Apple's been arguing. I've been getting most of my info about these suits via various news outlets, though, so I might be misinformed.

You also seem to be implying that nothing that actually results in an improvement should be patentable.

Thanks that are legitimate improvements in functionality are covered by normal patents. Design patents cover ornamental design.

"Thanks" => "Things"

"Unfortunately for Samsung while elements of the iPad design shows up the Galaxy pad is a lot closer to the iPad than any of the other designs. For design patents to be meaningful they must prevent such overt imitation and force competitors to do more than copy good design."

I don't think that would matter if the design it self is generic - not an innovation (as in this case) and hence the patent it self can be considered as invalid.

>A faked teck demo's basically count as fiction which does not count as prior art for a normal patent case //

At least in Europe you're wrong; I can't recall anything in USA patent law that rules out this sort of disclosure either.

The tech demo is only citable as far as the detail disclosed however. For example a patent application claiming a touchscreen tablet device with multi-touch would be novel WRT the device shown here. They do say "just touch the screen" so arguably a touchscreen is disclosed in the narrative. But they don't give any details as to how that touchscreen would work so such a disclosure wouldn't prevent a claim that included such detail.

As you suggest, most of IP cases between the large corps is apparently about posturing or "negotiation" rather than the case itself.

To me the cited video preempts the form factor entirely.

The video's version of a newspaper rendered on tablet is also rather good IMO.

> A faked teck demo's basically count as fiction which does not count as prior art for a normal patent case

Why would it not count as prior art if it demonstrates the patented method? Supposedly the original patent on the modern waterbed could not be defended because such a similar device had been described by Heinlein in SciFi books.

Generally it's a description of a function missing a lot of details that make it useful. Consider, a waterbed needs to be close to persons body temperature and not room temperature to be comfortable. So if you actually built and patented a 'modern' waterbed for sale you would patent a temperature control system + plastic bag filled with water. So a description of a comfortable bed filled with water that allowed people to float to reduce the risk of bedsores would not include such issues.

However, Heinlein was not starting from scratch, people had been building them for 60 years and he actually described a lot of the details normally left out. Temperature control, safety, leaks, water level, floor load etc. So when someone tried to patent improvements their was prior art for both waterbeds and the obvious improvements to them.

http://en.wikipedia.org/wiki/Waterbed#Heinlein_descriptions

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