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Aug 252012
 

So apparently a US court with a US jury found against a Korean company and in favour of a US company. Well that is a surprise! Who would imagine?

There are several aspects of this trial that should require closer inspection before making any judgments :-

  1. The jury only spent 48 hours deliberating when the available evidence amounted to “hundreds of questions, 109 pages of jury instruction and the most complex muddle of law on the planet”. Given the mind boggling complexity of this case, I would not be at all surprised if the jury colluded in coming up with a snap judgment that at least gets them out of jury service rather than a properly considered verdict.
  2. The judge kept advising the two companies to come to a negotiated settlement but obviously Apple and Samsung ignored this.
  3. This is just one legal battle; Apple and Samsung are fighting tooth and nail in many cases: As of December 2011, Apple and Samsung are fighting more than 20 cases in 10 countries. It would seem that it would be better by far if someone were to band the respective CEOs heads together and force both companies to make a negotiated settlement.

It is easy for an observer who does not pay close attention to technical matters to consider Apple to be a radical innovator in the smartphone arena; certainly at the very least the iPhone was a game changer. But not because itself was a dramatic innovation in technological terms, but because it brought previous technical innovations together into a well designed and easy to use product. And frankly a comparatively limited one – much smartphone functionality present in the original iPhone’s competitors was missing from the original iPhone.

If you look at the list of patents that Samsung supposedly infringed, you will come across numerous examples that someone in the technical field will wonder if it should really be a patent. Or maybe at most should be a ‘half-patent’ (if there were such a thing). Some of the features that Samsung supposedly infringed :-

  1. The “rubber band” effect that occur when you scroll a list by touch and hit the end of the list. This to a limited extent falls foul of the “obviousness” test – if you had used a scroll by touch interface without the equivalent of this, you would think “Hey! Someone ought to come up with something that tells me when the end of the list is”.
  2. The gestures “pinch to zoom” and “twist to rotate”. I’m sorry but these really are too obvious to patent. Certainly “twist to rotate” is merely aping what we do in the real world to rotate – ever “twisted” a plate to rotate it so that the food you are going to dive into next is closer? And similarly “pinch to zoom” is effectively a touch-screen equivalent of dragging out a box onscreen using a mouse to zoom in on that particular area.
  3. Touch to drag a document? Ever used drag and drop with a mouse?
  4. The other elements in the list are in relation to physical design of the handset, but is a rectangle with rounded corners really so radical ? I’m pretty sure almost all of my phones have been rectangular with rounded corners since well before the original iPhone.

The trouble with this judgement is that whilst it may protect innovation to a tiny degree, it will also have the effect of limiting choice to the consumer in the US. Because Apple is going to look to ban imports of Samsung devices as soon as it can wheel a lawyer into court. Wouldn’t it be better by far for the court to decide that yes Samsung has infringed the pinch to zoom function, so they should pay for a license for that patent at a rate of 10¢ per device? Rather than insist on Apple being paid a ridiculous amount of damages and allowing Apple to set a ridiculous license cost for use of the patent.

The whole issue of intellectual property rights is a complete mess, and I’m not sure that even the judge in this case would disagree. Patents were originally developed to protect inventors from companies simply stealing their ideas and going ahead and making money whilst the inventor gets nothing. They were not designed to stop competitors from using the ideas of an inventor – they would simply have to pay a fair price for the idea. And patents were not supposed to be blindingly obvious either.

It is also worth pointing out that Apple have already lost pretty much the same legal battle in the UK, Germany, and South Korea. So we have the ridiculous situation where Samsung “stole” ideas as decided by a US jury, but also didn’t as decided by court victories elsewhere in the world. Who is right? Who knows?

Intellectual property rights are long overdue for a radical overhaul :-

  1. Make the UN the deciding body for patent infringements. This will eliminate all the conflicting decisions that go on around the world, and reduce to a minimum conscious or unconscious bias that a US jury (or a US judge) might weigh against a South Korean company.
  2. Review each patent rigorously to examine whether they are too obvious to patent.
  3. Use an independent party to decide licensing fees, and make licensing fees a percentage of the final purchase price of the product. Want to make a Rolex replica exact in every way ? Well, the panel might decide you can do so … as long as you pay Rolex 100% of the purchase price. Want to use “pinch to zoom” on your device ? Expect to pay Apple a tiny amount like 0.5% of the purchase price.

Of course none of this is likely to happen. Intellectual property rights are too much of a cash cow for IP trolls and IP lawyers for any big changes.

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