Apple v. Samsung draws line between copying and patent infringement
The inability of Apple and Samsung to agree on proposed jury instructions has hinged upon a few key issues, particularly the distinction between simple copying and patent infringement.
Arguing the relevance of copying to patent infringement
The relevance of copying to actual patent infringement has become central to the intractable jury instruction disputes that "disappointed" Judge Lucy Koh and resulted in an order that both teams meet in person to hammer out.
"Patent law is a strict liability regime," notes a report by FOSS Patents Florian Mueller. "Even with a 100% independent creation, you can be liable for infringement -- and even with 100% intentional copying, you are not liable for anything if there is no valid patent within the scope of which your copied product falls."
While copying itself is not illegal, Apple has argued that the issue of copying (which it has strategically focused up on in the case, and which Samsung has sought to distract away from while focusing upon the accused lack of merit in Apple's patents instead) is relevant to proving other claims in its infringement case with Samsung beyond simple "non-obviousness."
Apple states that its evidence of Samsung's copying is relevant to the questions of "willful infringement," "trade dress secondary meaning," (copying of packaging and other distinctive elements to steal the goodwill and reputation of the original) and "indirect infringement" (contributing toward the infringement by third parties, or benefitting from their infringement).
Not saying we copied, but even so it's okay
Samsung has walked the line between refusing to admit that it has copied, while also attempting to argue that copying itself has no direct relevance to the issue of actual patent infringement nor patent validity. It seeks to have the jury told:
"You have heard allegations by Apple that certain of its designs and patents have been copied. Regardless of whether you as the jury accept this testimony, you may not consider it in deciding whether any patents in this case have been infringed. Copying is not an element of patent infringement."
Samsung also seeks to tell the jury:
"Evidence of copying, if established, is only relevant as one of several considerations you will need to account for in deciding whether a patent is invalid because it was an obvious design."
Samsung argued that an earlier decision in the design patent case L.A. Gear, Inc. v. Thom McAn Shoe Co supports its position, claiming that the decision "clearly says that copying is 'an issue not relevant to patent infringement.'"
Mueller, however, said that "Samsung uses a disingenuous out-of-context quote," noting that the full context of the decision in that case actually support's Apple's arguments instead:
"Melville presented no evidence to counteract the evidence of copying of the patented design. Indeed, Melville admitted copying, offering as its only justification the proposition that copying is prevalent in the fashion industry, an issue not relevant to patent infringement."
But everybody follows Apple
Apple also took issue with another proposal by Samsung, which it said "goes far beyond the law to excuse Samsung's copying and eliminate the relevance of this factor." In that disputed jury instruction, Samsung states,
"Did others copy the claimed design? Where parties have a practice of marketing very similar products, however, evidence of copying is not a strong indicator of non-obviousness, but rather a measure of the extent to which parties in the market typically follow developments by their competitors, whether patented or not."
Apple's success in obtaining a preliminary injunction against the Galaxy Tab prior to the case, which Judge Koh described at one point as "virtually identical" to the iPad, makes it clear that the Apple v. Samsung case will decide, however it plays out, to what extent companies will be willing to copy others in the future.
Arguing the relevance of copying to patent infringement
The relevance of copying to actual patent infringement has become central to the intractable jury instruction disputes that "disappointed" Judge Lucy Koh and resulted in an order that both teams meet in person to hammer out.
"Patent law is a strict liability regime," notes a report by FOSS Patents Florian Mueller. "Even with a 100% independent creation, you can be liable for infringement -- and even with 100% intentional copying, you are not liable for anything if there is no valid patent within the scope of which your copied product falls."
While copying itself is not illegal, Apple has argued that the issue of copying (which it has strategically focused up on in the case, and which Samsung has sought to distract away from while focusing upon the accused lack of merit in Apple's patents instead) is relevant to proving other claims in its infringement case with Samsung beyond simple "non-obviousness."
Apple states that its evidence of Samsung's copying is relevant to the questions of "willful infringement," "trade dress secondary meaning," (copying of packaging and other distinctive elements to steal the goodwill and reputation of the original) and "indirect infringement" (contributing toward the infringement by third parties, or benefitting from their infringement).
Not saying we copied, but even so it's okay
Samsung has walked the line between refusing to admit that it has copied, while also attempting to argue that copying itself has no direct relevance to the issue of actual patent infringement nor patent validity. It seeks to have the jury told:
"You have heard allegations by Apple that certain of its designs and patents have been copied. Regardless of whether you as the jury accept this testimony, you may not consider it in deciding whether any patents in this case have been infringed. Copying is not an element of patent infringement."
Samsung also seeks to tell the jury:
"Evidence of copying, if established, is only relevant as one of several considerations you will need to account for in deciding whether a patent is invalid because it was an obvious design."
Samsung argued that an earlier decision in the design patent case L.A. Gear, Inc. v. Thom McAn Shoe Co supports its position, claiming that the decision "clearly says that copying is 'an issue not relevant to patent infringement.'"
Mueller, however, said that "Samsung uses a disingenuous out-of-context quote," noting that the full context of the decision in that case actually support's Apple's arguments instead:
"Melville presented no evidence to counteract the evidence of copying of the patented design. Indeed, Melville admitted copying, offering as its only justification the proposition that copying is prevalent in the fashion industry, an issue not relevant to patent infringement."
But everybody follows Apple
Apple also took issue with another proposal by Samsung, which it said "goes far beyond the law to excuse Samsung's copying and eliminate the relevance of this factor." In that disputed jury instruction, Samsung states,
"Did others copy the claimed design? Where parties have a practice of marketing very similar products, however, evidence of copying is not a strong indicator of non-obviousness, but rather a measure of the extent to which parties in the market typically follow developments by their competitors, whether patented or not."
Apple's success in obtaining a preliminary injunction against the Galaxy Tab prior to the case, which Judge Koh described at one point as "virtually identical" to the iPad, makes it clear that the Apple v. Samsung case will decide, however it plays out, to what extent companies will be willing to copy others in the future.
Comments
Well, here's to the imovators, whoever they may be.
Quote:
Originally Posted by AppleInsider
While copying itself is not illegal, Apple has argued that the issue of copying (which it has strategically focused up on in the case, and which Samsung has sought to distract away from while focusing upon the accused lack of merit in Apple's patents instead) is relevant to proving other claims in its infringement case with Samsung beyond simple "non-obviousness."
Can someone please deconstruct this in English?
/rolleyes
Copying versus infringement? If someone copies a patent and there isn't enough difference to make it a NEW patent, that's infringement, IMO. Many companies copy another patented design, but they change it enough to warrant a NEW patent. I've seen that happen quite often, but copying something and the average person thinks that is LOOKS the same or ACTS the same as an actual patent? That's infringement.
I was confused with several products from Samsung and HTC that at first glance it was COMPLETELY obvious they are trying to make people think they got an iPad or an iPhone, when it really wasn't. Personally, I think that is wrong. Obviously, to me, since I have a lot more experience in the industry to spot them apart, many people with much less experience would have a tough time.
Obviously, a screen size is not patentable. But the shape of the bezel and where the buttons are located, how the icons look, act, how they are arranged on the screen when you show a screen shot? Some things take the look and feel just a little too far.
WIndows, obviously was trying to copy Apple's GUI in many ways, but they changed the location of various aspects of the design to get away with it. Personally, when Apple sued Microsoft, I would have awarded them something because there were attributes that were a little too similar and Apple's design was different than the original XEROX GUI and Apple had hired the original designed of the GUI interface, so they had him further develop the original design to become more commercially usable.
C'mon Ai - hop to it. The other sites have beat you to some big news of the day:
Microsoft has licensed the very same design patents from Apple that Apple offered to Samsung. Oh, I'm sure the haters will claim MS and Apple are ganging up on Google/Samsung or come up with other "conspiracy theories". There is an "anticloning" agreement in place so MS can't make outright copies of Apple devices, but that they can still incrorporate some elements.
The bottom line: MS paid Apple (or maybe cross-licensed) to use their IP which is basically saying MS believes Apple's IP is valid.
Take the Gucci cases. Many are similar, but not EXACT, but some THINK they are a Gucci, but some know they are a knockoff. But people that mfg and sell Gucci knockoffs, can actually get arrested for that infringement, even though they don't sell them as a Gucci, they are still knockoffs.
if you take it all the way to its roots, it says "look elsewhere for properly written articles and accurate information"
/seriously
There have been some laptops where when seen 10 to 30 feet away, they look JUST like a MacBookPro, but you have to look to see if there is an Apple logo on the back.
I did that one time when I first saw some of these copy cat laptops, and I thought for sure Apple was going to sue them over it. I mean, the keyboard was pretty muck identical, the trackpad, it was too damn close of a copy.
Some of these PC and Android mfg are taking it just a little too far in some cases.
The Asian's are REALLY good at copying, but when you have the real thing in your hands against the copy, you know pretty fast which one is the original product and it is usually the better product.
I went to Best Buy a while back and checked out all of the phones on display and just by picking them up I could feel the difference in an iPhone. The iPhone just feels like a REAL product that I would want and the others just seemed cheap and phony.
THANK GOD FOR APPLE. I'm glad I have them to choose from.
There have been cases with musical instrument mfg. where Gibson, Fender and Alembic had Asian products pulled because their designs were close enough to be considered copies. They weren't identical, but they were close enough to warrant suing and having product pulled. I don't know what kind of damages ensued because these cases were done years ago, but the fact remains. If it looks to close at first glance, it's an infringement on the design.
Have a nice day.
Quote:
Originally Posted by anantksundaram
Can someone please deconstruct this in English?
/rolleyes
As I understand it from reading other articles (not AI) copying is not illegal in some cases such as when you improve upon the previous. You've made something new but the original designer/manufacturer/etc can argue that it (fairly or unfairly) takes the original as the basis. Samsung and Apple both agree that there are two issues here, one influencing the other. Did they copy and did they infringe? Impressing this on the jury influences the juries views of the second accusation. Samsung is attempting to divert this point while Apple is demanding this is correct view.
What this is about, is the fact that even if you had a patent on something and it has run out all your competitors can copy exactly as the patent has laid out and their is nothing the patent owner could ever do. You see this in the the generic drug market. Other companies who have the ability to copy and manufacture a drug which has expired patents do it all the time and their is nothing the original company can do. The drug industry the issue was most companies lacked the know how to make the drug which is not true anymore.
In this case unless the specific item being copy is covered by the patent, it is not illegal to copy it. Apple has been attempting to argue trade dress and such, claiming the iProduct has a look and feel which is part of their trade dress. It like make a fast food store that looks exactly like McDonalds and trying to say consumers would not mistake the two. Companies are not allow to copy trade dress as long as the are covered by a Trade mark or such.
We are not talking about an exact copy, like the copy of a blueprint or the copy of a mold created from an iPad.
This kind of copying (what other kind?) is always protected by copyright or other laws (and if it isn't, it should be because it's immoral).
So Samsung could be 'accused' of making a variation on a theme, but that in itself isn't a crime (it would be a crime if it wasn't allowed).
Now if we compare the iPad and the Samsung pad, it's impossible to say that they are too similar.
If you don't agree you must be blind, because SAMSUNG is plastered right in front of you and the rectangle has different proportions and it's icons are pale and one dimensional and ugly, and, you buy it outside an Apple store.
Not one consumer will be confused, they just want to buy a cheap iPad, and they know exactly what they are doing.
J.
There is an issue within an issue that needs to be distinguished.
The lay person (most of us) will understandably have a general common-sense based belief that "to copy someone else who has a patent on a device is clearly wrong." But the law puts some distinctions on this general maxim which makes exceptions to this general case. The Apple v. Samsung suit is a prime example of this distinction.
COPYING vs. PATENT INFRINGEMENT
In general, the U.S. Patents and Trademarks Office grants a patent to a party who has successfully followed their procedures for applying for a patent in order to safeguard a clearly defined piece of intellectual property from being used by others who do not share or own the intellectual property. Among other reasons, this is done to encourage the invention and development of new ideas - otherwise (as the argument goes), if everyone could instantly take and use (with no negative consequences) what it took another party years of money and hard work to develop, there would NOT be a lot motivation in the first place to inspire anyone to "build a better mousetrap." Think how you might feel if the new car you just bought (by working hard and saving), could be legally taken by anyone else when you weren't driving it and freely used for their own benefit, or any homework you did for school (where you stayed up late the night before to finish and do it correctly for a major grade) could then be freely copied and shared without your permission by anyone the next morning to turn in for their own grade. Obviously, this would not be agreeable.
By acting as though a novel idea or approach (that can be clearly defined as uniquely worthy in the Patent Office application process) is a type of property that can be owned and controlled (even though it is intrinsic and not material), the law seeks a means to provide protection and ownership rights to those who put all of the hard work and development into an idea and then must bring it out into the open to market it (thereby exposing their idea to potential competitors who can see the end result of what was done).
Alright, having said all of this, let's go back to the idea that "to copy someone else who has a patent on a device is clearly wrong" and see what the law deems important. A better way of saying this would be to state "It is wrong for one party to copy a part of a device made by another party that has a patent on that particular part of the device, but it is not wrong to copy all of the rest of that device which has no patents on it."
This means that if (to put it simply) an item has 100 parts, all new and never seen before, but only one of those parts has a patent on it and all the other parts have no patent protection, then it is perfectly alright to copy the 99 parts to a "T", but not that 100th part with a patent. On that one part, you must either build your device without it, or if you find the utility of the patented part indispensable, you must find some other way of doing it that does not encroach on the patent of the first party.
Obviously, given the extreme case offered, it would be possible for the two items, sharing 99 out of 100 parts, to appear identical and therefore one would seem to be a copy of the other, but in terms of patent law, the maker of the first item would have no case against the copy cat as long as the patentable part was not copied.
TRADE-DRESS
There is also the distinction of "trade-dress" or (simply put) how something appears at the point of purchase as a matter of potential confusion to the consumer. To continue with our example, although nothing would be wrong with copying 99 parts out of 100 to manufacture your product, you cannot copy the 99 unprotected parts in such a way that would lead an ordinary buyer into thinking your 99 part copy was the 100 part original. An extreme example of this (for illustration purposes) would be to make a legitimate 99 part copy that did not violate the 100th part patent on the original, but then market or package your product in such a way that it suggested to the buyer that they were purchasing the 100 part original. So, even though your manufacturing process did not violate the patents of the original, you would still be in violation if you created confusion in the mind of a consumer where the layperson would look at the two products, side by side, in their own packages and, because they were so similar, might become confused as to which one was which.
Sometimes a product will be granted a patent (after all the Patent Office is not perfect) which simply cannot (or should not) be attempted any other way, and this is considered onerous to competition and will be disallowed when challenged. An extreme example again would be where someone first came out with a round wheel for use on a transport conveyance (like a chariot or cart), and the Patent Office of that time sees this and says "Yes - this is unique - we'll grant a patent). The round wheel hits the road and everyone who sees it wants one, and the blacksmith who came up with it is swamped with orders. Competitors who want to also enter the wheel market will see that it is patented and promptly set about trying different designs that are not round, and will quickly come to the conclusion that any wheel, to be minimally useful, has to be round to be practical. They may then challenge the round wheel patent in court, saying that a patent was given to a design that is actually "obvious" and cannot be accomplished any other way.
PRIOR ART
Or, in the above example, even if the design cannot be deemed "obvious", a party challenging the patent granted to another may introduce evidence which shows that, although the idea of a round wheel may be unique in our culture, it has been used for hundreds of years in Europe (or another culture) and is therefore a simple re-introduction of prior art made to look as if it is a new patentable idea (irrespective of the intent of the patent holder who applied earlier for the round wheel patent). As such, the patent will be rescinded.
APPLE v. SAMSUNG
In the Apple vs. Samsung case, there seem to be several issues overlaying each other (which lawyers typically do to protect their own client's interests). I will make simple parodies (of the actual more complex legal issues) from my examples above to demonstrate.
1. APPLE: We are claiming that of the 100 parts we use to make our devices, 20 of them are patented, and Samsung's product(s) have wrongly copied 15 of the 20 protected and patented parts, and that Samsung must stop copying those 15 patented parts when they make their product(s).
SAMSUNG: We are allowed to legally copy the 80 parts out of the 100 parts you use to make your products. As an example, you have a basic rectangle with rounded corners and you don't like us to make our product like that, but we are legally allowed to because the rounded rectangle is prior art and besides, the most practical and obvious way to make a tablet.
APPLE: You are not responding to what we are saying - you are getting away from the charge of wrongly copying the 20 parts we have a patent on, and instead you are concentrating on the rectangular shape of the device, which is one of the 80 parts we don't have patented.
SAMSUNG: What are you talking about? You yourself have gone to great lengths to show that our rectangular product looks like your rectangular product! Now you are saying that the overall look of the device does not matter?
APPLE: When both products are dark (turned off), the similarity does not matter. Granted, we are not thrilled that they look identical and we have used a cheap trick in court to sway jurors on that angle in a European case, but there was a different set of trade dress issues on the table there that are not the major thrust of this case. But the "rectangle with rounded corners" argument you are advancing is disingenuous because it distracts the jury from the real issue at hand - your violation of 20 patented parts.
SAMSUNG: But some of those 20 parts you are claiming to have a patent on is clearly what you see when you compare the two rectangular products side by side. Now you are saying that the similar look of the two rectangular products doesn't matter?
APPLE: NO - what we are saying is the the single aspect of rectangular with rounded corners - what you see when the displays are dark and compared side by side - does not matter - despite the vigor with which you attempt to distract the jury. What we are saying is that once the displays are switched on, that you are using 5 of the 20 patented parts (that are protected) in your own design and that is stealing from us.
SAMSUNG: But the use of icons against a background picture has been used by other (prior art), and besides, even if we did copy that, it is the only practical way to do it (obvious design).
APPLE: But again, you are using a general case to make your point and we are talking about the 20 items we have patents on - 15 of which you have illegally copied. Yes, icons are an example of "prior art" and may even be deemed "obvious" - but you have attempted to steal the overall artful look of our screen when switched on (trade-dress) - so that consumers who are used to the same product being sold under different names (e.g., Chevy and GMC pick-ups) may think that your products and our are the same thing - when they are not. You have used our identical icons in an outright rip-off of our icon collection art designs and have included those in your product even though you don't even have the app that links to the icon. That alone goes to prove that you are outright stealing, and not just copying what we do.
SAMSUNG: But you didn't copyright the artwork for those icons so we can freely copy them.
APPLE: WE didn't have to because it is part of the trade-dress of our overall presentation, and besides - the copyright is conferred as a matter of original art even if we didn't register it with the U.S. Copyright Office.
and so it goes... all of which (if it took you a few moments to get through all of this) must be exhausting to a jury.
My apologies to the "legal eagles" among us for any faux pais (or language difficulty there might unintentionally be). My only intention was not to pose as an expert, but (as one who has more than a passing interest in this case) to share my own views.
I thank you in advance for your kind consideration.
Quote:
Originally Posted by drblank
The Asian's are REALLY good at copying, but when you have the real thing in your hands against the copy, you know pretty fast which one is the original product and it is usually the better product.
Suddenly, it becomes a race issue.
Samsung after latest evidence: ok, we copied Apple but we didn't infringe on Apple IP.
There are replicas and then there are the look alike. Both still a violation as far as I'm concerned unless they are licensed by the original company.
Copying is not infringement? What is this lawyer BS?
Maybe copying something OTHER then what is patented is not infringement. But if you are going to infringe, then YOU HAVE TO COPY THE INFRINGED DESIGN. Does Samsung seriously not understand this?
Chewbacca Defense, here we come.
This is a cultural distinction between East and West. In the East, what we call copying is considered normal business practice. Look at Japan, China or Korea. They "adopt" and improve. They do a good job of it and they certainly do not believe they've done anything wrong.
The reason this is all coming to a head is after decades of doing nothing to protect US companies by protecting our strategic interests (building strong nations sympathetic to US ambitions), China has suddenly emerged as an "adopter". So now the courts seem to be getting the prod to put an end to it.
A lovely mix of politics and the US judicial system. Barf.
Quote:
Originally Posted by jnjnjn
I think that the use of the word 'copy' is an distraction.
We are not talking about an exact copy, like the copy of a blueprint or the copy of a mold created from an iPad.
This kind of copying (what other kind?) is always protected by copyright or other laws (and if it isn't, it should be because it's immoral).
So Samsung could be 'accused' of making a variation on a theme, but that in itself isn't a crime (it would be a crime if it wasn't allowed).
Now if we compare the iPad and the Samsung pad, it's impossible to say that they are too similar.
If you don't agree you must be blind, because SAMSUNG is plastered right in front of you and the rectangle has different proportions and it's icons are pale and one dimensional and ugly, and, you buy it outside an Apple store.
Not one consumer will be confused, they just want to buy a cheap iPad, and they know exactly what they are doing.
J.
Remember when HP sold iPhones? The HP logo was on the device, so I should have assumed that the phone was designed & built by HP?
Just because Samsung was labeled doesn't mean a person would have to think that it's not a real iPhone.
I meant iPod, not iPhone. Same argument applies.
Quote:
Originally Posted by meh 2
There is an issue within an issue that needs to be distinguished.
The lay person (most of us) will understandably have a general common-sense based belief that "to copy someone else who has a patent on a device is clearly wrong." But the law puts some distinctions on this general maxim which makes exceptions to this general case. The Apple v. Samsung suit is a prime example of this distinction.
COPYING vs. PATENT INFRINGEMENT
In general, the U.S. Patents and Trademarks Office grants a patent to a party who has successfully followed their procedures for applying for a patent in order to safeguard a clearly defined piece of intellectual property from being used by others who do not share or own the intellectual property. Among other reasons, this is done to encourage the invention and development of new ideas - otherwise (as the argument goes), if everyone could instantly take and use (with no negative consequences) what it took another party years of money and hard work to develop, there would NOT be a lot motivation in the first place to inspire anyone to "build a better mousetrap." Think how you might feel if the new car you just bought (by working hard and saving), could be legally taken by anyone else when you weren't driving it and freely used for their own benefit, or any homework you did for school (where you stayed up late the night before to finish and do it correctly for a major grade) could then be freely copied and shared without your permission by anyone the next morning to turn in for their own grade. Obviously, this would not be agreeable.
By acting as though a novel idea or approach (that can be clearly defined as uniquely worthy in the Patent Office application process) is a type of property that can be owned and controlled (even though it is intrinsic and not material), the law seeks a means to provide protection and ownership rights to those who put all of the hard work and development into an idea and then must bring it out into the open to market it (thereby exposing their idea to potential competitors who can see the end result of what was done).
Alright, having said all of this, let's go back to the idea that "to copy someone else who has a patent on a device is clearly wrong" and see what the law deems important. A better way of saying this would be to state "It is wrong for one party to copy a part of a device made by another party that has a patent on that particular part of the device, but it is not wrong to copy all of the rest of that device which has no patents on it."
This means that if (to put it simply) an item has 100 parts, all new and never seen before, but only one of those parts has a patent on it and all the other parts have no patent protection, then it is perfectly alright to copy the 99 parts to a "T", but not that 100th part with a patent. On that one part, you must either build your device without it, or if you find the utility of the patented part indispensable, you must find some other way of doing it that does not encroach on the patent of the first party.
Obviously, given the extreme case offered, it would be possible for the two items, sharing 99 out of 100 parts, to appear identical and therefore one would seem to be a copy of the other, but in terms of patent law, the maker of the first item would have no case against the copy cat as long as the patentable part was not copied.
TRADE-DRESS
There is also the distinction of "trade-dress" or (simply put) how something appears at the point of purchase as a matter of potential confusion to the consumer. To continue with our example, although nothing would be wrong with copying 99 parts out of 100 to manufacture your product, you cannot copy the 99 unprotected parts in such a way that would lead an ordinary buyer into thinking your 99 part copy was the 100 part original. An extreme example of this (for illustration purposes) would be to make a legitimate 99 part copy that did not violate the 100th part patent on the original, but then market or package your product in such a way that it suggested to the buyer that they were purchasing the 100 part original. So, even though your manufacturing process did not violate the patents of the original, you would still be in violation if you created confusion in the mind of a consumer where the layperson would look at the two products, side by side, in their own packages and, because they were so similar, might become confused as to which one was which.
Sometimes a product will be granted a patent (after all the Patent Office is not perfect) which simply cannot (or should not) be attempted any other way, and this is considered onerous to competition and will be disallowed when challenged. An extreme example again would be where someone first came out with a round wheel for use on a transport conveyance (like a chariot or cart), and the Patent Office of that time sees this and says "Yes - this is unique - we'll grant a patent). The round wheel hits the road and everyone who sees it wants one, and the blacksmith who came up with it is swamped with orders. Competitors who want to also enter the wheel market will see that it is patented and promptly set about trying different designs that are not round, and will quickly come to the conclusion that any wheel, to be minimally useful, has to be round to be practical. They may then challenge the round wheel patent in court, saying that a patent was given to a design that is actually "obvious" and cannot be accomplished any other way.
PRIOR ART
Or, in the above example, even if the design cannot be deemed "obvious", a party challenging the patent granted to another may introduce evidence which shows that, although the idea of a round wheel may be unique in our culture, it has been used for hundreds of years in Europe (or another culture) and is therefore a simple re-introduction of prior art made to look as if it is a new patentable idea (irrespective of the intent of the patent holder who applied earlier for the round wheel patent). As such, the patent will be rescinded.
APPLE v. SAMSUNG
In the Apple vs. Samsung case, there seem to be several issues overlaying each other (which lawyers typically do to protect their own client's interests). I will make simple parodies (of the actual more complex legal issues) from my examples above to demonstrate.
1. APPLE: We are claiming that of the 100 parts we use to make our devices, 20 of them are patented, and Samsung's product(s) have wrongly copied 15 of the 20 protected and patented parts, and that Samsung must stop copying those 15 patented parts when they make their product(s).
SAMSUNG: We are allowed to legally copy the 80 parts out of the 100 parts you use to make your products. As an example, you have a basic rectangle with rounded corners and you don't like us to make our product like that, but we are legally allowed to because the rounded rectangle is prior art and besides, the most practical and obvious way to make a tablet.
APPLE: You are not responding to what we are saying - you are getting away from the charge of wrongly copying the 20 parts we have a patent on, and instead you are concentrating on the rectangular shape of the device, which is one of the 80 parts we don't have patented.
SAMSUNG: What are you talking about? You yourself have gone to great lengths to show that our rectangular product looks like your rectangular product! Now you are saying that the overall look of the device does not matter?
APPLE: When both products are dark (turned off), the similarity does not matter. Granted, we are not thrilled that they look identical and we have used a cheap trick in court to sway jurors on that angle in a European case, but there was a different set of trade dress issues on the table there that are not the major thrust of this case. But the "rectangle with rounded corners" argument you are advancing is disingenuous because it distracts the jury from the real issue at hand - your violation of 20 patented parts.
SAMSUNG: But some of those 20 parts you are claiming to have a patent on is clearly what you see when you compare the two rectangular products side by side. Now you are saying that the similar look of the two rectangular products doesn't matter?
APPLE: NO - what we are saying is the the single aspect of rectangular with rounded corners - what you see when the displays are dark and compared side by side - does not matter - despite the vigor with which you attempt to distract the jury. What we are saying is that once the displays are switched on, that you are using 5 of the 20 patented parts (that are protected) in your own design and that is stealing from us.
SAMSUNG: But the use of icons against a background picture has been used by other (prior art), and besides, even if we did copy that, it is the only practical way to do it (obvious design).
APPLE: But again, you are using a general case to make your point and we are talking about the 20 items we have patents on - 15 of which you have illegally copied. Yes, icons are an example of "prior art" and may even be deemed "obvious" - but you have attempted to steal the overall artful look of our screen when switched on (trade-dress) - so that consumers who are used to the same product being sold under different names (e.g., Chevy and GMC pick-ups) may think that your products and our are the same thing - when they are not. You have used our identical icons in an outright rip-off of our icon collection art designs and have included those in your product even though you don't even have the app that links to the icon. That alone goes to prove that you are outright stealing, and not just copying what we do.
SAMSUNG: But you didn't copyright the artwork for those icons so we can freely copy them.
APPLE: WE didn't have to because it is part of the trade-dress of our overall presentation, and besides - the copyright is conferred as a matter of original art even if we didn't register it with the U.S. Copyright Office.
and so it goes... all of which (if it took you a few moments to get through all of this) must be exhausting to a jury.
My apologies to the "legal eagles" among us for any faux pais (or language difficulty there might unintentionally be). My only intention was not to pose as an expert, but (as one who has more than a passing interest in this case) to share my own views.
I thank you in advance for your kind consideration.
Well said!