radarthekat

Soli said:

Honestly, for the timeframe, Rubin put out an exceptional product.

He didn’t gauge the market well for a quality Android phone for 2017, but his ability to engineer a device and bring it to market is impressive in its own right.

Maybe his next venture will be a market success.

I don’t know... there are only hundreds of companies printing out their own brands of Android phone.  How hard could it be?  And yes, hundreds.  Hard to believe there could be that many brands of Android, but I recall an article a couple years back that linked to a live chart breaking out all the something like 1300 different brands.  

https://www.google.com/amp/s/www.zdnet.com/google-amp/article/android-fragmentation-there-are-now-24000-devices-from-1300-brands/

AND HERE’S WHAT NOBODY IS TALKING ABOUT...

This was a trial from 2012, covering only Samsung handset models sold in the United States up to that point.  While Samsung may have quickly changed the snap-back behavior and swipe-to-unlock to avoid infringing in future models, it doesn’t appear they changed, or even could have changed, their phones’ overall designs to avoid continuing to infringe the design patents that made up the vast majority of the damages in this case.  And so it’s possible Apple could seek to add later models to this verdict, which would then potentially amount to a multiple of the current damages awards given the way the overall smartphone market, and Samsung’s unit volumes, expanded in the years since 2012.  Food for thought. 

Cup holder, my ass!

We also heard about design patents not being worthy.  Here were my thoughts at the time (I wrote this in 2013) that addressed the deeper issues...

Apple - Apple vs Samsung (Design Patents)

Since the Apple vs Samsung trial there has been much written about the merit of design patents.  I thought I'd provide a bit of insight here for those who might not be conversant in the topic.

Among Apple's assertions in its lawsuit was that Samsung copied elements of the iPhone and iPad for which Apple holds several patents.  These particular patents are known as design patents.  It seems a lot of folks don't take these patents seriously and go as far as to suggest that they should not exist.  There is a good reason why they do exist, but to explain this we have to begin with a bit of a side trip and requires that we speak about trademark law.  Bear with me on this and hopefully I'll be able to clarify the purpose of design patents and provide some insights into the Apple versus Samsung trial.

Most people are familiar with the idea of a trademark.  By way of example, Kellogg, the cereal maker, has a trademark on Tony the Tiger and fought a battle with Exxon over Kellogs' claim that the use of an unnamed tiger in Exxon's advertising violates Kellogg's trademark for Tony the Tiger.  Why?  For 30 years, Exxon used its tiger character exclusively to promote its gasoline blend, but then, in the 1990's began using it to sell food. Kellogg said consumers are confused by the similarity between the cartoon tigers and may conclude that Kellogg is somehow behind soda, coffee and other items for sale at Exxon's TigerMart stores.  The case went back and forth for several years, with Exxon initially winning the case, but ultimately losing on appeal.  This case would not seem extraordinary to most people as most folks understand the concept of protecting a unique trademark like Kellogg's Tony the Tiger character.

Now let's look at another case, one that comes closer to the Apple vs Samsung case, but still an application of trademark law.  This case is Ferrari vs Robert's Replicas.  Back in the 1980's Robert's Replica's was in the business of manufacturing fiberglass kits that replicated the exterior features of Ferrari's Daytona Spyder and Testarossa automobiles. Roberts' copies were called the Miami Spyder and the Miami Coupe, respectively.  Ferrari brought suit against Roberts in March 1988 alleging trademark infringement. 

Here's what this case was about:  After Ferrari vehicles have been on the market for a number of years, the design of those vehicles acquires what's called "secondary meaning", a concept at the heart of trademark law.  Secondary meaning refers to an association of a design, like the design of a Ferrari vehicle, with quality and craftsmanship or other positive attributes one might associate with the Ferrari brand.  After a design has acquired secondary meaning, trademark law can be applied to protect the company from those who would copy its designs and use them to promote their own products.  Robert's copying of Ferrari's iconic designs could confuse the public and dilute the strength of Ferrari's brand.  Just the presence of large numbers of replicas would dilute Ferrari's image of exclusivity, causing financial harm to Ferrari.  Trademark law, under the concept of secondary meaning, protected Ferrari.  The courts ruled in favor of Ferrari in this case and enjoined Roberts from producing the Miami Spyder and the Miami Coupe.

But how does this relate to design patent law? 

The problem with using trademark law to protect a company's designs (under trademark law a product design or package design is referred to as "trade dress") is that a product has to be on the market for a long time before its design acquires secondary meaning (i.e. before the design becomes iconic and is seen by consumers as representative of the company behind the product). When competitors come in immediately after a new product design is introduced and copy it, as is the assertion in the Apple vs Samsung case, the originator of the design doesn't have the luxury of time needed for its product design to acquire secondary meaning in the eyes of consumers.  Consumers immediately see the same design from multiple companies and so don't grow to associate the design with the company that originated that design.

This is where design patents come in. Where trademark protection of an iconic product design has no expiration, it takes time for a new product to acquire that protection (as stated above). A design patent offers immediate protection of a new and novel design and for a period of 14 years thereafter, giving a company protection of its original designs until they acquire secondary meaning in the market and therefore protection under trademark law. So the design patent serves a valuable function for companies like Ferrari, and Apple.

Apple stores not only inspired attempted copying by competitors, they became the model for Apple authorized resellers, like the iStore chain here in the Philippines.

Other than aesthetic appeal, which is in the eye of the beholder, it seems a round watch display offers no advantages over a rectangular display.  The imperative for a round face went away with circular mechanical movements, and I doubt Apple will revive it for the wrist-mounted computer we call the Apple Watch.  

Looking at the 2016 patent filing date, it seems as though the patent could be related more to the rounded corners of the iPhone X.  Apple may simply have illustrated the patent with the obvious application in order to obfuscate its true purpose.