When the jury handed down the judgement against Samsung for $1.05 billion dollars the sense of triumphal vindication must have been all the greater for Apple stalwarts who recall the company’s bitter defeat to Microsoft, in the so-called "look and feel" decision.
In that 1994 case it was decided that "Apple cannot get patent-like protection for the idea of a graphical user interface, or the idea of a desktop metaphor [under copyright law]". Apple learnt its lesson from that ruling and gave up on copyright in favour of registering patents and designs covering every possible aspect of its iPhone.
But already the jury’s verdict in the Apple-Samsung case is raising questions as to whether a "rectangular shape, the rounded corners, the silver edges, the black face" should be able to be monopolised by a trade design and whether a patent for "intuitive hand configurations and motions" enabling self-proclaimed "unprecedented… integration of typing, resting, pointing etc" are new technology and not what is called "prior art". Should intellectual property law be able to be used to create a monopoly in all similar looking mobile phones and all similar visual display user interfaces?
Concerns have also been raised about the deliberations of the jury and whether they followed (or could have followed without being patent law experts) Judge Koh’s 109 pages of directions.
The 1994 Microsoft case was by no means identical but the similarities are instructive. The case was commenced several years prior to the decision when Microsoft’s Windows operating system went from being white text on a black screen, navigated by just the keyboard, to a desktop with icons and a mouse. Microsoft had acquired a bunch of licenses from Apple to adapt the user interface technology to its Windows operating system. Microsoft had by then captured the word processing market with its Microsoft Office software and Apple was obliged to play ball to get users to the Apple desktop.
What Apple objected to and sued for was that the Microsoft desktop user interface had the same "look and feel" of the Macintosh computer. Apple was of the view that Microsoft had used more than just the licensed technology and was ripping off the user friendliness of the Macintosh design. In that case, Apple wanted the court to look at the enormous similarity between the Mac and the Windows desktops and the overall "look and feel". Apple’s lawyers argued that this was Apple’s copyright being infringed. The court, by dissecting all the aspects of the function and appearance of Macintosh desktop into components, found that, "almost all the similarities spring either from the license or from basic ideas and their obvious expression … illicit copying could occur only if the works as a whole are virtually identical."
In copyright law the idea/expression dichotomy holds that copyright only protects the expression in material form of an idea. The underlying idea itself, however original, should be able to be shared.
The court held that the Macintosh desktop Graphical User Interface was an obvious representation of five ideas: windows, icon images of office items, manipulations of icons, menus, and the opening and closing of objects. Another desktop that had these elements did not infringe copyright unless the appearance (i.e. expression in material form) of them was copied identically. While Microsoft’s Windows desktop used another bunch of icons, menus and windows, and even though these were similarly manipulated via a graphical interface, they were not identical. Any similarity was due to them being based on the same five ideas. This District Court decision was upheld on appeal and a further application to appeal to the US Supreme Court by Apple was refused leave.
With the verdict against Samsung has Apple turned the tables on 1994?
Countries such as the United States and Australia, who are members of the World Intellectual Property Organisation and the World Trade Organisation and signatories to the Agreement on Trade Related Aspects of Intellectual Property Rights, (so called "TRIPS" agreement) have signed on to agree as a general rule that "designs that do not meet the requirements of novelty, originality and/or individual character" and "designs that are considered to be dictated exclusively by the technical function of a product" should not be registered as designs; and that patents to be valid must have "some new characteristic which is not known in the body of existing knowledge in its technical field". (i.e. not "prior art"), and must show an inventive step which could not be deduced by a person with average knowledge of the technical field".
These legal principles are contained in the domestic federal laws of Australia and the USA. The exact expression of the laws varies and how courts interpret the laws can also vary from member state to member state. With Apple being the world’s largest company and in a market the size of America, the way the US courts decide this case has worldwide repercussions enough, at least in this writer’s opinion, to potentially distort the international trade uniformity intended under the TRIPS agreement.
Since the Samsung decision the foreman of the jury Velvin Hogan took the surprising step of agreeing to publicly answer questions about the jury’s deliberations on the Gizmodo website:
"Did you have the opportunity to ask "Is this something that should be patentable?" during the trial?"
To which Hogan replied:
"No, however it was not the function of this jury to ask that. We were bound to use the law as it is today. The patents were issued the judge instructed us not to second guess the current patent system."
"Can you briefly summarise why "Prior Art" was not applicable in this court case? "
To which Hogan replied:
"Prior art was presented, what you must understand it did not pass the legal test given us by the judge under the current statues in the patent law as it is today."
"Do you think a patent on a rectangle with rounded edges should be valid and why would all the prior work showing the same obvious design not invalidate the patent?
To which Hogan replied:
"Under current law they can if you disagree that is great. Work to change the law."
Judge Koh did require in her directions to the jury that they consider, "has Samsung proven by clear and convincing evidence that Apple’s asserted utility and/or design patent claims are invalid?" The confusing part of Hogan’s replies is whether he is saying he disregarded this direction, or whether he and the jury took this direction to mean that it was simply a matter of checking off the fact of registration of a patent or a design and not looking behind that process. If the jury did understand they were not looking behind that process then it will be up to Judge Koh to decide if this was a correct reading of her directions.
Judge Koh is scheduled to decide later this month whether the jury was capable of delivering their verdict based on her directions — or whether they were beguiled by style over substance.
Donate To New Matilda
New Matilda is a small, independent media outlet. We survive through reader contributions, and never losing a lawsuit. If you got something from this article, giving something back helps us to continue speaking truth to power. Every little bit counts.