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Apple may have won, but software patents are still evil

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In one of the biggest court decisions in recent memory for a technology giant, Samsung on Friday lost a billion-dollar patent-infringement case launched by Apple over the design and functionality of the mobile-handset maker’s smartphones. We’ve written about the implications of this ruling for both companies, and where the case stands to go from here, but when you step back from the specifics of this decision itself, it becomes increasingly obvious that we are all losers in this kind of case — because software and design patents are inherently bad, not just for the technology industry but arguably for society as a whole. Apple’s win may satisfy its fans, and Samsung may be able to recover from the ruling, but that doesn’t make it right.

As my colleague Jeff Roberts has reported, this case was launched by Apple against Samsung last year, based on what Apple said was Samsung’s wilful infringement of software-related “utility” patents and four design-related patents it holds for the iPhone and iPad. According to Apple, the company’s smartphones — including the Nexus S, Epic 4G and Galaxy S 4G — copied elements of the design and functionality of Apple’s iPhone models, and the Samsung Galaxy Tab copied design and functional aspects of the iPad. In its statement of claim, which contained drawings that jurors relied on to decide the case, Apple said:

“Rather than innovate and develop its own technology and a unique Samsung style for its smart phone products and computer tablets, Samsung chose to copy Apple’s technology, user interface and innovative style in these infringing products.”

Did Apple really suffer because of another phone’s shape?

From a legal point of view, there appear to be a number of questionable factors involved in the jurors’ decision in this case, at least according to Groklaw, including a debate over whether the jury actually understood the specifics of what they were being asked to do, and whether they ignored certain aspects of the case in their desire to penalize Samsung. That could lead to the case being successfully appealed, but even if it isn’t, or if the appeal fails, the Apple-Samsung decision adds even more weight to the argument that software and design patents are evil and that the entire patent process is badly flawed — if not broken.

As part of the case, Apple obviously argued that it suffered irreparable harm from Samsung’s alleged copying of its design and functionality. But has it really suffered competitively? It’s hard to see how, considering the company is the world’s most valuable publicly-traded entity, with a market value of over $600 billion, and its mobile products are the market leaders in almost every category. How much more successful could it possibly be? And now, the legal ruling gives it even greater power to beat up on Google and Android — is that really a win for the technology industry or for society as a whole? It’s difficult to see how (and let’s not forget that Apple doesn’t need software patents to protect it from knock-offs — it has trademarks, trade dress and a series of other legal tools that will do that too).

Defenders of the case, and of patent laws in general, would likely argue that it doesn’t matter how large or successful Apple is: the point is that Samsung did something wrong. But what exactly do we mean by this statement? Two of the design patents involved in the case describe the way in which the iPhone is rounded at the corners and flat on the top, and another refers to the way that icons appear on the screen. Among the utility patents involved are those related to the “bounce back” or “rubber band” feature in some of Apple’s apps — in which the screen rebounds after the user pulls it in one direction or another — and to the “pinch to zoom” functionality used for images.

One designer said that the pinch-too-zoom gesture has become so ubiquitous for mobile devices and apps of all kinds that it is like claiming ownership over the idea of a circular steering wheel. Would we be better off if one company controlled the rights to the steering wheel and could charge huge sums to all manufacturers for using that design element? Probably not. But Apple could now do this with pinch-to-zoom, as well as other design and utility features, giving it an even bigger lock on the mobile device business than it already has — despite the fact that there is evidence that similar gestures existed before Apple patented them.

Update: Nilay Patel at The Verge notes that none of the patents in the Apple-Samsung case specifically refers to the pinch-to-zoom process, although several cover related multi-touch elements of the interface and one covers the tap-to-zoom gesture.

Software patents are nuclear weapons, not defences

Even if you accept that Apple did something unique and revolutionary with the zoom feature that deserves to be protected by the full force of the law, should it have the same rights to a series of icons that are lined up in a specific way on a mobile device? Or to the fact that its device has a rounded screen, or that a window which pops up on top of another window fades away automatically over time? Or the fact that one of its iPhone icons happens to look like a gear, and another looks like a pad of paper? These are the kinds of things software and design patents can refer to.

The fact that software patents can apply to such obvious-looking or even trivial applications of design and usability is why some have described them as evil, and “a cancer” on the economy and society in general. Others have warned for several years about the coming of a software patent “apocalypse” created by multibillion-dollar technology giants accumulating software patents. And in the end, these cases do little to promote any kind of useful innovation — instead, they just tie up the courts and give some companies a nuclear arsenal they can use to attack competitors.

Even some judges — such as the one who recently ended Apple’s patent lawsuit against Google-owned Motorola — have questioned whether certain industries that already experience plenty of innovation (such as the mobile phone business) need to be protected by patents at all, including software and design patents. And research by Harvard’s Berkman Center for Internet and Society has shown that software patents have provided little or no net social benefit over the past decade, despite billions in lawsuits and various legal victories.

In the end, the important question isn’t whether Apple was right to sue Samsung, or whether the Korean manufacturer directly copied elements of Apple’s design for its phones — the question should be what is gained by allowing companies to launch multibillion-dollar cases involving the shape of icons or the swiping motion that users employ to switch pages.

Post and thumbnail images courtesy of Flickr user Stefan

120 Responses to “Apple may have won, but software patents are still evil”

  1. As someone who has worked with Samsung, I can also add that Samsung allocates money in its budget to settle patent infringement lawsuits, not just because it is a big company (i.e. a big target), but because they knowingly rip off other companies. Managers there have told me that when they are developing a new product, they will allocate additional funds to settle lawsuits of the technology it rips off for that product because “it is cheaper to pay someone off than it is to develop or buy the technology ourselves.” Not that Apple is saintly either, but I do not know many other companies that operate in such a morally bankrupted manner.

  2. Sorry, Mathew. Your argument is very superficial when you say that obvious shouldn’t be patented. That is so stupid and overgeneralizing things to mislead people.
    There are two kinds of ‘obvious’. The meaningless and meaningful. Your crime is to put meaningful obvious under one category of obvious along with meaningless. Sure, rectangle by itself is very generic and obvious but by itself is ‘meaningless’. However, when applied to smartphone that is completely controlled by intuitive touch without an annoying stylus is genious. You need to take things in contexts.
    You have any idea, how much time and effort (not to mention hard cash) companies put into discovering this meaningful obvious things in this industry? You don’t seem to. They should be awarded because they didn’t get it by accident. Samsung after getting its share of success by the same ‘obvious’ should know better.
    Again, they are not all the same obviousness like you mentioned. They are Different and it clearly showed in market in a big way.
    Now that you brought up TV, TV right now is in a stupid state where it is going nowhere. Whatever Google is doing is not ‘obvious’ to me, yet. Steve Jobs claimed he finally cracked the meaningful obvious.

  3. Excellent article Mathew….the truth is apple did nothing revolutionary in fact they really should be paying University of California at Berkeley who would then provide payment towards bell labs etc…

    So all you Apple fans….1984…..get your blue shirt on and they will decide who you are….hahahahahaha

  4. I had expected something a little more responsible from you, if as you say all of these design features should not be patented then does it make sense that one company does all the work and makes all the investment just for others to knock off?
    Why do you think the designers of bags and watches pursue their claims with such vigour? The cost of R&D to conceive and create products that the buying public want and covet is enormous and the fruits/results of those costs should be protected.
    I am astonished at your naiveté.

    • Ted Inoue

      It’s not the same. The designers of bags and watches don’t have legal claim to a bag or watch of a general size and shape, they have claim to their essentially exact designs. The legal system in your example protects a company from exact knock-offs, not similar products. That’s the “trade dress” issue.

  5. One point that is absolutely lost in all this debate : The whole point of a patent is to encourage “copying”. The idea was to get the invention and its details in the open, so other inventors can copy and build on it. In exchange, the inventor got a 17 year monopoly on productizing the idea.

    Mathew in his original article is mostly arguing about the obvious/trivial angle. The criteria that worked in the 1800’s when inventions were a lot less obvious does not work today when software & design patents are more obvious at least for the (many more) trained professionals in the field. Trying to reform things by modifying that criteria is great, but probably very tough.

    The other route is to change the patent duration. 17 years reflects a balance: The socially desirable goal is not to give the inventor all present and future benefits of the invention. Rather, the goal is to create enough of an incentive that the inventor would go to the trouble of inventing and productizing the idea and future inventors would be attracted to invention.

    Apple’s experience with ipod, iphone and ipad probably prove that a 3-5 year monopoly is more than enough for today’s software patents. So why not create two software patent categories: One has the current patent duration, but very high bar of originality, and another that keeps today’s bar but gives only 3 year exclusivity?


  6. Mathew, it seems to me people are confusing two different questions: Whether the ruling was decided correctly under current law as it exists, vs. what the law SHOULD BE. They aren’t necessarily inconsistent. For various reasons I’m inclined to give the judge and jury the benefit of the doubt as to their findings of validity and infringement. I also loathe the current system and think you’re absolutely right that software patents are evil. I’ve preached about it many times, including Quora answers on the subject. Any serious reform would have to come at the Supreme Court level or from Congress.

    I also find the “IP” discussion frustrating because people conflate radically different kinds of IP. For those who think that not having a patent means going totally unprotected, that is not true. For example, it’s illegal to copy Mathew’s post and reproduce it elsewhere in its entirety without permission. That’s a form of IP protection (copyright). Yet it is perfectly legal to *independently develop* (write) another article that says essentially the same thing in one’s own words. (If very similar, it could be considered plagiarism, but that’s not illegal.)

    In software, an example of this distinction is between copying Apple’s own code that implements inertial scrolling (without permission) vs. writing your own from scratch to achieve a similar-looking result. All reasonable people should agree the former is not OK. The latter is where people get worked up, and rightly so, because a patent confers a legally protected monopoly on the inventor for 20 years — so if the patent is valid, nobody else can implement inertial scrolling for 20 years, period, even if they write their own code or hire somebody else to write it, unless they pay Apple to license the patent.

    That’s why I believe software patents are BS. It’s using a sledgehammer to kill a fly. I would venture to guess the developer community is overwhelmingly in favor of being able to be influenced or inspired by cool features and functionality they see in others’ software and replicate them, using their own labor, without living in fear of being sued out of existence.

    • pjs_boston

      Once you see a great idea in action, 90% of the work is done. To think up and perfect inertial scrolling is very hard. To write a facsimile while holding the original device in your hands is nearly trivial.

      invention and innovation need to be protected with patents, whether they apply to physical machines or software.

      • Well, the vast majority of invention and innovation has never and will never be protected with patents. Somehow the sun rises every day nonetheless.

        I represent early stage tech startups for a living and the majority of them never bother patenting anything until much later in the game when they have investors’ money to burn. Their thinking is generally that building a superior product, gaining market exposure, building customer loyalty, developing sales channels, continuing to innovate and so forth are what will make their enterprise explode in value. By contrast, a patent, after maybe three years of wrangling with the PTO to get it issued, gives you the right (just in the US, unless you spend several times more) in some circumstances to pay lawyers $2-5 million (through trial) or even more — not covered by insurance unlike most litigation — to sue another company that is arguably infringing its claims. If the defendant is a company of any size, it will respond by scouring the earth for every scrap of prior art to demonstrate the patent’s invalidity (thereby destroying its value) and/or explain how it solved the same problem in a slightly different way that doesn’t infringe. Just getting to the point where the judge interprets what a patent claims really mean (a “Markman hearing”) generally takes north of $1 million in legal fees. Oh, and if it’s a competitor with patents of its own, it will counter-sue for infringement of some of those.

        Other industries like pharma or nanotech are a different ballgame, but in software and Internet businesses, the value of patents is almost entrely as “nuclear deterrent” against suits from competitors who also hold patents. It’s an arms race where everybody loses by spending more and more money to keep up with the other guys. Plus, patent trolls are non-deterrable (as “non-practicing entities” that don’t actually make or sell anything, they can’t be infringing anyone’s patents) — so they get to rule the neighborhood as shake-down artists extorting money from dozens or scores of sucessful companies that are willing to pay them off for six figures apiece rather than litigate for seven.

    • Ted Inoue

      Antone, great reply – there’s a lot of conflating going on and these discussions have become largely emotional/ethical rather than logical/legal. The recurring theme in most of these posts is just “Apple innovated and others copied and that’s wrong. Punish the copycat.”

      These discussions miss the real issue – the fundamental validity of the patents and the flaws in the system. This particular lawsuit was tainted because the jury skipped over what was arguably the most important part of the case – the issue of prior art and therefore the determination of whether the patents are valid. A juror noted that the issue was “bogging them down so they skipped it.” It points to the inadequacy of the jury system in rendering judgments in patent law – laypeople are being asked to evaluate complex technical issues that should be handled by those with enough experience and time to properly do the job.

      As has been shown by numerous technical analysts, many of the components being claimed as Apple inventions are simply instantiations of prior work. They may not be exactly identical, but they are clearly derived from that work – enough so that the patents should not have been granted due to prior art. Unfortunately, it’s not just laypeople who make this mistake. The current patent system is unable to adequately review the industry for prior art leading to many, many patents granted that are derivative of other work. The system fails to protect the original inventors, instead giving that privilege to those with deep enough pockets to simply shotgun the system with numerous patent applications covering every aspect of their product.

  7. The author has foisted a straw man. The author should write code. Software and hardware are not that different. In some ways, hardware is just implemented ideas. Just like software code is the implementation of ideas. The hard question is where you draw the line between idea and implementation. Is a mechanical calculating machine (Babbage machine) really any different from a Lisp machine? The first had difficulties in mechanical tolerance but the most interesting parts of both are non-physical.

  8. “by allowing companies to launch multibillion-dollar cases involving the shape of icons or the swiping motion that users employ to switch pages.”

    Gross overs-simplification of facts (as has been pointed out already above it was never about _only_ that). I feel I’m reading a a comment by an overzealous, uninformed teen on reddit rather than a gigaom tech writer. Though I commend the fact that Samsung got their ass handed over, I’m not (and imo no one should be) opposed to an informed substantiated critique, no matter which side you are on. But this article provides none, utterly disappointing opinion piece from a gigaom writer!!

  9. twospruces

    people need to understand that the words “invention” and “ip” have strict legal definitions. Technical innovators and developers seem to miss that. You might think you have an invention but you don’t until it passes scrutiny in a patent process. Legally.

    Furthermore, you might think you’ve seen things before, but… unless you critically and with a stong emphasis on the correct use of language read the issued claims…you have no idea what the ip actually is.

  10. Kamal Parajuli

    Agreed, innovation should be protected. But that doesn’t mean you lay a claim to an entire industry.

    Apple should be lauded for making touch smartphones a major success. Now touch smart phones are not a niche within an industry but an industry in themselves. It means there are some basics which are essential to all the players within the industry. Then things like swipe, pinch, tap which are basic ways to communicate with touch screen should by default become non patentable. There are hardly other practical ways to do achieve the intended task.

    I appreciate apple for creating an industry but I equally despise them for their competition stifling strategy. They should be content with the fact they were the pioneer.

    Now, the biggest question is should a firm be allowed to own an industry, though they might have created it, especially one that is valued over hundred billion dollars.

  11. Srini Vemula

    I still have to meet these people who bought a samsung as it looks just like IPhone.. Agreed that there are a few curves which look the same .. but at least I have never found anyone who saw a Galaxy S 4G and said “Wow, I never thought this phone was not an Iphone” … The real difference is the Single Large Hardware Button at the Bottom which makes Iphone stand out … If copying curves was a problem, we would not have seen many successful products ..

  12. jbelkin

    You’re right conceptually as why not patent the idea of a Star Trek transporter as some patents seem so vague and so broad so clearly we need to define the parameters of what is a patent but on the other hand, you have an obvious clearcut copycat as samsung. We don’t even need the memos from SAmsungs staff that essentially says, “Copy them! Great stuff to reuse!” but just look at their PRE-IPHONE smartphones and the post iPhone smartphones look and feel. They have a higher marketshare than Apple’s iphone and they all sell for cheaper – why? BECAUSE THEY DIDN”T HAVE TO SPEND TIME ON DESIGN. They stole it (as the jury notes LEGALLY). Samsung clearly has devoted a lot of R&D and expertise to creating some of the best touch screens on Earth – no one questions that and clearly, I cannot just go up to Samsung and ask – how do you make your screens, let me look around and buy up soem equipment, right? Why is that different when it comes to Apple products? Why should I get a shortcut (just the profits, thanks) on state ofthe art screen technology without R&D and hundreds of million of dollars of false starts? How is that different than Apple who used their expertise to create a product? By your rationale, I can just copy your columns, change 6 words and say, well, you didn’t invent the words …

    So, no clear cut answers but clearly allowing Samsung to copy is wrong. Also remember, Apple offered to license it to Samsung – they decided it was worthless to pay but NOT to copy it!

  13. Karl Martin

    This post lambastes software patents, but misses one important thing: what is a software patent? This is not a well-defined term and everybody has a different idea what it is.

    Some people think that you should only be able to patent something that has a physical embodiment, and therefore anything written in software would not receive protection. But wait a minute! An algorithm can be implemented in software or directly as hardware (logic) blocks. Where’s the line?

    Instead of throwing out the baby with the bath water by simply saying we shouldn’t have software patents, I think we need to go back to the original fundamental principle of what makes a valid claim in a patent: it cannot be an obvious extension of prior art. Most of the things we complain about with the current patent system is that the stuff really is obvious, or just not inventive enough to warrant widespread protection.

    Now, I’ll give you a personal example as to why we should be able to patent some “software.” I have a startup company and one of our core products is based on a technology that performs biometric recognition on a person’s ECG (cardiac signal). This is an algorithm that was developed over several years at a university. It is embodied as software. Why shouldn’t we be afforded protection for this IP?

    • pjs_boston


      Thanks for the well reasoned post. I agree that an invention is an invention whether it is a machine or a piece of software.

      You are quite right that the most important things relating to patents are: novelty, non-obviousness, and non-triviality.

      The problem is, these things lie in the eye of the beholder. Once a product like the iPhone becomes ubiquitous, people forget how novel and non-obvious the inventions behind it were just a few years ago. Sadly, others with an agenda simply deny the validity of such inventions because they want to steal them or buy products from companies that steal them.

      It’s a sad state of affairs, but not with the patent system, with human nature in general.

    • Karl, your software is already protected by copyright and the algorithm is presumably a trade secret. Assuming you never share the source code or reveal the algorithm to the public, nobody could just copy your product, correct? They’d have to do the hard work to independently develop their own algorithm and write their own code to do something similar.

      • immovableobject

        Or if they hire a hotshot programmer to decompile and analyze your code, eventually uncovering and duplicating your trade secret algorithm. That’s totally ok with you?

      • pjs_boston


        Frequently, the algorithm is revealed through the output of the software, be it raw data or UI output. Such algorithms cannot be kept secret, but that doesn’t mean they should not be protected from theft by reverse engineering. Software patents prevent the theft of algorithms.

      • Karl Martin

        Antone, copyright protection of software only protects the particular code implementation, not the algorithm. It is intended to protect against copying of software by pirates, not against copying of algorithmic techniques.

        You mention trade secrets — this is one approach to protect IP, but as immovableobject mentions, what if someone figures out the algorithm and it’s no longer a trade secret? Then we have essentially no viable legal avenues to protect our IP.

      • Hmm, looks like my reply didn’t go through so trying again. Apologies in advance if this is a duplicate.

        Regarding decompiling and reverse engineering, that’s one of many reasons software is licensed rather than sold. Take a look at virtually any EULA and you’ll see a clause that forbids decompiling or reverse engineering the object code or output. So no, it’s not “totally OK” with me; the remedy if somebody does that is to sue their ass off, in much the same way you might sue them for patent infringement, only it’s likely to be a much simpler case that costs a lot less to litigate. For a great summary, see .

  14. The Gnome

    I might agree with software patents in some ways, though I think they should be licensed patents only.. like the ones Google seems to want to block Apple with around wifi.

    I think the harm done by SameSung copying was bigger than just the stupid “its just squares” argument. This stage of growth people are picking “sides” and every individual going with your competitor is not only a phone (or more) of sales, but could be an entire ecosystem of products, apps, movies, music etc. When one carbon copies another there needs to be consequences and people need to think a little more about the costs involved.

    I also think SameSung hurt more than just apple. By simply copying, they were able to position themselves in front of their own fellow Android manufacturers such as HTC and Motorola. Or are they failing to sell because they are not just squares? Clearly much of Samsung’s success wasn’t fooling customers, but that the iPhone look & feel was popular and an easy sell on an alternate and cheaper device.

    So while I may agree that software patents should be looked into. (I don’t want to see Google using their warchest to block iPhones either… yes, they are doing the very same thing Apple does) but lets get real – the carbon copying of Apples products and even now stores is pathetic. That people from our own country cheer on a foreign company for cheating their way to the top is even more pathetic.

    • I agree with you. I think though that Andriod itself can be considered a stolen product. So the damage goes much further. When carriers were looking for an alternative to the ATT iPhone, there was an alternative from Palm which wasn’t ripped off from Apple, webOS. The question is why Andriod was chosen over the other alternatives? Because it looked like iPhone? I think so. I think it’s time for Apple to get busy killing off Android so that other options can emerge that are genuinely different. I hear Microsoft have a nice modern OS.

    • Matthew

      They didn’t carbon copy the iPhone as no code was copied and the homescreen and many features and implementations are different. However for the app drawer and some other implementations they did basically copy Apple and should be punished to some extent however any of their even semi-recent phones have already changed this. As for the store, I don’t know enough about it but either way, I think it is stupid that either company has its own store especially with the development of e-commerce and it isn’t really a necessity so if it is copied then do what you will with Samsung’s store (I mean make them change it, sell it, or stop leasing the location). @Phil Also, Android is not similar enough to be considered stolen (the app drawer in Android in some versions is similar to the iPhone home but this for the most part has changed) especially now that it has even further differentiated itself. And if you are talking about software patents most have prior art /previous examples and the others are either obvious or frivolous (there hasn’t been a really reasonable one without prior art that I have seen Apple use in court). Finally, at most they should have to and if found infringing will have to change a few design elements and interactions instead of being “killed off “. As for Microsoft’s OS personally I hate it (based on Xbox version of Metro and playing with it on phones) and I doubt it would/will viably compete with iOS.

  15. Observer

    Obviously, once it has been invented and is used by everyone, it becomes obvious.


    So this then applies to all inventions since once invented they become obvious.

  16. Daniel Mery

    I agree with you Mr Mathew, you are right. We -as consumer- need developers and competition not LAWYERS and PATENTS. I will never buy an Apple products till Apple change its stupid policy.

  17. Can you disclose what phone and tablet you are currently using. It seems to me I’ve heard this all before from my Android-loving friends on Facebook, and from Andy Inhatko.

  18. I don’t think the problem is patents as a whole. It’s when you patent frivolous things that are are bound to be “invented” with out you.
    Imagine if you patented the wheel? Or what if Newton patented calculus? Did apple invent slide to unlock? Cause I’ve those locks on my doors when I was younger. And somebody invented TV’s and yet we have a multitude of brands that act and look pretty much the same.
    How about the automobile! They are all basically 4 wheels and a seat. I can go on and on. Apple basically patented a rectangle with round corners.
    I believe Picasso said “great artists steal from great artists”. Apple really thinks to much of themselves.

  19. Mathew – can you please suggest how’d you change the patent system? Everybody says the current system is bad, but I’ve net yet heard any good ideas for replacing it.

      • “the patent system shouldn’t include trivial or obvious or non-crucial aspects of design and software utility, period.”

        Who decides what’s ‘trivial’ and what’s not?

      • pjs_boston


        Just because you think something is trivial or obvious doesn’t mean that it is.

        The purpose of this case was to adjudicate the validity of the patents in question and whether or not they were infringed.

        Clearly, the verdict found that the patents are valid (i.e. novel, non-obvious, and non-trivial).

        Are you claiming that you, a bystander, are in a better position to judge the case than the 9 jurors who judged the case?

        Lastly, if the design attributes and software features in this case are trivial, then why did Samsung risk billions of dollars in damages by including them in their devices?

        Why not just leave them out, as Apple suggested they do?

      • A jury with virtually no knowledge or understanding of the patent system (other than a single juror who has a patent) or the details of many of the designs or processes involved came up with the decision — I think I have at least as much right to question their ruling as anyone.

      • What might seem today to be trivial, obvious (maybe even non-crucial) was consequential, innovative, and hugely differentiating in 2007. By protecting these design elements it seems to me we encourage innovation, something from which consumers always win. I am pretty excited to see what design chops Samsung might now bring to the table, just like MS has done with Windows Phone 8.

      • Matthew

        @richardmgarrett While some elements were pretty innovative, they received patents for ideas that have prior art /previous examples. Beyond this some of the patents are unreasonable broad and obvious.
        @pjs_boston Patent law is so complicated (what 109 pages in this case ?) really jurors shouldn’t really have much, if any, say in patent cases. Instead, judges who actually have an understanding of the issues should instead (and often do) have most of the power in these cases in my opinion (and in the opinion of many others). And to your last point, Samsung shouldn’t have to follow Apple if they believe that Apple’s patents that they would be infringing should be invalid.

      • Matthew, you seem to really hate these obvious patents. I think a lot of people share your views. If these ideas really are obvious, shouldn’t it be easy, with enough people devoted to the cause, to have a system where people build up a collection of publically disclosed prior art for obvious ideas before big companies get the chance to patent them?

      • ausnote

        amend to that.

        To pjs_boston and others who think this is a win for apple etc, think harder guys. These patent wars basically will not damage samsung or apple. It will damage the US economy.
        There are now many patent trolls operating in the US abusing the flaw patent system stifling innovation.

      • Piers Williams

        It’s not meant to *now* surely. Isn’t the real problem not the system per se (most people seem to agree patents are beneficial to innovation, in some areas at least) but the way it’s been run and administered?

  20. It’s such all such a horrid mess. Those innovating want to protect their creations from others, but when you allow the patenting of gestures you’re not assisting progress you’re just making sure a large rich corp gets bigger and richer. (The 1% become the 0.5%).

    If the basics of wheels, hammers, screw-threads, buttons, dials, levers, cog-wheels, pistons & cams are not covered via patents then neither should gestures – they’re the new human – machine interface and we can’t live without them.

    And while we’re banning gestures we should think ahead and ban any patents on thought interfaces before that becomes in the next battle ground our kids will have to bitch about on blogs.

  21. First many of us say that Samsung copied Apple design, but there are many more in this list now. I think touch screen addition in new smart phones make them carbon copy of each other. Apple still ahead of Samsung but Samsung making its market by introdducing new design rapidly. If you check last 6 month Apple not even introduce any smart phone, but almost 3 new models samsung introduce.

  22. Mathew, did you ever take a look at Samsung phones prior to the iPhone and Android? They were crap, and Samsung’s own internal emails suggest the difference was between Heaven and Earth. Samsung could not compete with the iPhone without copying it almost verbatim.

    The sales that the iPhone lost due to theft, not innovative competition, are what constitutes the harm Apple mentioned. You can’t see that, or do you choose NOT to see that?

    Why should Apple, or any other innovator, pour millions of dollars into innovation only to lose sales to a copycat product? Allowing copycats to continue will stifle innovation. It’s not worth spending the money to create an idea if someone else can copy it for free.

    • I disagree — Apple has not lost any sales due to theft. It may have lost some to copying, but do you really think that amounts to over a billion dollars, simply because a device has rounded corners or the way you swipe a page feels the same? I beg to differ.

      • Samsung have been found to violate several patents, so it seems to me you’re wrong to say “simply because a device has rounded corners”. They were found guilty of a great deal more than that.

      • Matthew

        @Phil You are correct that the United States jurors found them guilty of more but many people disagree with their opinion and how they went about getting it (look at some of the jurors statements, etc.). Also, other countries had way different opinions on this matter so don’t go about making it appear clear cut when it is far from.

      • pjs_boston

        I’ve never seen an author troll his own comments page before. Your argument is totally disingenuous.

        Apple wasn’t damaged because Samsung copied a feature or two. Apple was damaged because Samsung copied EVERYTHING.

        Here’s a short list of the most obvious things they copied:

        the basic shape of the device;
        the screen icons;
        the home screen layout;
        inertial scrolling;
        rubber banding;
        double tap-to-zoom-to-frame;
        swipe to navigate photos;
        the collection of bundled apps;
        the look and design of the bundled apps;
        the look and design of the box the device came in;
        the way the box opens;
        the way you remove the device from the box;
        the accessories for the device;
        hell, they even copied the dock connector and the USB charging cable.

        Sadly, Apple couldn’t go after Samsung for everything they copied. If they were able to do that, Samsung would have had to hand over all of their profits to Apple.

        You claim that Apple’s victory harms Samsung’s ability to innovate. To that I say, Samsung has demonstrated no ability to innovate.

      • So pjs_boston, you’re telling me companies should be able to patent the way you take a device out of a box, or the way icons appear on a screen, or the way a window pops up? That’s absurd — which is a big part of the reason why software and design patents are mostly ridiculous.

      • “Apple has not lost any sales due to theft.”

        How, exactly, can you prove a negative? So they’re a big company. That’s a whole world of difference between saying “they have not lost EVEN ONE sale” – which, semantically, is precisely what you said.

      • brown_te

        @pjs_boston – At least 9 of those things on your list were present with Dell and Compaq were making “Windows Mobile” phones 10 years ago.

        re: the bigger picture – the system is irrevocably broken when a jury needs a 109 page instruction document on how to decide the case.

      • Matthew

        @pjs_boston While I am sure that you will not accept any argument based on the content of your comments (I could be wrong), I will nevertheless counter your claims. The basic shape of the device was around before, some of the same icons were already done before by Palm and other companies (and Google’s prototype), the home screen is 100% not copied (maybe you are referring to the app drawer to which you may have some validity even though grids of icons were not new in themselves but their selection and touch screen interactions were somewhat), nearly every touch interaction (specifically thinking of pinch to zoom, rubber band, and inertial scrolling) were done before with previous examples / prior art while the others are way too vague /obvious (swipe to scroll through gallery is the same as swiping through anything else), the look and design of the apps already mentioned, the box claims are ridiculous (come on), similar accessories were around before, the dock connector I believe you are talking about was for a proprietary Apple connection and was probably done with Apple’s permission, and the USB connector I don’t know you may be right. Also, Samsung does way more than smartphones and their phones are different enough and are not (and were not) even competing in several markets (T-Mobile, MetroPCS, etc) and therefore would not have to give even a portion of their profits. Finally Samsung has innovated in smartphones (Galaxy Note and Samsung Galaxy S3) and in other areas if you want to see.

      • pjs_boston


        Matthew, I’m not saying that Apple should have the ability to patent such things as how the box opens.

        As we both know, Samsung didn’t limit its copying to those things for which Apple has patents. Samsung copied everything they could think of. It did not matter to Samsung that much of what they copied are defining attributes of Apple’s brand identity.

        Here is the nuance that seems to elude you:

        Apple sued Samsung only for the things that were protected by patent and trademark,

        but – the REASON Apple sued Samsung was that they copied EVERYTHING.

        In other words, Samsung brought this upon themselves by showing contempt for their competitor and customer.

        Would you argue that Samsung has the moral right to attempt to clone Apple devices right down to the design of the boxes and cabling?

        If you say yes, then this discourse is over.

        If you say no, then why does Apple not have the right to use every legal means at its disposal to fight back?

      • pjs_boston

        Mathew, I am incredulous.

        Are you actually trying to say that the physical design of the iPhone was neither original or iconic?

        Are you actually trying to say the that multi-touch gestures that Apple pioneered (via acquisition of FingerWorks and years of subsequent development in secret) were invented elsewhere?

        What are you smoking? Because I’d like to try it!

      • pjs_boston


        The jury instructions were 100 pages and the jury form was 20 pages because of the sheer number of Samsung devices included in the lawsuit.

        The patent system is broken because Samsung thumbs its nose at Apple patents and releases 30 infringing devices into the market? Come on!

      • Matthew

        @pjs_boston I do agree Samsung should be held liable in some accounts specifically how their app drawer is almost identical to the iPhone homescreen in some phones. I also agree that yes, Apple’s brand was diluted by a lot of mimicry that Samsung has done with their brand image (including the box and a few icons and layouts). But what Apple is suing over is more than that. They are suing over some things that are reasonably obvious for a computer scientist and also over things that have previous examples/prior art. The software patents they sued over with the exception of double tap to zoom (I don’t know about that one) have clear evidence of being done before (DiamondTouch, Mitsubishi device, etc). And for the design there were devices in development and previous devices that had similar design features (LG Prada, Sony device that I think was code named “Nishibori”, and even some Samsung devices when looking at the front such as the F700 and other devices). So yes they did copy, but not to the extent that they have been charged to be. Also, they have changed a lot of their ways and are therefore the case for them currently copying Apple is definitely debatable now (maybe they still be punished and forced to change a few things but their devices are pretty easily differentiated now ).

    • I disagree — Apple has not lost any sales due to theft. I think those ‘lost sales’ are more to do with an increased amount of people preferring £70+ Samsung Galaxies over £300+ iPhones during a recession. When the amount of poor people increases and a business doesn’t adjust their prices accordingly, they can expect reduced sales.

  23. Innovation is innovation. What should patents be allowed on then? Is there ANYTHING that should be allowed to be patented in your view? Think also about the slippery slope you create…if you can’t protect intellectual property then what CAN you protect? How do you protect it? Or should we just allow rampant copying of software as China does?

    “And now, the legal ruling gives it even greater power to beat up on Google and Android — is that really a win for the technology industry or for society as a whole?”

    Google has nearly a complete monopoly on the search engine. HOW you paint Google out as a proverbial “skinny little red-haired kid getting beat up on” is beyond the pail. Google knowingly stole IP from Apple. Consumers will now suffer for trusting in Google, not because Apple is evil or software patents are inherently wrong.

    This analysis is so bad I wonder how it got past the editor. You might as well say…this is wrong because I don’t like it. That’s a much more honest statement than the clap-trap you just actually put your name on in the world.

    • Matthew

      You are using several fallacies in this post above and he has given sufficient evidence to back up his view. He thinks that many software patents are unnecessary (a view that many computer scientists such as myself agree with). First you use the slippery slope fallacy and you deny that there are many ways of dividing what is and is not innovation like the one used today in the United States (which we believed is flawed). You then say it could lead to something like China, which there is no evidence for and considering that it is quickly starting to outpace us technologically and economically may not be as negative as you make it to be. You then bring up a completely unrelated point about Google’s search engine dominance which is another beast altogether while not thinking about an obvious explanation. What if we (or he) views some of Google’s patents in the same way as Apple’s? Then you say that Google knowingly copied Apple despite a lack of evidence (do you have information on both of the prototypes Google was working on) and the amount of prior art is several cases. You then blame consumers for choosing the only real competition at the time and finally attack him and his analysis despite his use of more sources that you.

      • Matthew. While I agree that some of Apple’s patents seem reaching…what other method of protection would you propose? If someone comes up with a unique theme or design…should it then be void and up for grabs in the public domain just because the public finds utilitarian use of it? That seems to be your argument. Lotus123 used to be THE name in spreadsheets. They didn’t protect themselves IP wise…and the rest is Excel history.

        Imitation is the deepest form of flattery…up to a point. Somewhere along the line Samsung crossed that line and Apple defended themselves on groundwork that could be defended If rounded corners gets it done and you have the experience to cover yourself…then so be it. If you think it’s fair that Apple can spend years and millions in development and Samsung and Google can come along and copy it in three months is…then I guess we must have very different ethical lines and boundaries that we live from.

        Regarding your comment about a “slippery slope” fallacy. I can only say that you must not have much real IP in the world. In 2003, the piracy rate in China was at 92%. In 2011 it had fallen 15 points to 77%. That’s no joke and it’s not unsupported my friend. The success of China is due in some part to billions that do not come back to the US due to piracy.

        Google being “beat up on” and the android system are not unrelated points. Google is a GIANT, not some poor punk getting beat up on. Jobs was LIVID about the theft of iPHone IP by Googles Android system. just in case you haven’t been following the story.

        Perhaps you’ve never had ACTUAL threats to YOUR IP or had to worry about how you might have to defend yourself and defeat an opponent. Go invent something of value that others might want to steal …and after someone has made a good run to steal your idea…and you have to spend thousands to keep them at bay… THEN let me hear your opinion. I have had that experience. It is unpleasant as hell. I’d be happy as hell to have “Rounded Corners” win my case if that’s what it took when they are running away with my basic idea and getting away with it.

        All’s fair in love and war and this was a simple case of economic warfare. Men will always use whatever means are available to protect their territory, and just because someone has more money and savvy to copyright seemingly insignificant things, and resources, well those things might mean the difference between winning and losing. The Utopian world that you say you and your computer scientists want to exist where everything is perfectly protected by law, it’s a nice idea but it just doesn’t exist. Apple did a great job of innovating, Samsung was ruthless and willful in creating a knock-off to make some money. Apple then used money, lawyers, time, and politicking to create an outcome. Samsung used money, lawyers, time, and politicking to create an outcome in Korea. Different hills, different battles, different outcomes. That’s the way the system works, and if you don’t fight for yourself hard… no-one else is going to. Still the battle is not over.

        Lastly, consumers are ALWAYS to blame. When I was choosing between an iPhone and a Droid…I saw Apples argument. I thought there might be a big mess coming there that could affect my investment.. AND seeing the fork in the road…I chose to buy an iPhone. Sometimes I don’t do my research and invest in a phone book ad. Caveat Emptor.

    • ausnote

      what does monopoly in search engine or how big google is got to do with the patent software ????
      to cut through all your meaningless statements, the flaw patent system which awarded apple the win will do more damage to the US economy and US consumers and I concurred with Mathew on this.

  24. Jonathan Polley

    This article brings up one question that wasn’t addressed: How should a company protect their investments from copy cats? I understand why Apple did this, given what happened between them and Microsoft with Windows. If I Sony or Motorola and was to develop a new an innovative device, should I be able to protect my investment? If so, how?

    • Copying aspects of hardware is already well covered by patent law — I don’t think legal protection should be available for the kinds of things Apple sued over, such as the rounded corners of a device or the look of a screen. If you want to protect your investment, then continue to innovate.

      • Jonathan Polley

        You assumed that the product was hardware, please don’t do that.

        If I am to take your last sentence to its logical end, I would see this: Spend money to invent something new, have someone not make the investment and build a knock-off so I send more money to innovate only to have those innivations copied, ad infinitum. Why should I innovate? This holds for any type of innovation.

        You obviously don’t like software patents, but I would have preferred to see something about the vagueness of the patents or something like that. Basically addressing the problems with the patent system rather than a symptom.

  25. Writer in L.A.

    Without the protection of patents and copyrights practically no one will ever again invest hundreds of millions of dollars in research and development to change the nature of consumer products. Without that investment by Apple, Blackberry type phones would still rule the world. The jury got it right. Let Samsung and all the other smart phone makers invent their own systems, not dissect and copy Apple’s.

    BTW, I use a Samsung phone myself.

    • Really? So because Microsoft allegedly copied Apple, there should have been no reason for Apple to invest billions in its computer business — and yet it did, and now it is the world’s most valuable company. I sense a logical flaw in your argument.

      • The difference between the Apple/Microsoft trial and Apple/Samsung trial is that there are now software patents. Apple maybe felt its investment would be better protected this time… seems they’re right.

      • pjs_boston

        You cannot use Apple’s current success to justify Microsoft’s theft of Apple IP in the ’80’s and ’90’s. That is patently ridiculous, pardon the pun.

        Microsoft’s IP theft nearly killed one of the greatest companies on Earth. The improbability of Apple’s resurgence only strengthens the argument for IP protection.

        Apple is only resurgent now because of Steve Jobs’ obsession with returning Apple to what he felt was its rightful place at the top of the IT industry. Sadly, most companies do not have a savior like Steve Jobs who have such a personal stake in the issue and who have such exceptional abilities.

        In the ’90’s there was no logical reason to think Apple had a snowball’s chance in Hell against Microsoft. Most believed Jobs was tilting at windmills. Recall Michael Dell’s famous quote: “Shut it (Apple) down and give the money back to the shareholders”. Or Bill Gate’s quip: “He (Jobs) must know he can’t win”.

        Were it not for Steve Jobs return, Microsoft would have indeed killed Apple. I for one, can’t think of a better justification for laws against IP theft.

      • Matthew

        @pjs_boston I think you are completely neglecting Xerox (the company that Apple “copied” as much as Microsoft copied Apple) and if you were absolute about your opinion then that is the company that was ” nearly killed ” that you would support. :-) And I would disagree with your idolising of Steve Jobs; he was a just as human as anyone else and he committed more than his fair share of negatives for what he accomplished in my opinion.

      • pjs_boston


        Now you are resorting to revisionist history.

        Apple did not copy the Xerox user interface. Apple was well into the development of its own GUI when Apple engineers visited Parc. That’s right, they visited the lab and got a single demo. That’s it.

        And by the way, Apple paid Xerox – up front – a million Apple shares to get a tour of the Parc research Center. Xerox shared their work with Apple willingly.

        Yes, Apple got ideas from their visit to Parc Research, but Apple’s implementations are very different.

        Check out the videos of the Xerox Star on YouTube and see for yourself.

        Perhaps more important to the development of the Mac was that most of Parc’s engineers jumped ship to Apple when they learned that Apple was serious about shipping a product.

      • Guy B Serle

        Matthew you’ve also forgotten the main reason why Apple lost that lawsuit. They in essense GAVE Microsoft permission to copy elements of the OS in the agreement between Aple and Microsoft when they needed MS to create Word and Excel for the Mac. It wasn’t intended to be used for MS to copy elements of earlier versions of the Mac OS for their own OS, but intentions don’t really matter when it’s spelled out in black and white.

        As far as the Xerox argument goes, Xerox ironically ALSO gave Apple permission to use design elements of PARC in the agreement to allow Apple’s engineers to visit their facility and see it. Xerox was given stock in exchange for that.

        You shoudn’t say that that it’s ok to just take patented idea or technology without compensation. IF the company with the patent doesn’t wish to license those patents, then find a different way to do that doesn’t violate those patents. Actually innovate with something different as Microsoft is now doing with their mobile OS.

      • Matthew

        Well, Microsoft’s implementations were different as well. Also one demo is more than enough for a computer scientist. :-) Finally, just because Apple got Parc’s engineers doesn’t mean they can use their information working for one company to work on a similar version for another company (that would be like saying that one of Palm’s designers went to work for Android so he has license to take work that he did for Palm and use it in Android (Martis Duarte or something like that I think?)).

      • Matthew

        @pjs_boston Also, I’m Matthew not Mathew. To be honest, I really hate it when people misspell my name as this issue comes up with my last name Thornton as well with people spelling it Thorton. Cool fact : there was another person named Matthew Thornton who signed the Declaration of Independence :-)

    • ausnote

      All companies invest in R&D to stay ahead. In this case, apple is basically using the flaw US patent system to be anti competitive. Again, the only loser is the american consumers.

      For example, look below to the link on what IOS 6 is copying and trying to catchup to Android from Pocketnow. Also alot of ios 6 features existed in Android a long time ago

      I have been using pocketpc from the early days and they essentially have similar UI to todays phones and for apple to rehash ‘common sense’ UI and call and their own through a broken patent system is sad though.

      I guess apple is trying to catch to competitors by slowing down their progress as much as possible but more likely to fail. l mean look at the Galaxy S3 or the Galaxy Note next to the apple 5 year old ui and features. A court ruling will not fix apple dilemma of losing competitiveness. And more likely iphone 5 will still be playing catchup

  26. oohmyygooof

    Great article Mathew!

    In fact I like it so much I’d like to copy it and put it on my own blog under my own name. Why should I have to spend a lot of time and effort creating something when you’ve already made something that’s much better than I would be able to?

    And the consumers will benefit as well, because I can then spend my time creating sometimg else and sell ads for that as well.

    Great deal for all, don’t you think Mathew?

    • Thanks for the troll, but we’re not talking about content — we’re talking about design and usability. So to use your analogy, that would be like GigaOM patenting the way articles are laid out on the page, or where images appear. Nice try, though.

      • pjs_boston


        You argument is totally flawed.

        Software features like pinch-to-zoom and inertial scrolling with rubber banding are not akin to the layout of a webpage. They are functional inventions that easily pass the patentability test: they are novel; they are non-obvious; and they are non-trivial. I recall how the audience was held in rapt awe when Steve Jobs demoed inertial scrolling at the 2007 iPhone introduction. How quickly we forget…

        Apple’s design patents fall closer to your bogus argument, but I would amend your argument as follows: it would be like GigOM patenting (or copyrighting) their website header and logo. You know, trade dress, the designs which make GigOM’s brand distinctive. Would anyone rightly expect to be able to steal GigaOM’s trade dress without fear of legal action? Of course not!

        Your argument is built to support an agenda, Mathew. Pure tech demagoguery.

      • The above comments by oohmyygooof and pjs_boston are wayy off in their use of analogies. To continue the analogy of written articles – if I wrote another article, in my own words but to convey the same message that this particular article conveys, then there is no copyright infringement. But if I copied this article verbatim, then there is copyright infringement. What Samsung did with their phones was similar to the former in most cases, not the latter.

        Regarding trade dress: Apple’s claims are akin to Ford claiming that all other sedans infringe on its trade dress because of how those cars are shaped and function; or Samsung claiming that all Sony TVs infringe on its trade dress.

      • oohmyygooof

        Oh, so content is intellectual property worth protecting, but software and design aren’t?

        Yes, I get it. Writing articles like this takes so much more effort and investment than revolutionising the cell phone, doesn’t it?

      • GigaLoam


        “They are functional inventions that easily pass the patentability test: they are novel; they are non-obvious; and they are non-trivial. I recall how the audience was held in rapt awe when Steve Jobs demoed inertial scrolling at the 2007 iPhone introduction.”

        I feel like something I would call “inertial scrolling” had been part of the systems for navigating inventories and entering scores in video games for a long time prior to 2007. Particularly in those games which used a trackball as a main input.

      • pjs_boston

        Actually A S,

        Apple’s trade dress claims are nearly identical to those made by Jeep against Korean car maker SSangYong in the early ’00’s.

        SsangYong copied the front grill and headlight design from Jeep so closely that, as an American traveling in Korea, I was surprised to see so many Jeeps driving around. It was only when I got close enough to see the brand badges that I could tell these vehicles are knockoffs.

        Shortly thereafter, Jeep won an injunction in korea, forcing SsangYong to cull the offending model off the market.

        Sound familiar?

    • pjs_boston


      You make a good point.

      But in the case of a trackball, the inertia was provided by the ball itself, the screen content directly tracked the motion of the input device (i.e. the trackball). This one-to-one correspondence of device motion to scrolling position was the way all scrolling inputs worked before iOS.

      In Apple’s invention, a flicking gesture triggers the scroll and the inertia is simulated. Also simulated is the drag force which causes the scrolling to slowly decelerate.

      The core of Apple’s invention was to create the illusion of inertia and drag; both to make scrolling simpler, and to delight the user. They succeeded on both counts.

      This invention is part of why people went crazy over the iPhone in the first place.

      • Matthew

        @pjs_boston First, I wouldn’t call that an invention instead an innovation :-) Second, there are examples of inertial scrolling such as Sun’s Star7. Third, it would seem this would be so obvious and shown that it shouldn’t be patentable even from your description.

    • ausnote

      What a big troll. The real loser here are the american consumers. These patents are so trivial, it is called common sense. In fact apple denigrade its own follower by saying the galaxy s2 looks like apple iphone.
      For some reason i am content that apple won since it highlight the advancement in android while ios is 5 years old.
      Have you notice the amount of ios6 copying android functionalities recently?
      I will post it soon from pocketnow
      It is up to the american people who needs to fix their patent system, otherwise they will be left behind

    • Isaac Gozzo

      In my opinion I respect that a company protects its physical design. I have always though that Samsung Galaxy Tab and the first Galaxy S and other smartphones from Samsung in that same time period do resemble the iPad and iPhone. I agree with having your physical design patented since it is the way your customer are going to recognize your product in the stores. But I, too, agree with the opinion that software design patents are more harm than good. For example look at the icons, for many years (since before the iPhone era) the settings icon has been a Gear or a hammer and screwdriver crossed, the phone icon has always been a green phone icon and many more.

      Now think about this you decide tomorrow that you want to create a phone, you can’t create a matrix of icons because apple will sue you, and now tell me when have you had a phone before iPhone that didn’t have a matrix (3×3 or 4×4) in their menu? By the way if I look at the UI of Android since the beginnings it looks more like what Nokia was trying to do with their Symbian OS, having icons and widgets on the home screen while having the majority of your apps stacked in a menu folder.

      In conclusion, I do respect that a software be patented, the pinch-and-zoom feature in iOS it came with the MacBook Air first so I respect that that is Apples idea but icons, matrix, pop-up windows, those are just little things that doesn’t constitute a patent. Even in the computers when you right click an icon you get a pop-up list of options for that icon or link so it shouldn’t be patented or at least not be apple the owner of an idea that has been implemented for years.

    • WiseCajun

      Beautifully said, OMG! The people that are typically against patents are the open source freeloaders that are always looking for free stuff or a hand out in life. I say patent the hell out of your app if you can and sue the f**ckers if they violate or infringe upon it, just like Apple did, although I really don’t like Apple for its stupid counterculture ideology.