Apple wins battle of ‘look and feel’ but war with Samsung continues

Features patented by Apple were reproduced by Samsung, costing the latter US$1.5 billion. EPA/Andreas Gebert

Last Friday, a US jury delivered its verdict in one US front of the ongoing patent war between Apple and Samsung. The bottom line? The jury ordered Samsung to pay Apple roughly US$1.5 billion for patent, design, and trade dress (visual appearance) infringements.

The ruling applies to a number of Samsung’s mobile devices – including the Galaxy Tab 10.1 and a range of smartphones – and Samsung’s use of patented touchscreen features such as one-finger scrolling and double-tap zooming.

On one level, it’s hard to opine now about this case, or this verdict – we’re still in the middle of the story.

We really don’t know what the impact will be on the law and on other battle fronts. This latest jury decision is only a small part of a much larger war that I’ve written about previously.

Claims and cross-claims are flying, and the war won’t end here. Indeed the US case is far from over – there will be applications to overturn the jury verdict, hearings on injunctions and, no doubt, appeals.

And there is litigation all over the world, including in Australia, where following various interlocutory skirmishes over preliminary injunctions, a patent case is currently set down before Justice Bennett for early 2013.

Patent precedent?

This US decision is not a precedent for foreign courts: the law is different, the patents are different, and anyway, overseas courts could well look askance at a jury verdict in a complex case of this kind anyway. (The US is a rarity in still having jury trials in patent law. Pity the poor jurors faced with 700 separate legal questions for determination!)

Nor do we know what the impact will be on competition in the mobile market. Most immediately, we don’t yet know what devices a court will ban – a hearing on injunctions is due in early September.

More generally, as US expert Susan Crawford pointed out in an op-ed for Bloomberg written prior to the verdict, the fallout for competition is a bit hard to predict.

Broad injunctions could slow competition: no-one but Samsung is in a position to challenge Apple in the smartphone market. But on the other hand, the ruling could force other phone manufacturers to be more innovative to “invent around” Apple’s claims and monopoly (and this has started already). And of course, Samsung is a component supplier to Apple, and how that will play in any negotiations is an interesting question.

Patently confusing

I think we can confidently predict people will be shaking their heads over a patent system that seems to grant billion-dollar monopolies scrolling bounces, intuitive finger gestures and “rectangles with rounded corners”.

But then, people will always shake their heads about the patent system. Just a few years ago the US Congress was in uproar over a threatened injunction over the Blackberry system.

One thing I think is interesting though is that through this judgment, Apple has been able to assert a monopoly in the user interface and the user experience. If you look at the breakdown of the questions before the jury, Apple’s claims relate, broadly, to the “look and feel” of its devices and the ways users interact with their devices:

  • pinch-to-zoom
  • the “rubber-band bounce” in scrolling
  • tap-to-zoom
  • single-finger scrolling
  • flat-to-edge glass
  • bevelled edges
  • icon arrangement on a screen.

This makes an interesting comparison with history. Apple tried, but failed back in the 1980s and 1990s to use copyright law to stop Microsoft copying the style of Apple’s graphical user interface (GUI) on the personal computer.

At that time, courts balked. Now, through a combination of patent, design patent (what we would call registered designs) and trade dress protection (like the tort of passing off in Australia which can protect unregistered trademarks) Apple may have succeeded in claiming their user experience.

There’s been an evolution then, both in the legal tools people are asserting, and in the way the law accommodates and allows broad claims over the user experience. As legal commentators have noted, design protection (often considered a poor cousin to other IP rights) has proven more powerful than expected. Trademark law has granted important rights over product appearance – rights which don’t have a time limit, unlike most IP monopolies.

Appearance is everything

You might think this doesn’t matter all that much. Good looks are, after all, superficial, right? As Susan Crawford wrote for Bloomberg, we don’t necessarily want a bunch of “Apple clones” .

Maybe forcing Samsung to come up with its own brand of beauty and “cool” could be a good thing. And maybe too we don’t care that much because ideals of beauty also change. What’s cool today may not be cool tomorrow. So even Apple, with its newly minted monopoly on a certain brand of good looks, will have to change to meet the market.

But it’s worth remembering there are reasons why courts hesitated to grant protection back in the 1980s and 1990s to software “look and feel”, and that’s because user experience matters in competition. In Australia, the Copyright Law Review Committee talked about this (check out paragraphs 9.42 onwards).

Not least, consumers make a certain investment in getting to know how to work devices such as phones (or personal computers). As those of us who had phones in the days before the ubiquity of the icon-based smartphone know, getting to know menu structures in a phone makes switching to a completely different structure a very genuine cost. Good looks can be functional too.

The war is not over. But I think we can say that, if this ruling holds and is repeated elsewhere, the intellectual property terrain has changed. We’re granting monopolies over things where once we favoured consumers and promoted standards.

I’m not at all sure that’s a good thing. We’ve already seen a proliferation of patents. A proliferation of designs and trade dress claims may only complicate the IP landscape further … to everyone’s cost.

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