Friday, 08 June 2012 10:34

Is Apple Abusing the Patent System With Their Frequent Broad Design Patents?

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14621rotten_appleYesterday we talked about a finding posted by the US Federal Trade Commission and sent to the US International Trade Commission on how product bans hurt consumers. Although the finding by the FTC was geared toward standards essential patents it also could be argued that any product ban is harmful to consumers unless the product in question was an outright copy. The comment was aimed at Apple and their pattern of filing for broad patents to ensure they have ammunition against competition.

A few hours after we published that editorial news of Apple’s latest patent hit the Internet; a design patent so broad that it is basically patenting a shape again. As we saw with the iPad Apple likes to file exceptionally broad patents to ensure that they can legally block anyone that creates a competing product. They reasoning behind these is that to enforce a design patent the courts determine is the design is “substantially similar” to the overall design patent (yes little details are lets out) by an “ordinary observer”. If you look at the drawings below you can easily see that all of the details such as the hinge used, position of ports, even the feet are excluded.

With this design patent in hand Apple could go after almost every ultrabook maker out there. If this is not anti-competitive I am not sure what is. Also why did the USPO grant this when there are existing products using a similar design shape already on the market? It would seem to violate the prior art restrictions. In fact according to US Patent policies Apple should have listed all products on the market that use the same design aesthetic at the time of filing. They are also required by law to list any products that used this design prior to Apple’s use of the same aesthetic. We are guessing that none of that happened just as the patent review did not appear to take place, even under the new first to file rules the patent should have undergone a review (and according to the USPO an open public review) of the patent in question.

Of course all that aside, the design patent does not really fill the definition of what a design patent is supposed to be.  Even the description fails to meet this… “The Ornamental Design for an electronic device, as shown and described”… The first thing that we thought of was is this design and shape “original”? (“In addition, 35 U.S.C. 171 requires that a design to be patentable must be “original.” Clearly a design that simulates a well-known or naturally occurring object or person is not original as required by the statute.”)

The application was filed in July of 2011, which would have been one month after Intel announced their Ultrabook program at Computex of that Year. Now as we mentioned before; when does the filing of broad and aggressive patents cross the line of protecting your IP and attempting to lock out the competition? As we have seen with Intel, Microsoft, Google and others when they design and patent something to lock others out of the same category or field they get hauled into court and fined.

For some unknown reason Apple is allowed to file board patents with the INTENT to later file suit against companies to lock them out of the market. The USPO should be forced to review some of these for utility and function per their requirements. The Apple design is not original and was filed for the purposes of litigation to stop competition.

Maybe Apple lawyers and designers missed the HP Dragon with its distinctive wedge shape and rounded screen… or perhaps they did see it and drew inspiration from it… The same could be said for the 20-inch Dell that also was built with a wedge shape. You can clearly see the shape in the image below, so again how is the patent filing in any way original?
We wonder when someone will go after Apple and the USPO in the same way that Samsung is doing with the Australian Patent Office. The Australian Patent Office actually granted Apple four patents that already existed! Global patent law needs to be reexamined and overhauls very soon. It is no longer about protecting innovation and has become nothing more than a tool for companies to hurt the consumer. The many cases involving Apple, Samsung, Motorola, Google, Microsoft and more are not helping the consumer in any way. The concept of the design patent in particular needs to be looked at as it is being abused more and more frequently.

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Read 3352 times Last modified on Friday, 08 June 2012 10:47

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