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As a consequence of Apple's overwhelming victory, in spite of SCOTUS's recent opinion on design damage award, we are probably going to see a lot of outrageous

As a consequence of Apple's overwhelming victory, in spite of SCOTUS's recent opinion on design damage award, we are probably going to see a lot of outrageous design patent litigation by a new species of patent trolls in coming months. I had hoped that Samsung would fight Apple's absurd design claims to the end so as not to set any dangerous legal precedence, but it looks like Apple's hometown advantage (ie, judge, jury, POTUS) was a bit too much for Samsung to handle. All in all, it's a huge loss for the tech industry with no benefit. Apple is not immune from potential design litigation, either.

dep_b 8y ago
> Apple's absurd design claims If I would put three pieces of black masking tape on the iPhone 3G and Galaxy SII covering the locations of the brands and the home button you would have a really hard time telling them apart. The OS is different but at first glance they don't look very different at all. Packaging had been cloned. The shape of the charger and connector had been cloned.
- tooltalk 8y ago
  Sure. I'm pretty sure you could also walk into any Bestbuy with just one piece of black masking tape and nobody would be able to tell flat panel TVs with thin bazel from one another once the brand gets masked. Further Apple's design was not even new, much less unique. Apple's lawyering helped -- along with Apple's hometown Judge Koh who disallowed prior arts to stand in the court. So your point being? Design patents are for very specific design elements, not the overall impression. Apple did assert trade dress claims (overall impression) against Samsung tablets (and IIRC smartphones), but the appeals court rejected it -- you can't assert trade dress claims on non-ornamental (or functional, obvious) features.
  - sjwright 8y ago
    The TV market is an excellent example of the sort of market you think smartphones are in. Everything you said makes perfect sense and would find consensus here if the context was TV sets. They are not marketed for their design aesthetic, because the audience doesn't care. They look at headline dimensions (screen size, bezel size, thickness), bullet-point features[1], image quality and price. This is not remotely similar to the way the iPhone was marketed. At the time it looked utterly distinctive to all its competitors so Apple used that as the key differentiating feature in its marketing. Samsung released a product that was so aesthetically close it wouldn't pass the masking tape test, certainly not with the iPhone's target audience. It's important to remember that nearly everyone being marketed at had never bought any modern smartphone before, ever, from any brand. [1] This is why Samsung aren't making sets that mimic LG's OLED industrial design—they're making old-school backlit LCDs with the marketing label "QLED".
    - Tehdasi 8y ago
      > At the time it looked utterly distinctive to all its competitors http://www.knowyourmobile.com/products/2404/lg-ke850-prada-technical-specifications http://www.knowyourmobile.com/products/2404/lg-ke850-prada-t... Unsurprisingly a touchphone developed prior to the iphone also is a slab of black with a touchscreen covering most of the screen and fairly minimal buttons on the edges. It was only distinctive when compared to non-touchphones.
      - sjwright 8y ago
        That tired old trope again? It amazes me how aesthetically blind some people are, that they think the Prada is even remotely similar. It is as absurd as hearing a non-programmer assert that Rust and R are basically the same.
  - dep_b 8y ago
    There’s nothing more generic than a soda bottle yet anybody would recognize the Coca Cola bottle every time. design patent awarded. http://www.patentadesign.com/gallery/coca-cola-bottle-design-patent.html http://www.patentadesign.com/gallery/coca-cola-bottle-design...
    - tooltalk 8y ago
      You are wrong again. You still don't understand what can be protected under "trade mark" or trade dress. The infamous Coca cola bottle (16oz) is far from generic. Their bottle design is not driven by function (ie, maximum capacity, minimal materials required to make one, anti-slippery, etc). We can tell it apart from other soda bottle designs precisely because the bottle's curvy contour is purely "ornamental" and unique. The Coke's bottle therefore can be protected by "trade mark" -- although the EU has however has stricter standards and has refused to grant it. Their 8oz soda can design however is utterly generic and they differ very little from generation to another. It's difficult to tell it apart from other soda cans -- not without the white logo and red background which is also trade marked -- because it's functionally necessary to come to that design to achieve maximum volume capacity and minimum materials used. This shape/design of the cans therefore can not be trade marked. Your earlier comparison is absurdly flawed because once you mask prominent non-functional (or ornamental) features (with 3 tapes), what you end up with is a generic rectangular shape which can be attributed to any mobile device, which has been around much longer than Apple's birth and certainly not created by Apple.
      - dep_b 8y ago
        Both the Samsung Galaxy S and the iPhone 3G have a rounded shiny border. That's necessary to have a working touch-based phone? I don't think so. The home button deviates from the Android standard in such a way that it looks more like an iOS home button. It runs a custom version of Android in which every change they did made it look more like iOS (icons, the bottom dock, some look and feel changes). It's also quite obvious from some internal documents they were trying to copy it as much as possible, plus Google warning them beforehand already they were taking it too far. I have an HTC HD2 and another Nokia smartphone from the same era that really didn't need to look that much like an iPhone to offer comparable services. Put three pieces of tape on that Nokia, three pieces of tape on the HTC and three pieces of tape on the Samsung Galaxy S and ask anyone which one of those two is an iPhone 3G by looking at the front, without turning them on. Everyone picks the Galaxy S instead of saying "well I guess none of those?".
- seba_dos1 8y ago
  From memory, I really don't think so. I just checked the photos of both and I'm sure I would not only tell them apart, but also tell you which one is which, despite of me not owning any iPhone with that design nor Galaxy SII ever in my life. There are plenty of distinct shapes and features on both devices that it's quite hard to confuse them - and that's only speaking about its front side, as soon as you look from a different angle or take one to your hand, it becomes impossible to make a mistake. I have no idea about packaging, chargers and connectors though. Those may be copied, I don't know. The device itself is distinctively samsungy though. I really don't think that "if you covered rounded edges, you would have hard time telling Openmoko Neo1973 (its design actually came earlier) and Apple iPhone apart" is a sound argument.
  - dep_b 8y ago
    You're right, I re-checked and it's the Samsung Galaxy S that's the obvious iClone in terms of design, the S II definitely isn't as similar.

dep_b 8y ago

> Apple's absurd design claims If I would put three pieces of black masking tape on the iPhone 3G and Galaxy SII covering the locations of the brands and the home button you would have a really hard time telling them apart. The OS is different but at first glance they don't look very different at all. Packaging had been cloned. The shape of the charger and connector had been cloned.

tooltalk 8y ago
Sure. I'm pretty sure you could also walk into any Bestbuy with just one piece of black masking tape and nobody would be able to tell flat panel TVs with thin bazel from one another once the brand gets masked. Further Apple's design was not even new, much less unique. Apple's lawyering helped -- along with Apple's hometown Judge Koh who disallowed prior arts to stand in the court. So your point being? Design patents are for very specific design elements, not the overall impression. Apple did assert trade dress claims (overall impression) against Samsung tablets (and IIRC smartphones), but the appeals court rejected it -- you can't assert trade dress claims on non-ornamental (or functional, obvious) features.
- sjwright 8y ago
  The TV market is an excellent example of the sort of market you think smartphones are in. Everything you said makes perfect sense and would find consensus here if the context was TV sets. They are not marketed for their design aesthetic, because the audience doesn't care. They look at headline dimensions (screen size, bezel size, thickness), bullet-point features[1], image quality and price. This is not remotely similar to the way the iPhone was marketed. At the time it looked utterly distinctive to all its competitors so Apple used that as the key differentiating feature in its marketing. Samsung released a product that was so aesthetically close it wouldn't pass the masking tape test, certainly not with the iPhone's target audience. It's important to remember that nearly everyone being marketed at had never bought any modern smartphone before, ever, from any brand. [1] This is why Samsung aren't making sets that mimic LG's OLED industrial design—they're making old-school backlit LCDs with the marketing label "QLED".
  - Tehdasi 8y ago
    > At the time it looked utterly distinctive to all its competitors http://www.knowyourmobile.com/products/2404/lg-ke850-prada-technical-specifications http://www.knowyourmobile.com/products/2404/lg-ke850-prada-t... Unsurprisingly a touchphone developed prior to the iphone also is a slab of black with a touchscreen covering most of the screen and fairly minimal buttons on the edges. It was only distinctive when compared to non-touchphones.
    - sjwright 8y ago
      That tired old trope again? It amazes me how aesthetically blind some people are, that they think the Prada is even remotely similar. It is as absurd as hearing a non-programmer assert that Rust and R are basically the same.
- dep_b 8y ago
  There’s nothing more generic than a soda bottle yet anybody would recognize the Coca Cola bottle every time. design patent awarded. http://www.patentadesign.com/gallery/coca-cola-bottle-design-patent.html http://www.patentadesign.com/gallery/coca-cola-bottle-design...
  - tooltalk 8y ago
    You are wrong again. You still don't understand what can be protected under "trade mark" or trade dress. The infamous Coca cola bottle (16oz) is far from generic. Their bottle design is not driven by function (ie, maximum capacity, minimal materials required to make one, anti-slippery, etc). We can tell it apart from other soda bottle designs precisely because the bottle's curvy contour is purely "ornamental" and unique. The Coke's bottle therefore can be protected by "trade mark" -- although the EU has however has stricter standards and has refused to grant it. Their 8oz soda can design however is utterly generic and they differ very little from generation to another. It's difficult to tell it apart from other soda cans -- not without the white logo and red background which is also trade marked -- because it's functionally necessary to come to that design to achieve maximum volume capacity and minimum materials used. This shape/design of the cans therefore can not be trade marked. Your earlier comparison is absurdly flawed because once you mask prominent non-functional (or ornamental) features (with 3 tapes), what you end up with is a generic rectangular shape which can be attributed to any mobile device, which has been around much longer than Apple's birth and certainly not created by Apple.
    - dep_b 8y ago
      Both the Samsung Galaxy S and the iPhone 3G have a rounded shiny border. That's necessary to have a working touch-based phone? I don't think so. The home button deviates from the Android standard in such a way that it looks more like an iOS home button. It runs a custom version of Android in which every change they did made it look more like iOS (icons, the bottom dock, some look and feel changes). It's also quite obvious from some internal documents they were trying to copy it as much as possible, plus Google warning them beforehand already they were taking it too far. I have an HTC HD2 and another Nokia smartphone from the same era that really didn't need to look that much like an iPhone to offer comparable services. Put three pieces of tape on that Nokia, three pieces of tape on the HTC and three pieces of tape on the Samsung Galaxy S and ask anyone which one of those two is an iPhone 3G by looking at the front, without turning them on. Everyone picks the Galaxy S instead of saying "well I guess none of those?".
seba_dos1 8y ago
From memory, I really don't think so. I just checked the photos of both and I'm sure I would not only tell them apart, but also tell you which one is which, despite of me not owning any iPhone with that design nor Galaxy SII ever in my life. There are plenty of distinct shapes and features on both devices that it's quite hard to confuse them - and that's only speaking about its front side, as soon as you look from a different angle or take one to your hand, it becomes impossible to make a mistake. I have no idea about packaging, chargers and connectors though. Those may be copied, I don't know. The device itself is distinctively samsungy though. I really don't think that "if you covered rounded edges, you would have hard time telling Openmoko Neo1973 (its design actually came earlier) and Apple iPhone apart" is a sound argument.
- dep_b 8y ago
  You're right, I re-checked and it's the Samsung Galaxy S that's the obvious iClone in terms of design, the S II definitely isn't as similar.