THE 2001 DEFENSE

The epic Apple-Samsung patent dispute is now on trial and, justly, generating headlines in the popular press.  In particular, it has been widely reported that the Court  has prevented Samsung from introducing clips from Stanley Kubrick’s 1968 classic 2001: A Space Odyssey in which astronauts Frank Poole and Dave Bowman are looking at tablets that have an uncanny resemblance to iPads.   Why, you might ask, would any lawyer think that a fictional device could be relevant in a high-tech patent case?  And if it could be, why is the judge being such a killjoy?  Answers after the jump.

As discused in a previous post on the case,the intellectual property at the heart of the Apple-Samsung dispute are design patents.  Whereas utility patents, which are far more numerous and  familiar,  protect new and useful machines, articles of manufacture, processes and compositions of matter, design patents protect original “ornamental designs” for products.  Classic examples of protectible ornamental designs are silverware patterns.  While usefulness is one of the touchstones of utility patent protection, it is a killer for design patent protection; a design which is dictated by function will not qualify. A design patent is infringed if the designs “have the same general visual appearance, such that it is likely that the purchaser or the ordinary observer would be deceived into confusing the design of the accused article with the patented design.” The patent itself consists of drawings depicting the design. Examples from the Apple design patents are shown here.

Why did Samsung’s lawyers want to introduce imaginary tablets from 1968? As noted above, a design patent only protects an “original” ornamental appearance. If Samsung can show that a very similar design had been conceived and was publicly displayed in the past, even on a device that was nothing more than a cardboard movie prop with no actual utility, it could serve to invalidate Apple’s design patents.

Why, then, has the evidence been excluded? There answer to that, I am afraid, is a lot less interesting. Samsung’s lawyer’s simply failed to make this argument until too late in the case. If, as some are predicting, Apple v. Samsung is a harbinger of a coming explosion of design patent litigation in the tech industry, lawyers will be combing through the archives for films and TV shows of the past for evidence of prior art early and often. How long before a large law firm begins marketing its “Sci-Fi Practice Group”?

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