Patent battles are co-deciding factors

Patent battles have become an integral part of the introduction of new technologies to the market. The boom in mobile operating systems and tablets is no exception.

For a long time, however, minor patent disputes smoldered under the surface, mostly involving disputes over how much each party should pay for a package of patents. In fact, it was rare for anyone to actually seek a sales ban. Steve Jobs changed that in his crusade against Android.

We have already mentioned that Jobs considered Android to be plagiarism. When he presented his iPhone to the people at Google, their system was designed for phones with keyboards, without touch screens. It was supposed to compete with RIM BlackBerry. However, Google fully understood the potential of the iPhone, essentially scrapped the already prepared “gPhone” project, and began rewriting the entire Android system to match the principles of the iPhone. Steve Jobs subsequently declared that he was willing to spend all of Apple’s assets to stop this plagiarism. The situation was made worse for Google and other companies by the fact that Apple’s assets were beginning to climb toward $100 billion, which the company had at its disposal, and also because Apple had well covered the field of dispute with a number of patents. Jobs’ stubbornness thus brought a new element to patent disputes, which ceased to be a threat and became a reality: the elimination of market entry in the form of a request for a preliminary injunction prohibiting sales. Why hadn’t this been used before? Because it had never been a question of prohibiting the sale of devices, but rather of requesting a share of the sales, so there was no reason to prevent sales.

Apple embarked on a series of lawsuits in early 2010, but it was the dispute with Samsung that stirred up the most emotion. The case was heard in August 2011, culminating in a preliminary injunction by a Düsseldorf court prohibiting the sale of the Samsung Galaxy Tab 10.1 on the EU market, with the exception of the Netherlands. The German court did not rule on any patent battle, nor was it a matter of “software patents” or comparing iOS with Android. It was not that Apple claimed and the court recognized that the Galaxy Tab had a button strikingly similar to the iPad button. It was that Apple sued Samsung for plagiarizing its product.

Apple attacked the Galaxy Tab 10.1 as a product that attempts to be visually interchangeable with its iPad 2 product, essentially because it attempts to imitate its appearance (its functionality was not attacked). And the German regional court recognized Apple’s preliminary argument as sufficient to issue a preliminary injunction.

Apple proceeded in accordance with the provisions on registered Community [designs,]{dir=”rtl”} known as “Gemeinschaftsgeschmacksmuster” in German legal terminology. This refers to the appearance of a product that is unmistakable and protected throughout the European Union.

[ ]{dir=”rtl”}”An industrial design is intended for design solutions, meaning the appearance of a product, consisting mainly of the characteristics of the lines, contours, colors, shape, structure, or materials of the product itself, or its decoration. It is a visually perceptible feature of the product, not, for example, its technical or structural essence. Graphics alone, without connection to a specific product, do not constitute an industrial design. An industrial design can be protected if it is new and has an individual character. It is new if no identical industrial design has been made available to the public 12 months prior to the date of filing the application.”

Since this case was a turning point that foreshadowed further disputes, the manner in which they were conducted, and the intensity and stubbornness of both sides, we will examine it in detail.

In its lawsuit, Apple stated that the design of the iPad (the lawsuit specifically refers to the iPad 2) is unique, as evidenced by both the registration of a Community design and a number of awards such as Red.Dot, which are given for groundbreaking design solutions. It further points out that the Galaxy Tab (in the above-mentioned version) visually resembles the iPad. According to Apple, the iPad can be visually described by the following parameters:

•Rectangular design with four equally rounded corners

•Uniform, clean surface on the front of the device without any pattern

•Display centered under the clear surface

•Under the clear surface, there is a distinct, neutral border on all sides of the display with the same proportions at the top and bottom

•A slim design that is not disrupted by protrusions

•The rear edges are rounded, giving the device a narrower appearance

Apple points out that the Galaxy Tab meets all these attributes and shows in extensive photographic documentation that the device it criticizes attempts to create the same visual impression as the iPad, including copying the packaging and design.

Image: Samsung-iPad Caption: Task for the German court: spot the ten differences.

When comparing photos of the iPad 2 and Samsung Galaxy Tab 10.1, it must be acknowledged that the visual appearance is very similar, and there is reason to believe that Samsung deliberately wanted to produce a device that was visually interchangeable with the iPad. Samsung is therefore not being sued for producing [a “]{dir=”rtl”}flat [tablet,]{dir=”rtl”}” but for using all the visual tricks and techniques used by the iPad to imitate its appearance and, with that, one of the reasons why the iPad sells so well. Apple’s opponents later criticized it for slightly changing the aspect ratio of the Galaxy Tab in the evidence so that it more closely resembled the iPad—Apple countered unconvincingly that it wanted the similarity to stand out more.

Source: Apple’s request for preliminary measures

The use of the above visual elements is not a matter of design, but of appearance: Samsung certainly did not have to frame the display under the cover glass in black, as the iPad does, it could have ended the display immediately with a frame or used a number of other techniques that had been used until then. Apple does not challenge the use of individual elements, but rather their use as a whole, which results in the Galaxy Tab looking almost identical to the iPad.

After all, the situation comes as no surprise. When Samsung unveiled its new Galaxy Tab, many journalists and bloggers commented that the device looked like an iPad and that it would be interesting to see how Apple would respond.

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Patent battles are co-deciding factors

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