Absurd patents. Rectangles on the screen

US Design Patent No. D281,686 dated December 10, 1985 on an Apple iPhone

The US Supreme Court is now considering a high-profile Apple case against Samsung Electronics . The American company requires a foreign competitor to transfer to it all the profits that Samsung received from the sale of 11 smartphones that violate patents for the design of iPhone smartphones. The huge amount of $ 399 million is only part of the total compensation of $ 930 million, which American judges ordered Samsung to pay a competitor in 2012 (initially it was $ 1.05 billion, then it was reduced to $ 930 million).

The Electronic Frontier Foundation obtained a retrial in court. Now the Supreme Court decides whether the offending company is obliged to give the competitor 100% of the profits from the sale of smartphones or only the part that is obtained through patent infringement.

You need to decide how much "extra" revenue Samsung received using the patented design of iPhone smartphones. How much would she get using a different design - not so rounded corners and slightly different screen proportions? The question is interesting.
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The judges immediately realized the complexity of the task. At the first meeting, they noted that none of the participants in the process proposed a method for calculating the correct compensation for the patent owner in the event that the patent for a specific design was violated. If the judges were not instructed how to calculate the amount of damage - what should they do in this case? Totally incomprehensible.

In theory, each of the parties had to offer its own method of calculating what share the design takes in making a profit, and judges could establish the fairest compromise of the proposed formulas. But there are no formulas.

Recall, in this case we are talking about several patents Apple, which the court found violated. Among them are the following.

• Design US Patent No. D602,016 on a black rectangular front surface with rounded corners (phone case).
  
  
  Illustration of Apple patent. According to the rules of design patents, the black lines in the illustration in the patent indicate the patented form, and the dotted lines are the accompanying information, not the patented forms.
  
  
• US design patent number D627,790 for a black rectangular front surface with a rim and a color grid of 16 icons (iOS home screen).
• US design patent number D618,677 for iPhone screen and button design.

Samsung lawyer expressed the position that the smartphone is a combination of "hundreds of thousands of technologies" that are assembled and work together. So, patents on the appearance of individual design elements do not give the right holder the right to claim all profits from the sale of a smartphone.

This position seems obvious. If the Supreme Court allowed the parties to determine the share of profit that falls specifically on the design, then they also agree with this position. But how to define it?

Apple lawyers insist on taking away all the profits of a competitor, because “Apple’s main design cannot be separated from the phone as a component”. They believe that the success of the iPhone is directly related to its specific appearance, while Samsung experienced a “design crisis” and followed an internal directive “create something like the iPhone”.

It is not known what decision the judges will take as a result of consideration of this trial (the decision of the Supreme Court is expected by June 2017), but this case perfectly demonstrates how absurd some “design” patents can be. What could be funnier than to patent a specific rectangular shape of a smartphone, if this is its most natural form? Is it not idiotic situation when a particular shape and color of buttons is considered an innovation for hundreds of millions of dollars?

Many sensible people, including the Electronic Frontier Foundation (EFF), are against such broad patents. EFF lawyers appealed to the Supreme Court to deny Apple’s demand for violating the smartphone’s design, on the grounds that the patent for a rectangular gadget is absurd in itself.

EFF lawyers sent a letter to the court explaining their position. They recall that the patent system was invented to protect the interests of inventors and stimulate innovation. At the same time, “designer” patents do not stimulate innovation at all, but suppress them, and are rather a tool for extortion and suppression of competitors. Using a design to claim all competitor profits is a good example of such extortion.

The example perfectly illustrates how inconsistent the current US patent system is, especially the design patents. They consist only of a basic textual description and a simple picture. Everything. And insanity with the issuance of such patents continues to this day.

Take, for example , US design patent number D767,583 , issued September 27, 2016, which won the title “ The Most Idiotic Patent of the Month ” from EFF in September 2016.

Description of the author's invention: "The decorative design of the screen with a graphical user interface, shown below." And an illustration. As in most design patents, it is indicated that the dotted lines are not included in the design described.



What remains in the end? The only patented design elements are the three rectangles at the top of the screen and one square below them !

The Electronic Frontier Foundation considers this patent "unusually trivial," which is "unusually easy to break." Any web designer who places three rectangular elements at the top, with a square object at the bottom, will violate this patent. Such sites are full on the Internet. Even the website of the US Patent Office has crept dangerously close to the crime.



And now imagine that in the event of such a violation, if suddenly your design really repeats the form as in the picture in the patent, then the right holder has the right to demand from you all the company's profit gained during the use of its design.