Sunday, September 11, 2011

The Stanley Kubrick Patent Defense

Apple is currently suing Samsung over the Galaxy Tab tablet computer, claiming that the Tab violates Apple's design patents on the iPad. Samsung's response is, to say the least, original:
Attached hereto as Exhibit D is a true and correct copy of a still image taken from Stanley Kubrick's 1968 film "2001: A Space Odyssey." In a clip from that film lasting about one minute, two astronauts are eating and at the same time using personal tablet computers... As with the design claimed by the D'889 Patent, the tablet disclosed in the clip has an overall rectangular shape with a dominant display screen, narrow borders, a predominately flat front surface, a flat back surface (which is evident because the tablets are lying flat on the table's surface), and a thin form factor.
Samsung is thus claiming that Apple's design patent is invalid because 2001 predates the iPad by approximately forty years.

This argument seems ludicrous on its face, but in light of a design patent, which protects the ornamental and nonfunctional aspects of a functional item, it's actually very relevant. Samsung isn't using the 2001 argument to claim that the Galaxy Tab doesn't infringe Apple's utility patents on the iPad, which protect Apple's technical innovations in the iPad with respect to how it functions - presumably any aspects of the Galaxy Tab patent lawsuit as regards the respective utility of the Tab and the iPad will be defended with different arguments, which is good because the existence of a prop in an old movie would have nothing to do with the functionality of the two tablets.

Instead, Samsung is arguing that the existence of the prop tablet computers in 2001 invalidates Apple's design patent, because Apple cannot claim a patent upon the ornamental and visual design of the iPad if those ornamental and visual aspects previously existed. (And indeed there are more examples of tablet computers in popular science fiction than just 2001.) The iPad is generally held as distinct, designwise, from earlier tablet computers due to its lack of a attached keyboard or stylus, but is it distinct from the PADD in Star Trek: The Next Generation? The court's ruling on this defense will be important, precisely because as personal technology advances and becomes more ubiquitous, we're going to see more and more devices that draw design inspiration from science fiction television and movies of the past century.

- Christopher Bird, Toronto
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