Much of the problem is that patents (although originally intended to protect inventors and artists) are being abused by corporations looking to prevent competition. They have teams of lawyers to make sure that their new “ideas” are dissimilar enough to pass cursory prior art checks, but vague enough to allow for legal action later. This is especially present in software and design patents where the description on some of these patents is so open that they could mean almost anything. It leaves a lot of leeway for judgment and puts the burden on judges that are not technically competent.

You end up with situations where products are banned (which studies have shown hurt the consumer in serious ways) all based on the interpretation of a vague and non-specific design patent. Of course the US is not the only place where broad design patents are thrown around as if they have serious weight, we have seen them put up as offerings for product bans in multiple countries with the same effect.

However, something interesting has happened recently in the UK. In a very unusual decision the High Court of England and Wales has ruled that the Galaxy Tab 10.1 does not infringe on Apple’s open design patent. Instead of looking at the open and difficult to pin down wording of Apple’s patent the court instead looked for unique differences that would allow a consumer to identify one over the other. The Court found not just one or two but 50 of them. Of most significance was the large “Samsung” on the back of the tablet.

“From the front they belong to the family which includes the Apple design; but the Samsung products are very thin, almost insubstantial members of that family with unusual details on the back”

Apple, in the meantime is continuing to try and make the claim that Samsung devices are nothing more than “slavish copies” which to the ears of many are getting very old. We have even heard some Apple fans wondering what Apple is talking about here as the new Samsung devices have very little in common with Apple products at this point other than the fact that they have competing products in the same category. The reason this is novel is that instead of just looking at if the product (in this case the Tab) fits inside the design patent; they looked at how it did not. Sorry but finding over 50 identifying differences is a big deal the question is why none of the other courts saw these same things, is it laziness or have they fallen victim to Apple’s Mythology that they alone create new technology?

But it is not just Apple that are trying to pull this (although they are the leading ones and also try to push design patents more than others) we have seen lawsuits from Motorola against Apple and Microsoft complete with ban requests. Samsung, HTC and LG have gotten into it too so it is the whole system here that is broken even though we hear more about Apple due to their aggressive nature and quite frankly ridiculous claims when it comes to their patents (how can you patent a rectangle or wedge?). Steve Jobs’ “thermonuclear” war against Android and the makers of Android phones and their (Android phone makers) retaliatory actions are coming at a major cost to consumers in addition to making the patent systems around the world look like a joke. Maybe the patent judges out there can take a cue from both the UK High Court and Judge Posner and look at these cases for what they are from the beginning (and possibly levying fines or sanctions in the event that a suit is found invalid or fraudulent). It would mean that less of these frivolous patent suits would take up court time and money in the end it might make companies innovate to compete instead of trying to throw their patents around to get an edge on the market.

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