The verdict in Apple vs Samsung has brought the patent system sharply into focus.
Some argue the complexity of patent law is unworkable because, arguably, designers, engineers and techies need not only the requisite skills in their own areas of expertise, but also advanced skills at recognizing that a product does not infringe existing patents.
So, what does the verdict actually mean for creatives and designers, and does it matter?
A Monopoly Over Rectangles with Rounded Corners in Question
At this point it is worth looking at what the actual infringements are deemed to be. Samsung’s statement after the verdict ‘that patent law can be manipulated to give one company a monopoly over rectangles with rounded corners’ was rather unfortunate.
Although, the court did find that Samsung had infringed a number of Apple’s patents, rounded corners was not one of them.
The infringements covered the software patents enabling ‘bounce back’, ‘pinch and zoom’ and ‘double tap to zoom’, and the design patents for the front face, the back and icon design.
It can be argued that some of these software patents could be seen as new standard forms in the industry, so why has Apple won a patent case based on some of these features?
Without going into the legal intricacies and without over-simplifying the issue, the key point in the verdict is the ‘willful copying’ of these aspects of Apple’s patents.
Apple Designer’s Choice of Sunflower for Icon Used Against Samsung
Mac Iconographer Susan Kare’s testimony in the witness stand illustrates this, pointing out that her sunflower design for the photograph icon was an apparently arbitrary choice, without specific reference to any particular camera, place, person or product.
In fact, Ms. Kare could have chosen any design she wanted to represent a photograph, but she chose a sunflower. Ms. Kare’s choice of a sunflower may have been arbitrary, but her witness statement illustrated the thought and design processes she went through to decide upon a sunflower.
Samsung had similar free-reign to choose any design they wanted for their photograph icon, but out of the billions of images they could have used, they chose a sunflower.
Dependent on what side of the fence you are sitting on, the repercussions from this verdict will wreak design havoc, stifle creativity and result in more law suits. Or it will inspire innovation, provide more choice for consumers and bring about a change in the current patent system.
Minefield Ahead for Creativity?
Samsung’s statement post-verdict that both consumers and innovation will be hurt by the decision has been acknowledged by some as the true cost of this case.
Bill Flora, creative director of design firm Tectonic, was reported in the New York Times as stating that product design could become a minefield for designers trying to second-guess whether functions would infringe an existing patent.
He also pointed out certain features, such as pinch and zoom, were now such a common interface that touch-screen products without it would be like a car with a triangular steering wheel.
In Design Week Nick Roope of interactive consultancy Poke agreed that ‘risk aversion may cause some companies to withdraw from the market’.
However, he feels that it was obvious Samsung was copying, exhibiting ‘a flagrant disregard for the original design’. As a wider consequence, understanding this – and recognizing and protecting good designs – can only be a good thing from a creative perspective.
In some respects, it doesn’t really matter that Samsung lost this case.
It may have egg on its face at the moment, and the billions payable in compensation to Apple is not going to please its accountants, but now is the ideal time for it to go back to the drawing-board, rip it up, start again and re-invent the wheel. Innovation frequently stems from adversity, as Apple can attest to.
Back to the Future Verdict for Innovation
In the 1990’s, Apple was locked in a jarringly similar lawsuit with Microsoft. Apple maintained that Microsoft copied them, which prevented Apple from remaining innovative.
That time, Apple lost the case. Since then, Apple has introduced a flurry of innovations, including the iMac, iPod, iPhone and the iPad. Copying appears not to have been detrimental to either party, with quite the opposite being true.
This is certainly the optimistic view of some experts and analysts. Intellectual property law firm McAndrews, Held and Malloy told The Washington Post that ‘Within a product cycle or two, consumers will begin to see exciting, new and different-looking designs’.
The New York Times decided that it couldn’t predict whether consumers would be faced with a welcome diversity in phone and tablet design, or a glut of useless, clumsily revamped devices.
It concluded that although this particular battle may be won, the war regarding lucrative mobile technology patents is far from over, as companies sue and counter-sue over their patents.
Posturing & Gamesmanship at Work
Some patent experts have acknowledged that the posturing of these companies is nothing more than gamesmanship, akin to moving pieces around a chessboard.
They license patent technologies from each other after patent ‘misunderstandings.’ So, Apple pays Nokia a license fee of $11.50 for every iPhone sold and Samsung pays Microsoft $10 for each smartphone sold.
Aside from this, there are also the symbiotic relationships that exist between some of these companies – Samsung supplies a number of components to Apple for its iPhone and iPads.
This side of their business will not be affected by the outcome of the patent case. In the end, however it is dressed up with regard to innovation, design and creativity, it all boils down to money.
New product development and launch costs are incredibly high. Arguably, protecting patents protects these ideas from competitors using them in their own products without any recourse.
Recourse is often a financial one, whether it is imposed by a court or a mutually-agreed licensing deal. Furthermore, patents encourage creativity and productivity as companies strive to innovate and come up with The Next Big Thing.
Bottom Line for Creatives and Designers – Inspiration vs Imitation
So, does any of this matter to your life as a creative or designer? Yes and no.
While out-and-out copying is clearly frowned upon, there is a history of great design built on, or at least influenced by what has gone before.
But, whether the design process is evolutionary or revolutionary, the savvy designer will still need to be creative and original and smart enough to appreciate the difference between inspiration and imitation.
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About the Author: Amanda Duffy has a degree in law from the University of Westminster, London. She has had a successful career in music copyright and publishing at the Mechanical Copyright Protection Society, the BBC and FremantleMedia. She is now a freelance writer.