Landmark Design Patent Case: Apple versus Samsung

An interesting piece from Fortune magazine came across our desks at Trig® this morning, outlining the ongoing battle between Apple and Samsung in the tablet computer market.  There’s nothing much at stake here, if you think hundreds of millions in revenue and billions in market valuation are small considerations.  The Silicon Valley giant’s standoff with the Korean colossus reminds us yet again of the importance of the patent drafting work we do under the Trig PDQ banner.

As Roger Parloff’s story relates, Apple is the undisputed leader of the “Silicon Valley industrial design renaissance,” and until just this past year, easily outpaced its competitors in filing design patents in the world of consumer electronics and computing.  At issue here, in the ongoing court case, is Apple’s claim that Samsung has infringed on its Ipad design with its Galaxy tablet series and Infuse smart phone family.

In full disclosure, we are neither Apple-heads nor Samsung geeks—we use tablets from multiple brands at Trig®, and we appreciate the balance of form and function that have been brought to the power users among us.

The way that judges have to decide infringement suits rests on precedent that is especially old—the Supreme Court hasn’t heard a design patent case since 1871.  According to the intellectual property attorney quoted in the piece, judges are left in the particularly bad situation of having a very subjective tests when looking at what Parloff describes as our “minimalist masterpieces”—does the overall impression of the “accused” product appear “substantially the same” in the eyes of an “ordinary observer.” This murky framework sounds more than familiar, as it reminds us of Justice Potter Stewart’s claim, while evaluating an obscenity case: “I know it when I see it.”

While Parloff opines on the simplicity of patent drawings—“like the proverbial Jackson Pollock painting, your kid could have drawn these”—the world of patents certainly isn’t child’s play. As with Pollock’s paintings, design patents represent the elegant simplicity of years of development work and monetary resources.

The piece is informative and provocative, in that Parloff correctly defines the underlying question in a world where Apple certainly wasn’t the first company to conceive of and even manufacture tablets, much less file for patents on these devices: is it fair for fast-follower companies like Samsung to “rip off” key design elements—those that rely on form, not function?

We happen to think that the courts, while at first glance seem to vacillate on the subject at hand, have the common sense-driven intelligence to know the difference between a design patent filed for a bicycle versus one that folds in the middle of the frame to reflect the visual brand language of the manufacturing company.  So, too, will the courts ultimately be able to differentiate between elements like casings and touch screens versus icons that define a user experience.

Raster Is Disaster: Quality Patent Illustrations

By Ty Hagler

A few weeks ago, I was catching up with Justin Nifong, a Triangle-area intellectual property attorney who relies on our patent illustration service, Trig PDQ.  Our conversation turned to the merits of using vector illustration tools versus the old approach of hand-drawn, rasterized patent figures for submission to the US Patent and Trademark Office. In expressing his frustration with the old-school approach, Justin provided this gem of wisdom, “Raster is Disaster.”

Justin and I share the opinion that using software-driven vector drawings is so much more efficient than raster drawings that it would be absurd to continue to use the old technique for patent filings.  While I have a deep respect for the artistic prowess of some of those who still rely on hand-drawn patent figures for new product submissions to the USPTO—and it’s truly an art form—this is simply a case where technology serves business better. And, after all, we are talking about patent illustrations in the service of business, not paintings or sculptures to display in our homes.

Since the earliest use of illustrations to accompany a patent, the intellectual property profession relied on hand-drawn product figures. The draftsman would draw the figures and submit to the patent attorney, who would, in turn, file with the USPTO through mail correspondence. As this industry has modernized, the USPTO has had to scan the millions of existing patent filings for digital access, creating a rasterized, pixilated version of the patent draft that is subject to either unwieldy file sizes or grainy resolution.

By contrast, the use of vector illustration tools eliminates the headaches of scanned raster figures.  Vector drawings define each component of a patent figure mathematically.  When a line is defined in its simplest mathematical expression, the computer doesn’t need as much data to define that line, and has a lot more control over editing the line at any point in time. With vector-based software, revisions take minutes, not hours.  Since the software defines each component in mathematic terms, we can then work on individual components in need of a quick fix. In other words, we’re touching up the Mona Lisa’s eyebrow, not repainting her entirely.

We’ve seen countless examples when a client will advise us of certain revisions to be made, fully expecting that we’ll return the new work in days. To say they are stunned to find a new revision file in the time it takes them to return a few emails is an understatement. Being able to make targeted changes to a draft, versus a complete re-work, is essential to get patents submitted on time.

A few months ago, we had a client file a patent with the US office and then later decide to file globally across select markets in Canada, as well as Europe and Asia. A reality of the global patent filing process is that each government office has unique, sometimes quirky requirements for patent illustrations. Using vector software enables us to make the nuanced adjustments for each office, without having a whole new draft for each one. Obviously, this is a huge win for our clients and their intellectual property attorneys from both cost and time perspectives.

Another example of the power of using vector tools came when we receive vector product renderings or 3D CAD models digitally.  When we have editable files to work with, our drafting time per figure for complex illustrations can happen in half to a quarter of the time needed compared to non-editable raster source images.

It’s clear that vector drawings save much time, and this directly translates into saving quite a bit of money for our clients. This streamlining of the project execution enables us to be more competitive in executing the work compared to those who are still illustrating each figure by hand.