by Mike Masnick
Wed, May 16th 2012 7:35pm
by Leigh Beadon
Wed, May 9th 2012 4:01am
Did Apple's Claims Over Rectangles And Corners Lead To 'The First Smartphone Designed Entirely By Lawyers'?
from the seems-that-way dept
Android blogger Ron Amadeo has a great post over at Android Police where he tries to explain the design of the new Samsung Galaxy S3 smartphone, which many people have deemed pretty hideous. In his opinion, it all comes down to legal tiptoeing.
As you may recall, last year Apple sued Samsung over earlier products in the Galaxy line, claiming infringement of all sorts of different rights, among them some broad trade dress registrations involving basic design choices like black borders and rectangles with rounded corners. Amadeo walks through the many notable aesthetic elements of the S3 (including the stark changes from previous Galaxy phones) and compares them to Apple's list of trade dress claims, noting how several aspects of the phone seem designed to counter specific complaints—and the case he makes is pretty compelling. These are just a few examples (bolded portions are quotes from the Apple trade dress complaint):
A rectangular product shape...
... A rectangle needs to have parallel sides; the GSIII sides aren't straight at all. The outmost part is about 1/3rd of the way down, with serious curves leading to the top and bottom. So it's very much not a rectangle, or a rounded rectangle, or even horizontally symmetrical. It's more of an amorphous blob.
...with all four corners uniformly rounded;
Nope. The top and bottom corners are not the same shape. Observe the outlines of the top-left and bottom-left corners. Note how they are different.
The front surface of the product dominated by a screen surface with black borders
Having a giant screen on the front is kind of unavoidable. The only colors available though, are white and dark blue. Neither of those colors are black. The lawyers can sleep easy.
Substantial black borders above and below the screen having roughly equal width
Apple's use of "roughly" is really obnoxious, but just in case they get into minutia (lawyers love minutia!), the top and bottom borders are not the same size. These to-scale measurements show the top bezel is about 16% smaller than the bottom. Also, they're not black!
In the past, some people have argued that this sort of thing is an example of intellectual property doing its job and encouraging innovation, because competitors come up with new and different ways of doing things—but, as we have pointed out, the innovation being encouraged is the wrong kind. Instead of letting market demands dictate what engineers and designers spend their time on, their effort is wasted reinventing the wheel over and over again. The result is often an inferior product that lacks overall vision, as some are saying about the S3, at least aesthetically speaking. If a camel is a horse designed by a committee, what's a horse designed by a committee of lawyers? Some horrific Darwinian accident from the deep ocean, I'd wager.
by Mike Masnick
Wed, Apr 18th 2012 7:55pm
from the failed-companies-litigate dept
Some of you may remember Openwave as a company that helped get WAP browsers on lots of phones, and sold services and WAP gateways back in the early days of the mobile internet. Of course, Openwave then failed to innovate, failed to keep up with the changing market, and became pretty obsolete. But rather than just go out of business, it's gone full-on patent troll. Amusingly, the company is pitching this as "a major milestone." Yes, it's a "milestone" that instead of just failing and shutting down, you're now going to shake down other more innovative companies.
CEO Mike Mulica said in the company's announcement that the sale to Marlin marked a "major milestone" in its new corporate strategy. Mulica has been a major driver of the patent initiative since he took his post last October.The company already started down this road last year by suing both Apple and RIM -- but it sounds like such activities are going to expand.
"As we complete the sale of our product businesses, we will continue to focus on a multi-pronged strategy to realize the value of our unique patent portfolio," Mulica said.
by Mike Masnick
Tue, Mar 20th 2012 2:27pm
from the economic-reality dept
That seems like a rather simplistic analysis. Patel is right that many companies are "designing around" these overly broad and somewhat silly patents, and so it doesn't mean that Android phones aren't available. But that doesn't mean that there's no real impact on consumers. While it can't be quantified directly, there are numerous ways in which these patents are likely impacting the results. First, there's a matter of cost. The legal fights over patents are quite expensive, and that's almost certainly keeping prices on these devices somewhat higher than they might otherwise be. Second, the money and time it takes to do that "designing around" potentially slows the development of these phones. Third, those same resources could have been put elsewhere, working on additional innovations that would make the phones better and more valuable. Instead, they're forced to reinvent the wheel without doing the same scrollback or slide to unlock. Finally, while some will claim that forcing these companies to invent around the patents can lead to new innovations, there's little evidence to support this claim. Certainly it might happen accidentally, but letting developers come up with new innovations based on their own experiments and what the market tells them is always going to be more efficient than stumbling on some innovation because you're trying to avoid the artificial monopoly of a patent.
Of course, this is one of the difficult things in discussing the problems of the patent system. People insist they can't be that bad because these devices are still on the market. It's difficult to see or even explain the innovations that we don't have because of this, or even to show how the pace of innovation is almost certainly slower because of this, but that's exactly what plenty of research has shown for years. No one says that innovation stops completely because of patents, but we have significant concerns about how they impact the overall pace of innovation, as well as the specific direction of innovation. While it might not seem to have a "day-to-day impact on the consumer," chances are it's having quite a large one. We just can't see how big.
by Mike Masnick
Thu, Mar 15th 2012 2:38pm
from the siri,-why-do-people-mock-lawyers? dept
by Derek Kerton
Fri, Feb 17th 2012 12:01am
from the cellular-operators-losing-the-battle-for-connected-devices dept
When the LTE iPad hits the market, expect to see it sold with a "shared data plan", or a plan that is connected to a smartphone plan, and share a common pool of MB of traffic per month. Verizon, in particular, has hinted that just such plans will be emerging soon. Lowell McAdam said in December that such plans would emerge "sometime in 2012" to accommodate the increasing number of people with multiple mobile Internet devices. Such devices include smartphones, laptops, tablets, and others. More and more, subscribers are adding devices, and are getting frustrated at having to open a separate account, with a ~$50/month price, just because they choose to browse on their tablet instead of their smartphone. Most customers, rightly, assume that it should make little difference to the operator whether they access the net on their tablet, laptop, or phone. This is just a substitution of the access device. Because of the current punitive billing, owners of multiple connected devices are defecting from the cellular game, and instead opting to use Wi-Fi only on laptops and tablets...and liking it!
Research from The NPD Group has shown how the attach rates (portion that sign on to cellular service) for cellular-ready tablets have been less than stellar, and decreasing over time. In April 2011, NPD says that 60% of tablets only connected via Wi-Fi, but by December 2011, that number had jumped to 65%, showing how Wi-Fi has been winning out over the more expensive and contract-laden cellular offerings. Tablets like the Kindle Fire are sold as Wi-Fi only, contrasting with the earliest Kindles which all had cellular radios embedded. The carriers are at extreme jeopardy of losing the connected device market (and embedded market and M2M) simply because they have lagged in offering the kinds of flexible plans that make sense.
Once a trend away from cellular connection takes hold, it becomes harder to stop. Wi-Fi networks will respond with increased capacity and increased hotspots, OEMs will respond with more Wi-Fi-only devices, and consumer behavior will respond by considering tablets as "portable" Wi-Fi devices, not fully mobile like smartphones. The strategic cost to the carriers is significant. While the trend won't be stopped, it is certain that carriers could retain significance by offering pooled data plans at sensible bundled prices. This means selling data to a consumer, not to a consumers specific device. And what better way to launch such a new pricing plan than with a device that the market has proven to love - a new iPad?
So whatever the shape of the new iPad, and the fantastic new features that fanbois laud while naysayers explain how they were just repurposed from other devices, we should fully expect an LTE iPad with a new kind of cellular pricing model, which drives up the attach rate, increases device utility at a reasonable price, and creates greater carrier loyalty and long-term gains. If Verizon and AT&T do this right, we could all win.
by Mike Masnick
Tue, Nov 8th 2011 8:14am
from the kill-the-messenger dept
The obvious implication: don't search for security vulnerabilities in Apple products, and if you do find them, keep them to yourself.
First off, here's Miller explaining the security hole:
“I’m mad,” he says. “I report bugs to them all the time. Being part of the developer program helps me do that. They’re hurting themselves, and making my life harder.”And, no, this is not a case where he went public first either. He told Apple about this particular bug back on October 14th. Either way, this seems like a really brain-dead move by Apple. It's only going to make Apple's systems less secure when it punishes the folks who tell it about security vulnerabilities.
by Mike Masnick
Wed, Nov 2nd 2011 4:40am
from the don't-stop-'til-you-get-enough dept
The real issue here isn't just that Apple was able to patent something as simple as "slide to unlock," but how it shows the evils of double patenting and the use of continuation patents. We've pointed to problems with continuation patents in the past, in that they have been used to "submarine" legitimate inventions. You could just watch what others were doing in the space, and file a later "continuation" patent on your earlier patent, and have an earlier priority date, despite actually copying the work from others.
The M-CAM document linked above looks deeply at the patents in question, noting how the claims in Apple's original patent were completely rejected three separate times. For whatever reason, the USPTO refuses to really issue final rejections. So those desiring patents, can just keep adjusting and adjusting. The document also is left wondering how come the original claims were rejected while the final claims somehow made it through, noting that the changes seem meaningless:
M-CAM's analysis highlights the massive failure of the USPTO examiner here:
First, there are over eight hundred relevant patents that precede the ‘721 by a year, that both Apple and Mr. Gutierrez fail to cite, though 38 of these are owned by Apple themselves. The entities in this relevant space are displayed visually to the right.In other words, this patent never should have been granted, and it used the almost always questionable "continuation" process to patent something fairly common, with lots of prior art. Good thing the patent reform bill that recently passed doesn't touch on any of this stuff.
In addition, we have a list of 120 related patents, with priority dates of a year before both slide-to-unlock patents, that are in the public domain (read: this technology is FREE TO USE and NOT PATENTABLE AGAIN). A sample of these can be found in Appendix A.
But we’re not done. Going back to the patents the examiner used as evidence to reject the claims of the ‘721 patent – the Tokkonen patent, which is owned by Nokia, and the Gauthey patent, which is owned by Asulab (the R&D division of Swatch Group) – we see that they both deal with either inputting a security code or controlling lock functions. We look at one patent that is never acknowledged by Apple (though it’s been cited by IBM, Microsoft and Nokia in their touch-screen patents), U.S. 6,209,104 which actually provides context for the innovations that the examiner thought to be relevant against Apple – patents that include but are far from limited to the patents the examiner actually considered.
by Mike Masnick
Fri, Oct 21st 2011 7:39pm
from the doesn't-computer dept
Walter Isaacson's authorized biography of Steve Jobs offers an unprecedented look at the Apple co-founder's battle-cry against Google, a company he thought was guilty of a "grand theft" when it launched its Android operating system, which competes directly with the iPhone and has surpassed it in popularity.This is coming from Steve Jobs, who was inspired by the graphical user interface he saw at Xerox PARC and turned that into the Macintosh. Now, as we've noted before, what Jobs was always great at doing wasn't just taking an idea and copying it, but making it better. But, many would argue that's the same thing that Google has done with Android. Yes, they clearly took inspiration from the iPhone, but there are some key differences, which many people enjoy. In fact, Steve Jobs pretty much admitted this very fact earlier this year when some of the iPhone's upgrades appeared to be copied directly from Android.
"I'm willing to go thermonuclear war on this," he told Isaacson of the patent lawsuit Apple filed against cell phone manufacturer HTC.
In Isaacson's "Steve Jobs," a copy of which was obtained by The Huffington Post, the author recalls that Jobs, who was known for his fierce temper, "became angrier than I had ever seen him" during a conversation about Apple's patent lawsuit, which by extension also accused Android of patent infringement.
"Our lawsuit is saying, 'Google you f***ing ripped off the iPhone, wholesale ripped us off,'" Jobs said, according to Isaacson. "I will spend my last dying breath if I need to, and I will spend every penny of Apple's $40 billion in the bank, to right this wrong. I'm going to destroy Android, because it's a stolen product."
And that's kind of the point: part of the way innovation works is that you build on the works of others. That doesn't just mean wholesale copying, but trying to take what works and improve on it -- or take what doesn't work well and figure out a way to make it work better. Steve Jobs did this many, many times, but so have Google and many other companies. It seems rather hypocritical to get all bent out of shape because others are doing the same thing.
Along those lines, Daring Fireball links to a wonderful discussion on this topic by designer Brian Ford, who discusses the idea of "artists copying or stealing" from one another.
Apple didn’t invent the iPod, they stole the idea and made the music industry their own. The way we buy and listen to music is now shaped almost entirely by Apple’s vision.I completely agree with those points. It's quite similar to an earlier post we did about the importance of getting it right rather than being first, which pointed to a wonderful comic from Scott Meyer's Basic Instructions that included this panel:
Apple didn’t invent the smartphone, they stole the idea and reshaped the industry in their own vision. Yes, Apple has “copied” bits and pieces of iOS from other sources —notifications is the obvious example — but overall, the future of the mobile industry has been shaped by Apple.
Apple didn’t invent the tablet computer, they stole the idea and now iOS is the template for the tablet market.
In the end, the best way to sum all this up comes from the T.S. Eliot quote that Ford puts at the end of his blog post. Many people have heard the paraphrased version (often copied and attributed to others) that "good artists copy, great artists steal." But the full T.S. Eliot quote is much more interesting and nuanced:
One of the surest tests [of the superiority or inferiority of a poet] is the way in which a poet borrows. Immature poets imitate; mature poets steal; bad poets deface what they take, and good poets make it into something better, or at least something different. The good poet welds his theft into a whole of feeling which is unique, utterly different than that from which it is torn; the bad poet throws it into something which has no cohesion. A good poet will usually borrow from authors remote in time, or alien in language, or diverse in interest.
Fri, Sep 16th 2011 4:43pm
from the don't-cross-invisible-lines dept
On top of all those themes, the game was to be released on the very platform it criticized: the iPhone.
It didn't last long on the platform.
Just hours after being approved, Apple yanked it from the app store for four separate violations.
15.2 Apps that depict violence or abuse of children will be rejectedThe key story going around the internet is that Apple is silencing a critic of its platform and business practices, and it's just using the iOS guidelines as a tool to do so.
16.1 Apps that present excessively objectionable or crude content will be rejected
21.1 Apps that include the ability to make donations to recognized charitable organizations must be free
21.2 The collection of donations must be done via a web site in Safari or an SMS
Let's put that aside and focus on something a little different: Apple's arbitrary code enforcement. According to Molleindustria:
I'm very familiar with the App Store policy, and the game is designed to be compliant with it.If Molleindustria took the extra effort to be compliant, how did they end up breaking those above rules? It's hard to say as even Molleindustria doesn't quite know.
If you check the guidelines, Phone Story doesn't really violate any rule except for the generic 'excessively objectionable and crude content' and maybe the 'depiction of abuse of children'. Yes, there's dark humor and violence but it's cartoonish and stylized - way more mellow than a lot of other games on the App Store.
Rules 21.1 and 21.2 are the easy ones to counter. Molleindustria did pledge that all proceeds from the app sales will be going to charity, but that is not done in the app itself. That is Molleindustria giving away the 70% of sales it earns to a charity. It was not asking any buyers to donate to a charity in the app or even outside the app. I guess Apple just didn't want to be part of the charitable aspect.
Rule 15.2 might be a sticking point. Molleindustria admits:
a new version of Phone Story that depicts the violence and abuse of children involved in the electronic manufacturing supply chain in a non-crude and non-objectionable way... will be a difficult taskYet, is depicting near real life conditions of child labor really objectionable? Would a news app reporting on child labor and showing a video of children in the working environment get a pass? Or is the problem that such a depiction is interactive in this case? It isn't like this game is a baby shaker app or anything. The child abuse depicted has an editorial purpose.
Finally, we come to Rule 16.1. Of the four, this rule is probably the most frequently broken by app developers as it is completely subjective by nature. What one app reviewer finds objectionable another would not. In this case, an app reviewer did not find the app objectionable or crude, but someone in Apple's leadership did. How is an app developer supposed to know what people they don't know find objectionable? I know many people who think the various "fart apps" or pimple popping apps on the app store are crude, and many others who think they are funny.
In Apple's case it is a matter of "it knows it when it sees it." Not really the best course of action.
Apple is no stranger to controversy over its arbitrary code enforcement. The first few years of the iPhone's life were rife with stories about apps being banned for doing nothing more than connecting people to content that is freely available online via the Safari browser. For that reason, it really comes as no surprise at all that it would attempt to silence a critic using arbitrary code enforcement.
There is also the possibility that Apple just doesn't think that Molleindustria is a professional satirist. The guidelines actually do have a code in place to allow such "professional satire" to skirt those other rules:
14.2 Professional political satirists and humorists are exempt from the ban on offensive or mean-spirited commentarySo what is it Apple? Is it okay to be mean spirited in our commentary as long as Apple is not the target? I guess so.