A patent fight against Android, or “Look and Feel 2.0?”

I’ve been reading—and trying to follow, with only limited success—the various fights going on between Apple and various companies, and there seem to be three categories of fights.

  1. The typical fight between big companies, such as the (now concluded) one between Nokia and Apple. These are usually based on fairly technical patents “invented” by the companies in question and about who has or has not licensed them. These suits are fairly close legal reflections of what the patent system is supposed to protect in the first place. (In this industry these are likely to be software patents, hence the air quotes around “invented.” I’m not 100% against software patents, but I’m approaching 99%.)

  2. The submarine patent battle. This is typified by Intellectual Ventures’ shell companies and just about anyone who does business in East Texas courts: a company obtains the rights to a patent from years past, usually one that has never been put into an invention but can be read as successfully “predicting” something in widespread use now. Lodsys’ patent on in-application upgrades is in this camp.

  3. The look-and-feel fight. It’s back!

The second one is interesting in its own right—in the way Cthulhu is interesting—but I’m thinking about the third one today.

The whole battle in the mobile space is pitched as a fight between Apple and Android, and Apple is taking some hits for making this a legal fight rather than “letting the marketplace decide.” (I have so many problems with that phrase, but that’s another show.) But Apple isn’t suing over Android, per se—they’re suing over design elements, or “trade dress.” This is not about Samsung (or Google) infringing on some kind of obscurely-worded method patent, it’s about Samsung making phones and tablets deliberately confusable with Apple’s products.

It’s easy to dismiss Apple’s suits out of hand with observations about how such-and-such is the “obvious” way to do a given task. But many things weren’t “obvious” until someone started doing them. Apple didn’t invent touch screen mobile devices but there’s no phone you can hold up as an example of something that the iPhone “copied” wholesale. Even so, it’s hard not to recall that Apple was on the losing end of the computing industry’s most famous “look and feel” lawsuit, Mac OS versus Windows 2.0. Are they really up for another round? Didn’t they learn the last time?

Well, maybe this is different. The suit against Microsoft was a copyright infringement lawsuit, which failed on several grounds. You can’t copyright an idea, only a concrete expression of the idea. Also, the lawsuit fell apart due to licensing: Apple had licensed many GUI components to Microsoft for Windows 1.0, and had licensed many of its GUI components from Xerox. Apple argued that the whole is greater than the sum of its parts, but the court ruled that didn’t matter—contracts is contracts. In this case, though, there are no existing contracts, and this concerns design-related IP and patents rather than copyrights. Apple still believes that the whole is greater than the sum of its parts—but this time around they’re going to go after the parts.

These are not “patent troll” lawsuits. These focus on what makes a hardware/software combination distinct enough to be legally protected. How close can a Samsung phone be to an iPhone, or a Motorola tablet to an iPad, before Apple is within their rights to force them to back off? Clickable application icons are obvious. When you present those icons in a 4×4 grid with a bottom row of four icons that remains “docked” while the top grid scrolls to the left and right to reveal more application pages whose existence is shown by the presence of “navigation dots,” is that getting too specific?

Even so, I’m not sure I’m on Apple’s “side,” both as someone who doesn’t like software patents in general and as someone who generally likes Apple’s products. Filing injunctions over the Galaxy Tab 10.1 and the Xoom on design-related grounds suggests Apple thinks that Samsung and Motorola have created tablets that could be confused with the iPad. Seriously? Has anyone in Cupertino actually seen a Galaxy Tab or a Xoom?

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