During this eventful week on the patent litigation front I didn't find the time to comment on Google VP David Lawee's sideswipe at Apple, saying in a Bloomberg TV interview that Google "didn't know rounded corners were patentable". While I've consistently argued that much higher patent quality is needed, I'd like to take a look at the actual patent infringement claims with which Apple prevailed on its smartphone design patents at the recent trial. Let's perform a claim check.
Unlike utility (i.e., techical) patents, design patent documents (at least the ones I've seen) contain images and not verbal claims. While courts may perform claim construction, they usually try to avoid it. But Apple itself provided the equivalent of a verbal design patent claim when it made its infringement allegations against some of Samsung's smartphones. Here's why, according to Apple's July 2011 motion for a preliminary injunction, those phones infringed on Apple's smartphone design patents (click on the image to enlarge or read the text below the image; emphasis of "rounded corners" is mine):
"Closely comparing Apple's patented design with Samsung's products reinforces the conclusion of substantial similarity. Samsung copied every major element of Apple's patented design:
a flat, clear, black-colored, rectangular front surface with four evenly rounded corners [emphasis mine];
an inset rectangular display screen centered on the front surface that leaves very narrow borders on either side of the display screen and substantial borders above and below the display screen; and
a rounded, horizontal speaker slot centered on the front surface above the display screen,
where the rectangular front surface is otherwise substantially free of ornamentation outside of an optional button area centrally located below the display."
The above proves that Apple did not sue Samsung just because its devices have rounded corners. Instead, Apple claimed (and the jury agreed) that a combination of multiple claim elements is covered by its smartphone design patents and was infringed by Samsung.
That fact, however, did not prevent Samsung from saying in its official statement on the verdict that "[i]t is unfortunate that patent law can be manipulated to give one company a monopoly over rectangles with rounded corners". Google now takes Samsung's spin even further by omitting the rectangular shape. But if you look at the infringement contention further above, there are lots of specifications in it that go beyond a rectangular shape and rounded corners.
The real issue with Apple's design patents is not that they monopolize individual characteristics such as rounded corners. The problem is that since Apple's design is intentionally minimalistic, the impression-of-ordinary-observer test can, if misapplied by a judge or a jury, result in an overbroad idea of what the patent covers, but that's a misapplication that Apple's infringement contention certainly didn't create or even nurture.
Mr. Lawee's suggestion that Google was just too noble to take out patents, and/or lacked information, is belied by the fact that Google's founders had a patent before they had a company, and they raised money largely based on the patent before they even had a business plan in place. I addressed this in a post more than a year ago.
Here's claim 1 of that patent, the so-called PageRank patent (U.S. Patent No. 6,285,999, with emphasis added every time it referred to linked (and, conversely, linking) documents:
1. A computer implemented method of scoring a plurality of linked documents, comprising:
obtaining a plurality of documents, at least some of the documents being linked documents, at least some of the documents being linking documents, and at least some of the documents being both linked documents and linking documents, each of the linked documents being pointed to by a link in one or more of the linking documents;
assigning a score to each of the linked documents based on scores of the one or more linking documents and
processing the linked documents according to their scores.
Linked (and, conversely, linking) documents are simply what the World Wide Web consists of. The Web existed a few years before the PageRank patent, and linked documents predate the Web by many years.
I'm not saying that Google did patent linked (and linking) documents. A more accurate description is that it covered a broad (maybe indefinite) range of algorithms that rank webpages based on the ranks of their external referrers. I don't want to deny that the description of the patent provides examples of embodiments that have more specificity than that. But the claims are always the most important part of a utility patent.
If the underlying "logic" of Google's allegation that Apple patented rounded corners is applied to the PageRank patent, there's actually much more of a factual basis for exaggerating its scope by asserting that it covers linked documents.
The preferable alternative to that approach is to have a more facts-based discussion, even though I do understand this is difficult for some people in the aftermath of a billion-dollar verdict.
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