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"Design patent!" - are they causing problems for software?

"Design patent!" - are they causing problems for software?

Posted Nov 17, 2012 13:08 UTC (Sat) by coriordan (guest, #7544)
In reply to: "Design patent!" by pboddie
Parent article: Apple Now Owns the Page Turn (New York Times)

I don't follow the news about litigation between the megacorps. I know that design patents cause problems for manufacturers of hardware such as tablets, but are they causing problems for software developers?

This design patent certainly sounds like it could cause problems for software developers, but it depends on how much scope judges generally give to design patents. I mean, every pair of scissors has a design patent or "patent pending" stamped somewhere, but that doesn't stop thousands of companies from making scissors. In the household utensils world, design patents are only as broad as copyright - a product would have to be pretty much an exact copy for anyone to have a case.

Are design patents like that for software, or are they posing real problems?


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"Design patent!" - are they causing problems for software?

Posted Nov 17, 2012 16:19 UTC (Sat) by Wol (guest, #4433) [Link]

A design patent SHOULD be just part of trade dress. I think it's an American thing - the UK equivalent is "Registered Design".

And the UK legal standard is very clear - if an *informed* consumer would not be fooled, then there is no infringement. Basically, the likeness has to be so extreme as to seem intended to fool the consumer.

It makes sense - if a customer is tricked into buying the wrong product it's fraud. Which is why Judge Birss's comments in Apple vs Samsung were so pleasant to read - "Samsung's Galaxy isn't as cool ... Case Dismissed!!!"

Not that I agree with his idea of coolness, but it was very much "no observant customer would be fooled, so what the f... are you doing in my courtroom!".

Cheers,
Wol

"Design patent!" - are they causing problems for software?

Posted Nov 18, 2012 16:46 UTC (Sun) by drag (subscriber, #31333) [Link]

If the consumer is tricked by trademark fraud to buying a non-Apple product then it's the consumer that is defrauded, not Apple. It should be then up to the consumer to seek damages against the fraudulent corporation.

Ergo.. if a individual purchases a Samsung Galaxy phone because Samsung deliberately mislead the customer into thinking it was a Apple product then Samsung should be forced to refund the purchase and compensate the consumer for any damages caused by fraud to the consumer. Apple has no damages here.

They way trademark law or "design patent law" is setup now is really ass-backwards. Fraud that tricks the customer into purchasing a product from a company they didn't want to purchase from is a crime against that individual; not against the rival corporation.

The only logical way that Samsung could really damage Apple is by releasing shoddy products masquerading as Apple products with the intent of ruining Apple's reputation. Since you do not 'own' your reputation as it is a something that exists in the minds of other people, proving damages is should be extraordinarily difficult.

The way it is set up now smacks as the evil corporate/government/fascist mentality that people are the products. That we are 'consumers' that are products the products that are to be bought and sold to the mega corporations. This is something that everybody needs to learn to reject completely.

"Design patent!" - are they causing problems for software?

Posted Nov 19, 2012 17:46 UTC (Mon) by admax88 (guest, #75035) [Link]

If customers are fooled into buying the wrong product, and it would harm the image of the real product, as well as make people more wary of buying the real product for fear of being ripped off.

If someone thinks they're buying the an iPad2 and they actually bought shiity iPad2 knockoff as made by some company you've never heard of in China, they'll probably thing "wow the iPad sucks! I'm never buying another Apple product." This hurts Apple even though they did nothing wrong. By letting them go after people who try to fraud their customers, the customers get protected and Apple's brand gets protected.

Now when they abuse this position to try to monopolize something stupid like rounded corners or page turning animations then obviously its bad for the customer and should be illegal.

Do you really believe that customers who got defrauded are going to actually take the time to sue the fraudsters? Many of them might not even know they were defrauded and the remainder would probably just cut their loses and move on.

"Design patent!" - are they causing problems for software?

Posted Nov 19, 2012 18:52 UTC (Mon) by drag (subscriber, #31333) [Link]

> If customers are fooled into buying the wrong product, and it would harm the image of the real product, as well as make people more wary of buying the real product for fear of being ripped off.

Yeah. So it's the customer that has the problem and is the one that should have restitution.

I fully support the notion that is somebody was fooled into buying a Galaxy S3 because they thought it was a Apple iPhone they should be refunded, for example, if they can get a judge to agree that Samsung tried to fool them on purpose.

> If someone thinks they're buying the an iPad2 and they actually bought shiity iPad2 knockoff as made by some company you've never heard of in China,

Or, going back to what actually happens in reality: when they call Apple customer support to complain and Apple informs them they were ripped off they would be pissed off at the people that ripped them off.

> This hurts Apple even though they did nothing wrong.

No it doesn't. Or it is extremely unlikely that it did and is even harder to prove. This is why the law is ass-backwards. The consumer is the only one that has any obvious damage from fraudulent sellers.

What if the consumer actually WANTED to buy a Apple knock-off? What if they wanted to look as if they paid 500 dollars on a phone, but in fact paid about 150? Why is that illegal? How is that 'protecting' the consumer?

The answer is, of course, it doesn't help the consumer at all.

The logic needed to defend the current IP regime is very wormy indeed.


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