How media got the biggest bite of (the) Apple: a look at the media misperception in the Apple-Samsung case.

Author:Pathak, Neha
  1. INTRODUCTION II. BACKGROUND OF THE CASE III. ANALYSES OF THE PATENTS AT ISSUE A. Design Patents B. Utility Patents 1. Apple's Patents at Issue in the Apple-Samsung Trial 2. Preliminary Invalidity of the Patents Based on Prior Art References IV. MEDIA'S TAKE ON PATENTS A. Design Patents 1. Confused Analysis 2. Correct Analysis B. Utility Patents 1. Confused Analysis 2. Correct Analysis C. What Drives this Popular Perception? V. WHY IS THIS RELEVANT? A. Media's Effect on Criminal Law B. Media's Effect on Patent Law 1. Three Ways that Media Misperception Can Adversely Affect Patent Law 2. What Can Be Done to Correct these Misperceptions? VI. CONCLUSION I. INTRODUCTION

    "Apple v. Samsung: [t]he [p]atent [t]rial of the [c]entury." (1) If the preceding sentence generated thoughts about your phone, it is because there is a 50% chance that the phone you own is made by one of these parties. Together, Apple and Samsung sell over half of the world's smartphones. Thus, the Apple v. Samsung ("Apple-Samsung") trial was followed, at least on a superficial level, by most Americans. For most of us, the Apple-Samsung trial paints a picture of a courtroom where attorneys on both sides are arguing over rectangles, and gestures such as pinch-to-zoom. This is because such a narrative was created by the numerous technical and mainstream media outlets that extensively covered the trial. While all of these outlets covered the trial proceedings, only a handful accurately communicated the details of the patents at issue.

    This Comment focuses on the implications that media misperception in the Apple-Samsung case can have on patent law. Section II of this Comment provides a background of the issues in the Apple-Samsung litigation. Section III analyzes the Apple patents that are at issue in the Apple-Samsung litigation, and discusses the prior art references considered by the United States Patent and Trademark Office ("USPTO"). Section IV discusses media's interpretation of the patents, and where these misperceptions come from. Finally, Section V describes how media's misperception has affected various areas of law, and the implications it can have on patent law.


    On April 15, 2011, Apple sued Samsung in the United States District Court for the Northern District of California. (2) Apple claimed that Samsung infringed its design patents and utility patents in twenty of Samsung's devices. (3) In return, Samsung filed a countersuit claiming that Apple infringed ten of its patents. (4) After over a year of proceedings involving several motions, depositions, and injunctions, (5) the case finally reached a jury trial stage in late July 2012. (6) After three weeks of trial proceedings, the jury found that Samsung had infringed on six of the seven patents (7) and granted a $1.05 billion verdict in favor of Apple. (8) However, the presiding judge recently reduced the awarded damages down to $4.5 million, finding that the jury award was based on "Samsung's profits, which is an impermissible type of compensation for utility patent infringement." (9)

    Apart from the jury trial in the United States, Apple and Samsung commenced patent litigation elsewhere in the world. (10) While Apple won the battle in the United States, Samsung won the battle in Japan, (11) Australia, (12) the United Kingdom ("UK"), (13) and the Netherlands (14) where the respective courts found that Samsung did not infringe on Apple's patents. On the other hand, a South Korean court found that both Apple and Samsung infringed on each other's patents and banned the infringing products from shops in the country. (15)


    Patents are defined by the USPTO as "[a] grant of property right that [it] issue[s] to the inventor." (16) Of the three types of patents - utility patents, design patents, and plant patents - that are issued by the USPTO, only design patents and utility patents were the subject of litigation in the Apple-Samsung case. A utility patent protects the way an invention functions, (17) whereas a design patent protects the way an invention looks. (18) A design patent is limited to protecting the "new, original[,] and ornamental design for an article of manufacture," (19) and cannot encompass features that are primarily functional. (20) Because a design patent is issued based on appearance, the application includes a single claim, (21) followed by a series of illustrations that convey the design of the article to the examiner. (22) Conversely, a utility patent usually has multiple claims where each claim discloses the invention, which the applicant seeks to be protected. (23) Because the nature of a utility patent is visually less interesting compared to design patents, the exact function claimed in a utility patent is harder to comprehend.

    1. Design Patents

      The design patents at issue in the Apple-Samsung case include Patent Nos. US D618,677 S ('677) and US D593,087 S ('087) covering the iPhone design; (24) Patent No. US D504,889 ('889) covering the iPad design; (25) and US D604,305 ('305) covering the graphical user interface for the iPhone. (26) In the above illustrations, only the design in solid line is claimed. The dashed lines, seen around the edges of the iPhone figures, are what the inventor is disclaiming from the patent. This means that the overall design of the iPhone is claimed, and not just the rounded rectangles separately. However, in the iPad patent, the inventor is not only claiming the overall design of the tablet but also the shape of the iPad, the rounded rectangle itself.

    2. Utility Patents

      1. Apple's Patents at Issue in the Apple-Samsung Trial

        Amongst the disputed utility patents, Patent No. US 7844915 ('915) on the "application programming interfaces for scrolling operations" (27) has been at the forefront in the ongoing litigation. (28) This software patent distinguishes one finger touch applied to the display screen from multiple touch points. (29) Moreover, the only claim at issue was claim 8 of the patent. (30) This claim protects any storage device such as "a phone" that performs the following method: (31)

        the user touches the screen; (32)

        the program is started by creating an event object in response to the input; (33)

        the program determines whether it is a scroll or a gesture by determining if the user has placed one finger on the touch screen, or two or more fingers; (34)

        based on the number of fingers, the program issues instructions for either a scroll or a gesture; (35)

        if the phone detects one finger, the user is taken to the desired view by scrolling through the window; (36)

        if the phone detects to or more fingers, the program "scales the view," which has the same effects as zooming. (37)

        While the '915 Patent does not protect the "pinch-to-zoom" feature of an iPhone, Apple does have a limited software patent for the "pinch" feature. (38) Patent No. US 7812826 ('826) on "[p]ortable [electronic [d]evice with [m]ulti- [t]ouch [i]nput" covers the following method: (39)

        a multi-touch display screen detects at least two contacts resembling a multi-touch gesture; (40)

        the gesture adjusts the image in accordance with the motion of the contacts; (41)

        the first set of contacts is broken, and the device detects a second set of at least two contacts; (42)

        these contacts perform another gesture within a pre-determined time interval after the breaking of the first set of contacts (emphasis added) to adjust the image in accordance with the motion of the second set of contacts. (43)

        The patent specifically claims the magnification, (44) orientation, (45) rotation, (46) and de-pinching (emphasis added). (47) The reason that this patent is limited is because Apple does not have a patent on the gesture of "pinch-to-zoom" but instead has a patent on "pinching to zoom, and then pinching to zoom again within some fixed period of time." (48) The patent does not define what that fixed period of time is. This patent does give Apple limited ownership over the "pinch-to-zoom" gesture; however, it was not in dispute at the trial because Apple did not assert it.

        There were two other utility patents in dispute at the Apple-Samsung trial. Claim 50 of the US Patent No. 7864163 ('163) covered "tap-to-zoom" feature. (49) Under '163, the user taps once to zoom in and taps twice to zoom out. (50) While this claim does cover a method of zooming, it does not cover the "pinching" gesture. The other patent in dispute was claim 19 of US Patent No. 7469381 ('381) covering inertial scrolling and the "bounce-back" effect. (51) The "pinch" gesture is not covered in any of the 20 claims of '381. Claim 8 of '915 patent, which was misinterpreted as covering the "pinch", covers the programming interface for gestures that include "pinch-to-zoom," "tap-to-zoom," and inertial scrolling; it does not, however, cover the pinch-to-zoom gesture itself. (52)

      2. Preliminary Invalidity of the Patents Based on Prior Art References (53)

        Post-trial, the '915 patent was preliminarily invalidated by the USPTO through an ex parte reexamination. (54) Claim 8 of the patent, which was at issue, was tentatively rejected under two grounds. (55) The first was under 35 U.S.C. [section] 102(c) as anticipated by US Patent No. 7,724,242 ('242). (56) It was also rejected under 35 U.S.C [section]103(a) as unpatentable over Japanese Pub. No. 2000-163031A ("Japanese Patent") and in view of a 1991 paper, titled "The Automatic Recognition of Gestures," authored by Dean Harris Rubine ("Rubine"). (57)

        The '915 patent was preliminarily invalidated because it was anticipated by the '242 patent and hence, negated novelty. (58) The '242 patent protects a "touch driven method and apparatus to integrate and display multiple image layers forming alternate depictions of the same subject matter." (59) As noted by the patent examiner in the office communication, the written description of the '242 Patent discloses a device that performs a method similar to that of...

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