However, they may have designed its external appearance, and this may be enough to prevent Apple from enforcing its alleged intellectual property rights in relation to the physical appearance of its latest tablet.
As is being widely reported today (e.g. in the Fairfax press here in Australia, and on the FOSS Patents blog), Samsung has offered a still image, and a YouTube clip, from Kubrick’s film in its defence of a US ‘patent’ lawsuit brought against it by Apple. There has been some confusion, however, due to the fact that in the US there are three kinds of ‘patents’. The familiar ‘utility patent’ protects functional inventions, while the ‘design patent’ protects physical appearance. The third type of patent is a ‘plant patent’ which protects new plant breeds.
Here in Australia, as in many other countries, we avoid this confusion by calling our equivalent to the ‘design patent’ simply a ‘registered design’.
Since registered designs (or design patents) protect appearance, you cannot have a valid and enforceable registration for something which looks the same as, or too similar to, a previously-existing article. There is no reason why such a prior article should need to be functional. For example, you would not be entitled to protect a design for a working car that had simply been copied from an earlier clay model, or non-functional ‘concept’, that had been created by someone else. Indeed, by doing so you would most likely be infringing their copyright.
This is the situation in the Samsung defence. If Apple cannot actually claim credit as the original designer of the slimline form of its iPad2 tablet, it cannot maintain a valid design patent registration. If the court finds that the Space Odyssey tablets are sufficiently simialr in appearance to Apple’s design, it will be of no avail for Apple to object that the movie tablets are fictional. The props were most likely real – though, presumably, non-functional.
In Australia, the iPad2 design is the subject of Australian Design Registration no. 337931, an image from which is shown below.
The dashed lines in this image are intended to represent features which Apple claims are not distinctive elements of the design. The registration includes a statement that ‘distinctiveness resides in the features of shape shown in the accompanying representations by solid outline lines and by solid shade lines, which show contour.’
The Australian design registration has not yet been examined and certified as enforceable, so Apple cannot currently deploy it against Samsung in this country.
If Apple does request examination of the design, we are confident that Samsung will send the examiner a free DVD copy of 2001: A Space Odyssey!