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Glyn Moody's look at all levels of the enterprise open source stack. The blog will look at the organisations that are embracing open source, old and new alike (start-ups welcome), and the communities of users and developers that have formed around them (or not, as the case may be).

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Rotten to the Core

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Back in April, when Apple sued Samsung in the US, I noted that Apple's claims seemed pretty over the top - basically claiming that any rectangular tablet computer with rounded corners and a border was a copy of the iPad.

Well, things seemed to have escalated since then, with the battle being brought to Europe:

European customs officers have been ordered to seize shipments of Samsung's Galaxy Tab computers after Apple won a preliminary injunction against the Korean electronics giant in an acrimonious patent dispute.

Samsung on Wednesday said it would act immediately to lift the blockade, which prevents sales of its flagship tablet computer in the European Union, except the Netherlands.

Tens of thousands of Samsung Galaxy Tabs are thought to have been seized after the ruling late on Tuesday by a German patents court.

Actually, that report is not quite correct. In Europe, this is not a patent dispute, but an argument over something called a Community design [.pdf]. As Wikipedia explains:

A Community design is a unitary industrial design right that covers the European Community. It has both unregistered and registered forms. The unregistered Community design came into effect on 6 March 2002 and the registered Community design was available from 1 April 2003.

In the present case, that Community design [.pdf] consists of a drawing of a rectangular tablet with rounded corners and a border. That's it: it's as vague as a very vague thing can be, but apparently it's enough to get Samsung's tablet blocked in Europe because they, too, are rectangular with rounded corners and a border. Here's why:

The key problem here is that the drawings and/or photos in a Community Design are not actually reviewed. While a patent at the USPTO receives a review to check for obviousness and prior art, no such review process has been put in place for the Community Design. The only thing the governing body of the Community Design, the OHIM, checks for is that the paperwork is in order, and that the names on the filing are correct. If those two conditions are met, the Community Design is granted, no questions asked. This lack of a review process is established in EC 06/2002 (Title V, Articles 45 and 47), and clearly mentioned on the OHIM website.

This is problematic because of Section 2, Article 85 of EC 06/2002. Article 85 states that a Community Design is always, by definition, valid. This explains why the German court in Düsseldorf granted the injunction. He did not grant it because he made an informed decision based on the contents of the Community Design; he granted it because he has no choice but to accept the Community Design as valid. So when Apple showed him all the necessary documentation and paperwork was in order, and that the Galaxy Tab 10.1 has roughly the same shape as Community Design 003781832 (which was filed in 2004, and as such, doesn't even cover the iPad to begin with, but we'll get to that later), the injunction was granted automatically.

Curiously, the German ban seems not to apply to the Netherlands, where Apple and Samsung are slugging it in court again. And it's here that we begin to see the weakness of Apple's argument, as explained by the Dutch WebWereld publication (via Google Translate):

But when Apple has thrown in its designs and patents would be invalid because there are earlier examples of ( prior art known) Apple hammered it down on any "distinctive" detail.
That is hypocritical, Samsung's lawyers argued. Apple can not argue on the one hand, because that Samsung infringed its patents and designs are so generic, "that even include attacks on any digital picture frame" on the other hand, prior art to reject the most minute details.

Prior art, and making breach of the same size should be measured. This is the pincer effect "with which self-locking Apple, Samsung did. Is the measure which is 'generally' would infringe Samsung make, except that the patents are invalid and models from Apple, because there was prior art to be found. And the standard 'in detail', then the patent may be valid, but Samsung commits no breach of its devices because there are just different look and work.

What I think that means is this (another interpretation here). If Apple argues that Samsung is infringing on its Community design, Samsung points to prior art - there were certainly similar-looking tablets long before the iPad. Apple then says, but the iPad has different details, and so the prior art does not apply. To which Samsung retorts that it should be held to the same standard, and that it is the details that count. And here, the Samsung tablet is different from the iPad, so the Community design is not infringed upon. Essentially, Samsung is arguing that Apple cannot have it both ways: either it is the general tablet appearance that counts, or the details; but either way, Samsung is in the clear.

We shall have to see whether the Dutch judge agrees with that line of argument, and whether that then causes the German ban to be lifted. But I think there are two important issues here that are independent of what happens.

The first is the outrageousness of what Apple is attempting to do here. For it is not just attacking Samsung in Europe: it turns out that it is also suing Motorola there over alleged infringements on its design. It's clear, then, that Apple is seeking to stop any serious rival from making a tablet with rounded corners and a border. But as I and many others have pointed out, these are just characteristics of the category - which is why practically every tablet ever made (including all those before the iPad) have this form.

Apple is therefore not trying to “defend” the iPad, it is seeking quite consciously to monopolise the entire category of tablets. It's further evidence of Apple's greed - it's not as if it is struggling in this sector, so why does it need to bully everyone else that dares enter it?

This episode exposes not only Apple's increasingly rotten core, but something even more serious: the insidious nature of the Community design. For as this excellent exploration of the subject discovered, the Community design system is in some ways even worse that the patent system:

I'm browsing though Apple's Community Designs (enter 'Apple' at owner), and they have at least a thousand of them - the search results are limited to 1000. This is absolutely idiotic - while some of them are clearly Apple products, most of them are just generic designs, and in fact, Apple seems to iterate their Community Designs - starting with basic shapes, moving all the way up to photos of actual devices, with each iteration being a separate, enforceable filing! Many are truly and utterly generic - take a look at this one, or this, or this (a stretched black rectangle ffs!), or this (a folder icon!). Apple can sue pretty much ANY product maker with this. This is like a slumbering and unknown version of the USPTO!

The European Commission has created a monster here - one that most of us (myself included) didn't even know existed. Clearly, this horror needs slaying before it starts marauding through the entire European economy, wreaking havoc on a scale that makes today's patent litigation look like playground fistifcuffs.

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