Alex Hudock Engl 137H Professor Mazzant 18 December 2012 Are Design Patents the Stepping Stone to Monopolies?

For many technology enthusiasts, August 24, 2012 is a date that will live in infamy. No, its not as serious as Pearl Harbor, but it has changed the way technology giants compete with one another. On August 24, 2012, Apple finally achieved victory over Samsung in multiple patent lawsuits relating to Samsungs software and design elements found on many of their famous smartphones. In Apple may have won, but software patents are still evil, Mathew Ingram challenges courts to rethink the purpose of patents and how much credibility they should really possess. According to Ingram, wars over software and design patents are bad not just for individual companies but society as a whole. Although this is a bold statement, Ingram does an excellent job proving it by changing the general image of Apple, using smart diction to play on his readers emotions, and correlating Apples court victory to the eventual introduction of monopolies into an American capitalist society. For the purpose of this analysis, the terms software and design will be used interchangeably because they are so similar to each other and Ingram uses them interchangeably in his article. Before dissecting Ingrams article, the article itself must be discussed. Because the article is an editorial, it is inherently one-sided. Unlike a typical essay, editorials arent required to be fair arguments. They can be entirely one-sided and usually are. However, good editorials balance the authors voice with both facts and other peoples opinions, maintaining a balanced argument that is directed by the authors own intentions. Ingram does a great job touching on both sides of

Hudock 2 the argument. He relies more on facts and statistics instead of blanket statements, improving his editorial and removing its one-sidedness. The argument begins with a little background information. The case between Apple and Samsung featured Apple suing Samsung over software-related utility patents and four designrelated patents that targeted some of Samsungs most successful devices. Although Ingram goes into detail about each device involved and the patents in question, he does not include Apples explanations regarding the similarity between the designs. He doesnt do this because the information had already been readily available for a month and tech enthusiasts were already well versed in. He does, however, link to an article by Jon Brodkin posted earlier in April that lists both Apple and Samsungs evidence. In Brodkins article, Apples offense is first stated and then Samsungs defense follows. According to Apple, Samsungs smartphones developed after the success of the iPhone were of similar stature to the iPhone, featuring vertical rectangles with rounded-corners (Brodkin). Furthermore, Samsungs app icons were colorful rounded-corner squares aligned in a 4-by-4 grid joined to a 4-by-1 bottom dock bar, an almost exact copy of the iPhone (Brodkin). While clear similarities are found between the two companies, Samsung had their own defense that provided images of smartphones they developed prior to the iPhone that were of similar shape. However, the defense proved useless in Apples suit. After establishing a background on the case, Ingram dives into the topic of whether Apple actually suffered from Samsungs infringements. While Apple argued that it received irreparable harm from Samsung, Ingram argues that Apple hasnt suffered competitively considering the company is the worlds most valuable publicly-traded entity, with a market value over $600 billion (Ingram). Using facts allows Ingram to change Apples image. Instead

Hudock 3 of being an honest company seeking payment for patent infringement, Apple is represented as the big, power-hungry king of the mobile market. This change in perspective begs the question: When a company like Apple owns the majority of a market and is worth more than any other publicly-traded entity, should they really worry about other competitors like Samsung, Motorola, or HTC who barely compare in market strength? Basically, Ingram suggests that its pointless and unfair for a giant like Apple to squish the little guys before they even get a chance to compete. By shifting Apples image in relation to its competitors, Ingram sets up the rest of his argument perfectly. After changing Apples image, Ingram addresses supporters of Apples victory. According to these people, it doesnt matter how large or successful Apple is: the point is that Samsung did something wrong (Ingram). This frustrates Ingram, who responds by laying out the facts of the case logically. In the case, two of the design patents are for rounded corners and a flat top. Currently, thousands of products already on the market feature this design. However, Apple claims ownership of it. Its ridiculous that Apple owns a widely used design simply because they filed for it as a patent. Ingrams next example is the pinch to zoom gesture that can be found on most mobile devices. In Ingrams words, patenting something so widely used is like claiming ownership over the idea of a circular steering wheel. In the same way it would be ridiculous for one company to charge another a huge sum of money to use the design of a circular wheel, it is ridiculous that Apple claims pinch to zoom. Ingram further undermines design patent credibility by stating that there is evidence of pinch to zoom existing far before Apple patented it, meaning Apple obtained rights for something that they didnt even invent! Having finished criticizing Apple, Ingram continues to argue against software patents by calling them nuclear weapons, not defenses. According to Ingram, the fact that software

Hudock 4 patents can apply to such obvious-looking or even trivial applications of design and usability is why some have described them as evil, and a cancer. Ingrams use of the word cancer here is exceptionally powerful. Instead of just saying design patents are bad for competition, Ingram goes a step further and says they are a cancer to the American free market. Using a word like cancer causes the reader to equate patents to a terrible disease, tying a harsh emotional reaction with the thought of design patents. Doing this is excellent for Ingrams argument because it creates feelings of disdain towards design patents in his audience, automatically influencing their opinions. After excellently defining design patents as inhibitors of a free market, Ingram describes why this is the case. To him, granting multibillion-dollar companies ownership of design patents does little to promote any kind of useful innovation instead, they just tie up the courts and give some companies a nuclear arsenal they can use to attack competitors (Ingram). If companies are capable of holding the rights to hundreds of design patents as simple as rounded square app icons or a rounded screen, what is to stop these companies from attacking any competitor who implements a slightly similar feature in their product? In time, a company capable of collecting the most patents (or build up the strongest nuclear arsenal, in Ingrams words) could easily eliminate smaller, less-protected competitors, creating a monopoly. In a capitalist society, competition is the key to a healthy economy. By having companies tied up in court over pointless design lawsuits, that competition is not possible. Ingram recognizes that companies have the right to protect themselves from being copied, as they should do. However, he does not agree that multibillion-dollar companies should have the right to sue others over things as frivolous as the shape of icons or the swiping motion that users employ to switch pages. When it comes down to it, software only has so many

Hudock 5 variations. And for certain actions, say switching pages, is it fair to copyright the right to left motion? Taking a step back, copyrighting a right to left motion when switching pages is like copyrighting a book that turns from right to left. Should someone have the right to own that design? Should he/she have the right to sue others for using that design, forcing competitors to create books that turn down to up? Absolutely not. So why should Apple have the rights to such trivial ideas? These rights only kill competition and innovation; two factors that make our capitalist society thrive. Although Ingrams editorial is inherently biased, he still successfully creates a sound argument. For one, he explicitly defines his audience in the first paragraph as the court by saying that even though they ruled in favor of Apple, that doesnt make it right. Two, he supports all his points with facts and metaphors. Three, he addresses the other side but easily refutes it. Finally, Ingram avoids the trap of an editorials bias by intelligently refraining from forcing any inferences, allowing his points to develop naturally into one logical conclusion. Altogether, his argument is well-developed and powerful. It forces readers to re-examine the role of patents in a capitalist society, showing how loose distributions of patents give far-unbalanced power to companies. While America may never see the day when a monopoly rules the mobile industry, it will be years before a patent reform actually takes place. With design patents being so new to the mobile industry, its far too early for any dramatic changes to occur. Who knows how design patents will function a decade down the road?

Hudock 6 Works Cited Brodkin, Jon. "Apples Case that Samsung copied iPhone and iPad-in pictures. Ars Technica. N.p., 8 Aug. 2012. Web. 18 Dec. 2012. <http://arstechnica.com/techpolicy/2012/08/apples-case-that-samsung-copied-the-iphone-and-ipad-in-pictures/>. Ingram, Mathew. "Apple May Have Won, but Software Patents Are Still Evil Tech News and Analysis." GigaOM. N.p., 27 Aug. 2012. Web. 18 Dec. 2012. <http://gigaom.com/2012/08/27/apple-may-have-won-but-software-patents-are-stillevil/>.