Last month, Apple won a landmark patent case against Samsung that sent shock waves through the market for mobile devices. But it’s just the first round in an intellectual property fight that will determine how companies design and manufacture products to compete with Apple. We consider the effect of the ruling and what it means for the future of the mobile market.

Guests

  • Jorge Contreras Associate Professor of Law, Washington College of Law, American University
  • Laura Sydell Digital Culture Correspondent, NPR
  • Ben Bederson Professor of Computer Science, University of Maryland-College Park; and Co-Founder and Chief Scientist, Zumobi

Transcript

  • 12:06:41

    MR. KOJO NNAMDIFrom WAMU 88.5 at American University in Washington, welcome to "The Kojo Nnamdi Show," connecting your neighborhood with the world. It's Tech Tuesday. Pablo Picasso once said that good artists copy, great artists steal. But if you are in the business of designing smartphones, copying another person's ideas may soon become a much more expensive transaction. A federal jury last month awarded Apple $1 billion in a sprawling court battle over patents for mobile devices.

  • 12:07:21

    MR. KOJO NNAMDIApple accused Samsung of infringing on patents that covered everything from the pinch to zoom function on the iPhone to the rounded edges and button of the iPhone's physical design. And now, it seems that Apple, a company once spearheaded by a man who used to champion Picasso's philosophy for borrowing creative ideas, may be changing the game for how tech companies collect patents and use them against their fiercest competitors.

  • 12:07:47

    MR. KOJO NNAMDIJoining us to explore the intersection of creativity and the patent wars is Ben Bederson. He is a computer science professor at the University of Maryland-College Park. Ben, always a pleasure. Good to see you.

  • 12:07:58

    PROF. BEN BEDERSONYou, too, Kojo.

  • 12:07:59

    NNAMDIAlso in studio with us is Jorge Contreras. He is a professor at the Washington College of Law at American University. Jorge Contreras, thank you for joining us.

  • 12:08:07

    PROF. JORGE CONTRERASIt's a pleasure to be here.

  • 12:08:08

    NNAMDIAnd joining us from studios in San Francisco is Laura Sydell, digital culture correspondent for NPR. Laura Sydell, thank you for joining us.

  • 12:08:17

    MS. LAURA SYDELLYou're welcome.

  • 12:08:18

    NNAMDIAnd you are welcome to join this Tech Tuesday conversation by calling 800-433-8850. You can send email to kojo@wamu.org, send us a tweet, @kojoshow, using the #TechTuesday, or simply go to our website, kojoshow.org, and ask a question or make a comment there. Laura Sydell, I'd like to start with you. People call this the patent trial of the century. Apple won big against Samsung, which is the largest smartphone maker in the world.

  • 12:08:46

    NNAMDIThe jury found that Samsung infringed on utility patents, design patents. What were some of the things on the list that Samsung was found guilty of copying?

  • 12:08:55

    SYDELLWell, you know, some of them might actually make people almost laugh because if you, you know, you can -- unfortunately, on radio, you can't see, but, you know, most people have some kind of smartphone and so forth at this point...

  • 12:09:08

    NNAMDIYeah.

  • 12:09:08

    SYDELL...or a lot of people do. So if you go, for example, to your contacts' list on an iPhone and you scroll through the contacts' list and you get to the very top, now, it might just stop, right, cold?

  • 12:09:21

    NNAMDIYes.

  • 12:09:21

    SYDELLApple created this very nice elegant little feature that, instead of stopping cold, there's a little bounce.

  • 12:09:28

    NNAMDIYeah.

  • 12:09:28

    SYDELLSo it just -- it gives it a little bounce.

  • 12:09:29

    NNAMDII'm familiar with the bounce.

  • 12:09:29

    SYDELLThat's one of the patents. Yeah. You're familiar with the bounce. You know...

  • 12:09:32

    NNAMDII'm familiar with the bounce.

  • 12:09:33

    SYDELLThey have a patent on that.

  • 12:09:36

    NNAMDIThere's a patent on bounce?

  • 12:09:36

    SYDELLThey also -- a patent on the bounce.

  • 12:09:39

    SYDELLThis is a software patent, and they have a patent on this. And certainly, it is one of those very clever things that makes Apple products really nice to use. One of the other patents -- and I think this one has made many people kind of balk. Design patents are a particular kind of patent, and it can be on the shape of an object and things like that. And they are -- so I am told by designers, they're not actually that hard to get, so Apple submitted one.

  • 12:10:09

    SYDELLAnd if you go, you look at it, it's clearly -- it is the design for what became the iPhone 3. But if you actually look at what is there in the patent, all it is is a rectangle with rounded corners. That is the patent. So a lot of people have been kind of making this joke like, really, a rectangle with rounded corners? You can get a patent on that? And, well, yeah, kind of, you can, so...

  • 12:10:36

    NNAMDIWell, I think I did that inadvertently in elementary school. But, Jorge...

  • 12:10:39

    NNAMDI...when it comes to claiming design patents, what's the precedent for doing this in the technology sector?

  • 12:10:46

    CONTRERASYeah. Design patents are very interesting. They've been around for a long time, but they haven't been used very much at all in these technology battles. So automobile companies that will get design patents on the body designs of their cars, furniture companies will get design patents on styles of chairs, those sorts of things, decorative items and so forth, it's been very rare in hi-tech patent battles.

  • 12:11:12

    CONTRERASAlmost all of those battles have been around utility patents, right, those kinds of things that Laura mentioned first. So there's really not a heck of a lot of law out there around how to treat and think about these design patents in the technology space.

  • 12:11:29

    NNAMDIWhen we think design, Laura, we often think the fashion industry, and you wrote that in that billion-dollar industry, people rarely file design patents and that...

  • 12:11:39

    SYDELLVery rarely.

  • 12:11:39

    NNAMDI...Steve Jobs himself was a fan of doing a little borrowing.

  • 12:11:42

    SYDELLThat's right. You know, he was famous for quoting Picasso: Good artists borrow, great artists steal. And, you know, I mean, he certainly looked out there at other designs, as do all designers, all creative people. They're inspired, right, by other things that are out there. And so you take a little of this, a little of that, right? You know, even a guitarist, right? He's playing a certain riff that sounds like Jimmy Hendrix did, you know? This is not uncommon.

  • 12:12:10

    SYDELLIn fashion -- excuse me -- they never really file for them because the industry moves very fast, right? So you can have, for example, you know, a company puts out and makes tapered -- a tapered leg on your jeans more stylish that year, and, suddenly, you'll see everybody else doing the same thing because it goes over big. And there doesn't seem to be any sense that this really upsets people.

  • 12:12:36

    SYDELLThey just move forward. It's so fast-moving, they just want to get the next thing out there and the next thing out there. So, to some degree, it isn't a totally fair comparison, but it is a bit. There -- you know, there's something to be said for the fact that this industry is able to be extremely creative without using patents. And in some ways, it makes them more creative because you have to move so fast to beat the next guy.

  • 12:13:00

    NNAMDIBen Bederson, before we go any farther, perhaps it's best to first ponder this question: How would you describe the nature of innovation in the technology sector to begin with? Do you find it's a part of the economy where there's nothing new under the sun, or where a part of the economy where people can and do literally bring ideas to the table from out of nowhere?

  • 12:13:24

    BEDERSONYou know, the idea that we have these, you know, flashbulbs, these light bulbs of innovation, this credible new idea that no one has ever thought of before is the way that things get invented is not really true. I mean, maybe on occasion that happens, but...

  • 12:13:43

    NNAMDIOh, my.

  • 12:13:43

    BEDERSON...it's very unusual.

  • 12:13:44

    NNAMDIThe comic-book flashbulbs were all wrong?

  • 12:13:47

    BEDERSONYes. What really happens is that people study the world around them. They build on a technology that's available. They read the literature. They look at competitive products, and they look at the marketplace to find out what is missing in the market, what new cost structures would make it possible to do something, you know, at a value that makes sense that it didn't six months ago. And they iterate.

  • 12:14:11

    BEDERSONAnd iteration is the key thing. In fact, if you look at the history of innovation and if you look at patent filings, what you will find is that there are often several people that "invent" the same thing at around the same time. And the fact that it had happened shows that it is based on a social and cultural context. And, in fact, when my students come to me and they say, hey, I want to work in this area, the very first thing I always tell them is that, great, before you do anything, go read the literature. And in business...

  • 12:14:45

    SYDELLYou know...

  • 12:14:46

    NNAMDIGo ahead.

  • 12:14:47

    BEDERSONAnd in business, the idea is go look at, you know, do a competitive analysis. It's the same thing.

  • 12:14:52

    SYDELLI was going to say one of the most famous things that was invented at the same time -- this isn't a design thing. It's a tech thing -- was the integrated circuit. Two people invented it at the same time, and they were not working together. And this is what became of silicon chips. This was a huge breakthrough. It's just that, I think, what happens with invention and with innovation is that things build upon things.

  • 12:15:14

    SYDELLAnd a problem arises, and everybody tries to solve that problem. You know, at the time, it was that there were too many transistors on a chip, and they had to figure out what to do. And so two people came up with the same solution.

  • 12:15:26

    NNAMDIAnything to add to that, Jorge?

  • 12:15:28

    CONTRERASI mean, I guess, just to give a little bit of a contrarian view, I wouldn't paint so rosy a picture of industries like fashion. Admittedly, you can't get a design patent on a new cut of a dress or a piece of clothing. But the industry has been fighting to get that kind of protection for years, and there's a very strong movement right now in the New York fashion industry to get that kind of protection to prevent knock-offs on fashion designs.

  • 12:15:59

    CONTRERASAnd in Europe, there is more protection like that. So even though it's an industry that's fast-moving in which people recognize there is imitation quickly, the people in the industry are desperately trying to get as much protection as they can. I think nobody wants to be subject to copying even if they're in the fastest-moving industry.

  • 12:16:22

    NNAMDIAnd that's why...

  • 12:16:22

    SYDELLCan I just add...

  • 12:16:23

    NNAMDIPlease go ahead.

  • 12:16:23

    SYDELL...one really important thing, if you don't mind? Which is what the purpose, which -- maybe we should say, what is the purpose of a patent? I mean, a patent is a big deal. You get a 20-year monopoly on something, and, during that 20 years, people have to pay you to use it. So the government grants you this monopoly, and the reason is it is to encourage innovation. It's in the Constitution.

  • 12:16:45

    SYDELLThere's a line, and I'm not going to quote it exactly right at the moment. But it says, you know, to spur the creative arts and sciences. And so if that is what it's about, you have to think, what is the public policy reason? You want people to share their ideas. If fashion has been going along just fine, I think, probably I could imagine why there would be some reserve to grant patents because what would it really do?

  • 12:17:09

    SYDELLWould it mean that we would have more creative ideas? Would it encourage people to share them? I mean, what would be the public policy reasons? So I just think with all of this, you have to think why do we have patents?

  • 12:17:20

    NNAMDIAnd indeed, as we get to the public policy reasons, we do have to consider the legal implications of this, which is why we have Jorge Contreras with us in the studio. He is a professor at the Washington College of Law at American University. Laura Sydell is a digital culture correspondent for NPR. And Ben Bederson is a computer science professor at the University of Maryland-College Park.

  • 12:17:40

    NNAMDIWe are talking patents as they relate to smartphones in this particular situation. And the number you can call to join this Tech Tuesday conversation is 800-433-8850. Where do you think innovative ideas come from when it comes to modern technology? What concerns do you have about whether patent wars will slow down the pace of new ideas? 800-433-8850 is the number to call.

  • 12:18:05

    NNAMDIBen Bederson, how would you describe the pace of innovation when it comes to tech products like smartphones? Nick Wingfield of The New York Times wrote this weekend that the features of the new iPhone are symbols of a new era where technology advances by what he called bunny hops?

  • 12:18:22

    BEDERSONWell, I guess, I'm not quite sure how to interpret bunny hops is meant to be large hops or small hops.

  • 12:18:26

    NNAMDII think small.

  • 12:18:27

    BEDERSONYeah. Right. OK. Right. So, I mean, the iPhone 5 was just announced, and people's generally had a, you know, this kind of mixed reaction which is something that they want to have. Apparently, 2 million were pre-ordered in 24 hours. And at the same time, while it looks very nice, its biggest innovation is that it is -- I mean, "innovation" is that it's half an inch taller, right? And, of course, Samsung, I guarantee would definitely claim that is not an innovation since they've had taller phones for quite some time.

  • 12:19:01

    BEDERSONAnother innovation is to make the cords incompatible with the previous one. So you have to buy a whole new set of docks, a whole new set of chargers, a whole new set of cables. Now, that is an innovation all right. It is an innovation in forcing an industry to throw away stuff they've already known and force all their customers to throw away stuff and buy new $30 connectors and cords and adapters.

  • 12:19:25

    NNAMDIAnd bunny hops, those kinds of bunny hops, Jorge Contreras, brings me back to the legal aspect of this argument that Laura was talking about early, and that is, what are the criteria for how patents are awarded to begin with?

  • 12:19:40

    CONTRERASRight. Well, as Laura mentioned, the Constitution has some very broad language about patents in it, and that's really all the guidance that we have as far as what the general scope ought to be. So Congress has written a patent act that allows patents to be obtained really on anything invented by man under the sun, and that's quoting from the Supreme Court. So you can get a patent on anything as long as it qualifies as an invention. And I'm sure Ben has some views on what an invention actually is.

  • 12:20:11

    NNAMDIOh, yes.

  • 12:20:13

    CONTRERASBut in the legal sense, it's really anything that has not already been invented, that is not obvious in view of the prior art or stuff that's already out there.

  • 12:20:26

    NNAMDIWell, we do have a caller who would like to talk about that specific aspect of patents. Here is Kevin in Washington, D.C. Kevin, you're on the air. Go ahead, please.

  • 12:20:35

    KEVINHi. Thanks, Kojo. Yeah, I just -- this whole debate is kind of interesting, and I think part of it is people in the U.S. have not recognized the value of design. And when you talk about fashion, there are lots and lots of design patents that are filed on various types of fashion. It may be true that people have not -- it hasn't been worth it for them to go after infringers. However, you know, after this Apple decision, I think it's going to be a huge paradigm shift.

  • 12:21:13

    KEVINAnd I think, all of a sudden, people in the fashion industry, when their designs are getting knocked-off 24 hours after they come out in Paris, I think that all of a sudden people are going to realize the value of design patents. Now, you also can't underestimate the value of the attorney who litigated on behalf of Apple. You know, one version of the story is everybody had all different types of phones on the market, all different types of designs. Apple came along with their design.

  • 12:21:48

    KEVINIt became an iconic kind of symbol, essentially, and everybody else started to copy their design. When other phones in the market -- there are all different types of phones -- and as you look over time, they're all starting to look more and more like Apple products. So that's the kind of story, I think, people need to be aware of. And I think design patents are all of a sudden going to become a much bigger issue in the United States.

  • 12:22:19

    NNAMDIWell, I want to get back to the fashion industry for a second, Kevin. You want to say something, Ben Bederson? Yes.

  • 12:22:23

    BEDERSONWell, I just have to -- there's one specific thing I wanted to respond to there, which is it is pretty clear, at least in my view, that electronic devices that were rectangular with rounded edges, round around the corners, pre-existed Apple so -- and pre-existed the iPhone. So inasmuch as some devices after the iPhone were rounded, cornered rectangles, I'm not quite sure how you can say they copied Apple if those were pre-existing. How do you know they copied the things that came before Apple?

  • 12:22:54

    NNAMDIWhich is why Kevin seems to be giving credit to the Apple attorney in this situation, Jorge.

  • 12:22:58

    CONTRERASYeah, well, Apple...

  • 12:22:58

    SYDELLYeah, I mean, I agree.

  • 12:23:01

    CONTRERASApple's attorneys were very good. And I should disclose that I was formerly a partner at the firm representing Apple in that case. But precisely what Ben said is what's going to play a big part in the appeal that is definitely coming. These appeals will be going on for years. And Samsung will be talking a lot about the Sony and other devices that kind of looked rectangular and had...

  • 12:23:29

    SYDELLAnd if you're wondering why the price of your phone is going up, it's because they're spending all this money on litigation. So...

  • 12:23:36

    NNAMDIIndeed. We've got to take a short break. But, Kevin, thank you very much for your call. When we come back, we will continue this conversation on patents, design and what they have to do with the iPhone or whatever device you happen to be carrying in your hand. 800-433-8850. Are you contemplating buying the new iPhone? What factors will you consider before making your decision? 800-433-8850. You can send email to kojo@wamu.org. I'm Kojo Nnamdi.

  • 12:25:55

    NNAMDIWelcome back to our Tech Tuesday conversation stemming from the iPhone-Samsung dispute and extending to the nature of creativity and what patents have to do with it. We're talking with Laura Sydell. She's a digital culture correspondent for NPR. She joins us from studios in San Francisco. Ben Bederson is a computer science professor at the University of Maryland College Park. He joins us in our Washington studio along with Jorge Contreras, professor at the Washington College of Law at American University.

  • 12:26:23

    NNAMDIBen, how central is the nature of derivative work to modern computer programming and Web design? It's my understanding that the basic HTML for most pages of the Web can be seen through your Web browser if you click on view source.

  • 12:26:39

    BEDERSONThat's absolutely right. And, in fact, I think that is a fundamental reason as to why the Web became so popular so quickly because when people saw something that they wanted to replicate or even better yet, enhance, rather than having to figure out from scratch how to do it, they could copy the source and then modify it, or even they could just look at the source to learn how things worked.

  • 12:27:02

    BEDERSONIt's much like the way, in the old days when before automobiles got so complicated, that teenagers would take their junkyard car and they would open up the hood and play with the engine. And in doing so, they would learn how it works. Being able to, you know, see how things work and be able to play with them enables significant learning and enhances the opportunities for, you know, I'll call it incremental change, which is another way of saying creativity and innovation.

  • 12:27:29

    NNAMDIWould you say that the modern technology sector is the product of a collaborative culture?

  • 12:27:34

    BEDERSONI mean, I don't that there's any question that that's true, all right, I mean, that just of the open source movement itself is huge enough to make that claim. And even the closed-source movement has many, many technologies which are designs to be added, you know, onto. You know, one great example is Scratch, which is a children's programming environment, and they have a homepage that has kind of a traditional gallery where you can post your creations, right, the things that kids -- that they've made.

  • 12:28:05

    BEDERSONBut rather than just having a picture, you get credit when someone downloads and uses your creation. But then you get more credit if someone downloads and uses your creation and modifies it and posts the modification back on the Web. So it's a really explicit metric to try and encourage people from learning from others and sharing.

  • 12:28:28

    NNAMDILaura Sydell, back to fashion for a second, someone told you that it's a lot easier to design a pair of pants than it is to design an iPhone. But you found it, nevertheless, a useful exercise to compare how patents affect creativity in both the technology and fashion markets. Why?

  • 12:28:45

    SYDELLWell, I think the, you know, this is coming from a study that was done by Prof. Kal Raustiala at UCLA, and he actually studied the fashion industry because he thought it was useful to look at industries where patents were not as significant. And there are the people who want to make them more significant. But I think the question was from, his perspective, was it really getting in the way of creativity to have people ripping stuff off?

  • 12:29:13

    SYDELLAnd I'm not talking, you know, this -- let's be clear that he was not talking about, you know, if you go to New York City and you go down to Canal Street, there are -- you can buy, you know, knock-offs of your, you know, Louis Vuitton handbag that are true knock-offs. He's not talking about that. He's talking about works that are derivative of something. You know, again, like the pair of pants with the tapered leg, so you're not going to do an exact copy of somebody.

  • 12:29:38

    SYDELLAnd what he found was, it was not actually making the industry less creative 'cause the fear is if you don't give people patents, right, they're not going to share their work. Good example, say, would be the cotton gin, right? You give Eli Whitney a patent on his cotton gin so that he doesn't keep it a secret. And other people, which we were just talking about how creativity happens here, right, it's incremental. You build on other people's things. So you want things to be out there.

  • 12:30:03

    SYDELLAnd so, he said, look, not every industry is the same, but it is important to look at a variety of industries and what is the effect of patents in intellectual property within those industries. It's not a complete match, but there are some similarities. You do have to look and say, huh, these people manage to move forward, and they do it without constantly enforcing and going to court and spending lots of money on...

  • 12:30:30

    NNAMDIWell, now that the idea has been floated that that is conceivably going to happen in the fashion industry, what, in your own mind, is likely to happen if people start suing each other over pointy-toed shoes and tapered jeans?

  • 12:30:45

    SYDELLYou know, it's a hard question to answer. I mean, I guess it just means that I'm going to have to, you know, if I want those pointy-toed shoes, I'm going to have to pay $500 to get the Jimmy Choos. I'm not going to be able to go and get probably not as well-made or as well-cared for version. You know, I think ultimately, it can mean that products are going to be more expensive for consumers because if we look at, indeed, you know, the market for smartphones, Apple products are expensive.

  • 12:31:14

    SYDELLAnd that is one of the reasons people have probably turned to Android. There's more variety of phones. Some of them are less expensive. So, from the consumer point of view, I don't know that that's necessarily a good thing. It means that there may be less variety for you because it's going to force, you know, whoever, Samsung or whoever to pay off big if they want to go down a certain avenue of design productivity.

  • 12:31:38

    NNAMDIA lot of callers would like to address this issue. We'll go to Rick in Manassas, Va. Rick, you're on the air. Go ahead, please.

  • 12:31:45

    RICKYeah. My concern is how big corporations buy patents from inventors that would make their technology relatively obsolete and then suppress the new technology. For example, we have cars -- where I'm about to fill up with gas -- but they've got a car engine that had been invented that don't require any fuel at all, all totally suppressed. We used to have us a anti-freeze that plug the holes in the radiator. You can't buy it. The Swiss invented the battery that would last for 30 years. You can't buy it.

  • 12:32:18

    NNAMDIJorge Contreras, talk about patents may be used to suppress creativity.

  • 12:32:23

    CONTRERASYeah. This was a problem, not a problem that relates to the Apple-Samsung battle, but a problem nonetheless. And people have talked a lot in the U.S. of having what's called a working requirement for patents. You get a patent on something. The idea is then you should use the invention, make the invention and not just take the patent around to sue other people.

  • 12:32:46

    CONTRERASThis is the problem that some have referred to as problem of patent trolls or non-practicing entities who don't make anything, simply accumulate patent assets for financial gain and go out and sue the companies who are making things. Difficult problem and one that the law does, I think, need to fix.

  • 12:33:08

    BEDERSONYou know, actually if I can just comment on that.

  • 12:33:09

    NNAMDIPlease go ahead, Ben.

  • 12:33:10

    BEDERSONYou know, there's different venues for lawsuits, and one is the International Trade Commission where the goal is to -- or what they provide is the opportunity to stop other companies from importing products. They don't provide damages, but they stop importation. And because it is focused on importing to avoid unfair, you know, competitive practices, this -- the complaint, the plaintiff or the complainant, as they call it, has to practice what they call a domestic industry.

  • 12:33:41

    BEDERSONIn other words, they actually have to practice the patent in order to sue someone to prevent them from importing it. So it does actually happen in some places.

  • 12:33:46

    CONTRERASWell, but, unfortunately, the leaning is that a business of licensing patents for financial gain is being considered a domestic industry for purposes of the ITC. So patent trolls are a part of the U.S. business. They create jobs for lawyers and others and paralegals...

  • 12:34:06

    SYDELLA lot of jobs for lawyers.

  • 12:34:07

    CONTRERASAbsolutely.

  • 12:34:07

    SYDELLCan I...

  • 12:34:09

    NNAMDIGo ahead please, Laura.

  • 12:34:09

    SYDELL...can I just -- I'm going to toot my own horn just briefly, but I did an hour-long "This American Life" that dealt with patent trolls, believe it or not. I know that sounds like a, you know, really like, you know...

  • 12:34:19

    NNAMDIOh, we have done an hour on this broadcast also.

  • 12:34:22

    BEDERSONWe love that show.

  • 12:34:23

    NNAMDIGo ahead, please.

  • 12:34:23

    SYDELLCalled "When Patents Attack," and we explored one of the larger "Patent trolls" which is intellectual ventures. So if people are interested in actually kind of understanding how some of this happens, it might be a good source for them.

  • 12:34:38

    BEDERSONIt's a very nice segment.

  • 12:34:41

    NNAMDIAnd thank you very much for doing. We got an email from Jay in Herndon, Laura, that says, "I recall back in early '90s Apple sued Microsoft for stealing the look and feel of the Macintosh. This is when Windows 3.0 -- remember that -- was released. Apple lost but now has won against Samsung. This seems inconsistent to me. What don't I know?"

  • 12:35:02

    SYDELLOnly the courts and juries are inconsistent, you know, and that Apple's gotten better and has better lawyers than it had been. That's what I, you know, I'm inclined to think. I mean, they made a really, really good case. And Samsung didn't make as good a case in this particular instance. And I think Apple was really, really determined. I mean, Steve Jobs was quoted in the Walter Isaacson biography as being so upset about Android, which he felt was stolen, he said, "I am willing to go thermonuclear on them."

  • 12:35:32

    SYDELLHe was ready to spend Apple's entire fortune going after Android. And so, you know, this is also a battle. This was a battle by proxy, this huge case. Samsung versus Apple was really a battle by proxy against Google and against the Android operating system which is indeed outselling the iOS, the Apple operate, you know, the Apple phone.

  • 12:35:52

    NNAMDIBen? Jorge, then Ben.

  • 12:35:53

    CONTRERASSure. So I (unintelligible) -- so some of the differences between the older cases is that the older cases are copyright cases, right? And Apple and Microsoft weren't battling over the look of the Macintosh plastic shell, which was pretty unique, you have to admit. A lot of the old cases were about the software, look and feel, right. You had Borland and, you know, lots of people who had Windows and mini systems before we knew whether or not those would be protectable under copyright.

  • 12:36:20

    CONTRERASThose cases went both ways. This Apple-Samsung case really is very new in terms of the law of design patents. They really haven't been used much in the high-tech space.

  • 12:36:31

    NNAMDIBen?

  • 12:36:31

    BEDERSONAnd just looking...

  • 12:36:32

    SYDELLThat's what I was told, yeah, by designers who said, you know, they haven't been used so much.

  • 12:36:36

    BEDERSONAnd looking back at that old, the 1990s case, which was the trial of the century -- last century, by the way.

  • 12:36:43

    BEDERSON...not only did that -- was it focused on copyrights but it was also focused on licenses. Microsoft actually had a license to Apple's design to be used for Windows, I think, 2.0 and -- or 1.0, and the question was whether that license applied to 2.0 or 3.0 -- I forget which way it went. And so really it came -- much of it was a contractual licensing issue.

  • 12:37:04

    BEDERSONThe other thing that came up in that case, much as I think will continue to come out more in this case and appeals, is whether Apple's copyrightable -- copyrighted things were even copyrightable because some of their interface elements were actually invented from Xerox, from Xerox PARC at the time, the Palo Alto Research Center.

  • 12:37:23

    BEDERSONAnd so similarly, there's a question as to how much of the things that Apple has patented are going to -- they're going to be able to maintain the validity of those patents.

  • 12:37:33

    CONTRERASYeah.

  • 12:37:33

    NNAMDIWe got an email from Martin, who says "As to design patterns, they're limited to previously unknown designs that must be solely ornamental, not functional. A rectangle with rounded corners? Seems to me that Pythagoras came up with a rectangle a long time ago, and it has been known for a millennia that rounded corners are functional for pocketed devices as they prevent uncomfortable poking and snagging of the fabric leading to tears and difficulties removing the device from your pocket.

  • 12:37:57

    NNAMDI"Thus Apple's design patents were invalid on their face as such product shapes were well-known prior to Apple's filing and the contained functional elements also well-known. The examiners that granted these patents should themselves be examined for their lack of critical thought or knowledge." But here is Jim in Crystal City, Va. Jim, you are on the air. Go ahead please. You are where the U.S. Patent Office happens to be, are you not, Jim?

  • 12:38:21

    JIMI am with the American Intellectual Property Law Association.

  • 12:38:25

    NNAMDIThere you go.

  • 12:38:26

    JIMAnd I would -- I suppose second email comment that was just made, at least to the extent that there is a process for examining these designs and for holding them up against what they call the prior arc, what people have before and they are considered in -- through the eyes of a person of skill, which means that it is designers, not the lay person, who looked to see if this design has been applied before. You know, design patents find themselves at the intersection of utility patents on the one hand and copyrights on the other insofar as you're talking about applying a design to a useful object.

  • 12:39:23

    JIMCopyrights won't allow you protection for that. But if you think about the kind of minimalism that is used in the Apple products that has so much appeal, if you think about the Moen faucets that are aesthetically appealing, these are useful objects that have this ornamental appearance integrated into them. And it's the advancement of those ornamental art that the patents here are designed to promote.

  • 12:39:54

    NNAMDIAnd I guess the controversy is as to whether or not those ornamental arts were, in fact, created by Apple or the people who say they created them. Jim, thank you very much for your call. Jorge, you wrote recently that the immediate challenge facing both Samsung and the makers of Android phones is redesign. How?

  • 12:40:13

    CONTRERASYeah. Exactly, exactly. So Apple's patents that it won on in this trial aren't really very technological patents. You go to most patent trials -- you wouldn't understand a thing about what's being patented.

  • 12:40:29

    NNAMDIYou underestimate me, my friend. Go ahead, please.

  • 12:40:32

    CONTRERASLet me -- I mean, I wouldn't understand...

  • 12:40:34

    NNAMDIGo ahead. Go ahead.

  • 12:40:35

    CONTRERAS...most of these things, pharmaceuticals or semiconductor chips. It's all very, very complicated. The patents in this case are not technologically complicated. They cover fairly simple things: gestures and the designs. Those are things that are not necessary. They're not absolutely critical to having a smartphone. They're nice, right? So tap to zoom or tap to center. Those sorts of things make Apple's products distinctive, and they're fun to use.

  • 12:41:08

    CONTRERASBut you can certainly have a smartphone that does not have those features. And if that's all that's patented and that's all that Apple has won on, then it's simply a matter for Samsung and really Google -- this is a software redesign -- to change those aspects of the product. So rather than zooming by spreading apart two fingers, there are other ways. On our computer screens, we don't put our hand up to the monitor and spread apart our fingers to zoom. We...

  • 12:41:35

    NNAMDIAlthough I find myself doing that from time to time.

  • 12:41:36

    CONTRERASYeah, exactly. I got lots of fingerprints on my monitor, too. Nevertheless, you know, we use a mouse. We click on the plus or the minus button, the zoom buttons. There are other ways to zoom images, and there have been for years. And if Samsung and other Android manufacturers want to get back into the market quickly, all they have to do is design around the patents, which are not category-killing patents, I think.

  • 12:42:03

    NNAMDIGot to take a short break. When we come back, we will continue this Tech Tuesday conversation. If you'd like to join the conversation -- the phone lines seem to be busy -- shoot us an email to kojo@wamu.org. Have you ever purchased a smartphone because you liked its physical design? What was it, and what did you like about it? 800-433-8850 or you can send us a tweet, @kojoshow, using the #TechTuesday. I'm Kojo Nnamdi.

  • 12:44:30

    NNAMDI...Tuesday conversation arising from the iPhone-Samsung dispute being battled in court. We're talking with Jorge Contreras. He's a professor at the Washington College of Law at American University. Ben Bederson is a computer science professor at the University of Maryland, College Park. And Laura Sydell is a digital culture correspondent for NPR. Laura, during one of our breaks, Jorge and Ben and I were having a dispute over this issue, so you may have to adjudicate for us. Let me start with Jorge.

  • 12:44:58

    SYDELLI'll do my best.

  • 12:44:59

    NNAMDIJorge, you don't see a lot of people using iPhones the way they came straight out of the box anymore. Almost immediately, they throw protective cases on them, so say we. Ben says not necessarily. What should this mean for the case they make about the physical sleek design of the iPhone, particularly the new iPhone? Yes, Jorge first.

  • 12:45:18

    CONTRERASRight. So it doesn't really affect whether or not Apple deserves a patent, but it certainly could affect the amount of damages that Apple is entitled to if the design is really not that important to people because they -- and, again, we had a little debate about this. But what I see when I ride the Metro, when I walk down the street is 99 percent of people, myself included, have a case. It's personalized. There are cases with bling.

  • 12:45:43

    CONTRERASThere are cases that are just black. There are cases that are big and rubber. People don't seem to care that much about the design. The design does not seem to be the thing motivating them to buy the phone. It's the technical aspects of it.

  • 12:45:54

    NNAMDIAnd, Laura Sydell, Ben Bederson says he's not a part of any 1 percent that...

  • 12:46:00

    BEDERSONAlthough I have put a sticker on the back of my phone. I covered up the Apple logo and replaced it with my Research Labs logo.

  • 12:46:07

    NNAMDIHe likes his iPhone naked, as a matter of fact. What is your observation, Laura?

  • 12:46:14

    SYDELLI mean, I have to say it -- this is not scientific, but my observation is most people put a case on it because it can be fragile if you keep dropping it, you know, which I, being kind of clumsy, you know -- I dropped mine, so -- and, in fact, you know, my iPhone -- NPR gave me my iPhone. And when they sent it to me, they sent it with a case. So, I mean, I'm inclined to think a lot of people do.

  • 12:46:35

    NNAMDIIn that case, Ben, I rest my case.

  • 12:46:37

    BEDERSONWell, I'm thinking that we should look for maybe making a patent on avoiding iPhone dropping.

  • 12:46:44

    NNAMDIYes. Yes. We had a discussion about that.

  • 12:46:46

    BEDERSONA string around your wrist.

  • 12:46:48

    SYDELLYeah. Yeah.

  • 12:46:49

    NNAMDIWell, here's Andrew in...

  • 12:46:50

    BEDERSONThat's the Nintendo Wii approach, right?

  • 12:46:50

    NNAMDI...Washington, D.C., who, in a way, can weigh in on that issue. Andrew, you're on the air. Go ahead, please.

  • 12:46:57

    ANDREWHi, Kojo. How's it going?

  • 12:46:58

    NNAMDIHi, Andrew. You're breaking up on us, but I know you wanted to make the point that it's not the design or look that makes it the best phone for you. What does?

  • 12:47:07

    ANDREWI apologize. You know, I'm outside, in the middle of a wonderful rain we're having up here in D.C. I just made it inside. So my call was -- and your guests hit on this early -- that in technology, you very rarely get the best by being the best, you know, looking or the best design. You wind up being the best when it comes to functionality, utility and just by being the best. I have an Android phone that I run currently on Boost Mobile, of all things.

  • 12:47:41

    ANDREWIf you look at the processor specs and the specs of the entire phone, it's actually better than a third-generation iPhone. And I have it on a prepaid network. And they came out more or less about the same time. Apple products tend to be really underpowered, and only, really, one of the few things they have going for them is the design and functionality. So it's very easy to see why they would sue over their biggest selling points.

  • 12:48:10

    NNAMDIGood point, I think. What do you say, Laura Sydell?

  • 12:48:12

    SYDELLYeah. Yeah. I wanted to jump in on that and say something about Apple and what makes Apple Apple. And part of it is, I think, it is the integration of software and design. It is also the quality of their products. Apple, as a company, did something very unusual. They set up their own special factories. So they are really in control of the manufacturing product in a way that no other company was.

  • 12:48:36

    SYDELLI actually think they have raised the level when it comes to design and its integration with software. Previously, software is separate from hardware. Apple said, no, and this was a dispute with Microsoft. This has been going on for a while. And that's part of what makes it. I mean, he's right. There are a lot of things about an Android phone that are probably better. Apple is also brilliant at marketing, Steve Jobs, marketing genius, but -- so it is -- he's got a point.

  • 12:49:05

    NNAMDIBen.

  • 12:49:06

    BEDERSONWell, I was going to say that what makes a product better is very, very complex, and what's better for one person isn't necessarily better for the other. So, just as an example, two of the reasons why I use an iPhone as my everyday device is, one, the mute button, the hardware button for turning the volume on and off is significantly better than the Android phones that I tried. And that's something I do 10 times a day. I'm in and out of meetings, and it's very important to me.

  • 12:49:31

    BEDERSONAnother reason is the fact that my family uses iPhones and my daughter buys a lot of music, and we want to be able to share music. So there's lock-in by design. So these two things alone would be enough for me to buy an iPhone, and it has nothing to do with anything that has come up. So the part that the -- what makes something good is very, very complicated.

  • 12:49:52

    NNAMDIAndrew, thank you very much for your call. Here now is Jay in Washington, D.C. Jay, you're on the air. Go ahead, please.

  • 12:49:59

    JAYHi. I had two comments, Kojo. First of all, referring to an earlier comment that these aren't the category of killing patents, I completely agree. I don't think that these patent wars are going to stifle innovation. Samsung is already coming out with what they call circle-to-zoom. So the design around is already in place.

  • 12:50:20

    NNAMDIWell, allow me to have Jorge Contreras respond to that aspect -- that part of your question.

  • 12:50:24

    CONTRERASYou know, I think that's great. And I think Laura mentioned earlier that this verdict might be the kind of thing that would reduce consumer choice. I think that will be -- if only for the next month or so -- I think that this type of verdict will increase consumer choice by causing companies to differentiate their products in more ways.

  • 12:50:45

    CONTRERASAnd there'll be more types of products and across a broad price ranging. Price is one of the other big factors that differentiates products. And, yeah, buying a phone that's a couple hundred dollars cheaper, and you circle-to-zoom instead of pinch-to-zoom, you know, that's a choice that consumers should have.

  • 12:51:03

    NNAMDIJay, your next point?

  • 12:51:05

    JAYAnd the next point was -- directly dovetails with that comment. I think the cost of the iPhone is sort of a red herring. If -- I have an iPhone 4S. I've had it for a year. If I want to upgrade to this exact same phone, which is their biggest memory, it would cost me $399 on AT&T. Amazon, yesterday, would have purchased my iPhone 4S from me for $460. So, you know, the cost is naught to me.

  • 12:51:33

    JAYIt's, you know, it may be built-in to the system, but those consumers actually get an excellent value. I can use this phone for a year, and I can turn around and sell it for $60 more than I paid for it.

  • 12:51:47

    NNAMDIWell, we have an entrepreneur on the other end of the line here.

  • 12:51:51

    BEDERSONI think the cost issues are complicated because, one, they do hold a lot of resale value. And, in fact, one the reasons that the cost doesn't go down as much as you expect, even though I'm not sure that -- that price sounds a little high to me, but -- that value. The reason is because after you've paid off your two-year contract, when you sell it, someone can buy it and doesn't have to get a two-year contract on it. And so that increases its value.

  • 12:52:12

    BEDERSONAnd so the other thing is, when you buy a phone, you're really buying a two-year contract, which is something like $2,000. So the $200 for the phone is 10 percent of the total price, which is, you know, relatively small percentage of the cost of ownership.

  • 12:52:25

    NNAMDIWell, Laura, I'm interested. What sense do you have for how price points for these devices, particularly the iPhone, are going to drive innovation for the rest of the market?

  • 12:52:33

    SYDELLYou know, it's a hard question because probably, you know, these companies to some degree are so large that the cost of these lawsuits becomes remarkably little in some ways. I guess the question becomes, if somebody else wants to get into the market, the little guy come up with new innovations, how do they get into the market? How does the new ingenious thing come forward and get through all of these patents that you have to get through to improve? I guess, it, you know, somebody -- I have not done the math.

  • 12:53:04

    SYDELLI would be curious if somebody could do that math and really tell me. There are some people who have done investigation of patents and have discovered that when companies -- this is Jim Bessen, who was up in Boston, had discovered that once a company is sued and these lawsuits happen, their stock price goes down and doesn't recover. There have been some studies that indicate that these patent wars actually do trickle down.

  • 12:53:30

    NNAMDIAnother discussion that Jorge and Ben and I were having, some of the most significant design changes in the newest iPhone going to force consumers to buy new accessories for their devices. The iPhone 5 will not work with old chargers. It won't be compatible with an entire generation of speakers, clock radios, docks. What do you expect are going to be the consequences of that shift, Laura?

  • 12:53:52

    SYDELLWell, you know, Apple already has that you can get yourself a little connector and adaptor for it, you know. So I think that's what's going to happen, and people will move forward. I mean, it's a pain 'cause you're going to have to buy a lot of adaptors if you got a lot of different devices, right? So, you know, it will, you know, over -- it'll be a pain. It's going to be a pain. There's no doubt about it. But it'll, you know, over time it will dissipate, I think. I don't think it's going to be that huge.

  • 12:54:18

    NNAMDIAnd back to the original conflict between iPhone -- between Apple and Samsung. Here is Rob in Columbia, Md. Rob, you're on the air. Go ahead, please.

  • 12:54:27

    ROBKojo, thanks, first of all, for taking my call. But, yeah, we kind of lost the thread here for a minute. But, you know, the whole rectangle with the rounded corner thing, that was like hard to program from the beginning, you know, and Microsoft can do it. And...

  • 12:54:52

    NNAMDIWhat do you mean hard to program?

  • 12:54:54

    ROBI mean, it was almost impossible to find, you know, like, a way to program like a rectangle with a rounded corner.

  • 12:55:03

    NNAMDIWhy is that?

  • 12:55:03

    ROBI mean, I don't know why it was hard, but it was hard. And...

  • 12:55:07

    NNAMDIWas it indeed that hard, Ben Bederson?

  • 12:55:10

    BEDERSONIn fact, not only was it not hard, it's irrelevant 'cause the software has no idea what kind of shape the hardware is. And so that's why this, you know, idea that somehow the characteristics of the hardware would make the device, you know, function better or differently is just kind of a red herring.

  • 12:55:28

    NNAMDIOK. Rob, thank you very much for your call. That gives us the opportunity to speak with Alex in Northern Virginia. Alex, your turn.

  • 12:55:35

    ALEXHey, Kojo. Thanks for taking my call. So one thing that I thought was really interesting about this case was there was another case a few months ago where it was Oracle versus Google. And the assertion that Oracle was making was that they could copyright their APIs, which is the contracts that different pieces of software used to talk to one another. And I thought that was an interesting case that drew a lot of parallels to this one.

  • 12:56:01

    ALEXThe other point I wanted to make is that, during the Samsung-Apple case, Samsung actually showed that Apple did not invent pinch-to-zoom. There was actually a device called a DiamondTouch that went back to 2001 that came out of Mitsubishi. And in 2003, some Apple staff were given a demonstration of this device, probably DiamondTouch, which had a pinch-to-zoom-type feature.

  • 12:56:23

    ALEXSo it seems more and more like in this industry, it's not necessarily the first people who invent something that get the legal rights to it. It's the first people that actually get a patent filed.

  • 12:56:33

    NNAMDIJorge Contreras.

  • 12:56:35

    CONTRERASYeah. You know, well, that's an excellent point. And the, I mean, there are two questions, two big questions in a patent case, right. One is whether the other party infringed, right, whether Samsung was doing the same thing as Apple. And the other one is whether Apple's patents were valid in the first place. If Apple's patents were invalid, then it doesn't matter if Samsung was doing what Apple was doing.

  • 12:56:57

    CONTRERASAnd the very interesting thing about this case is that, you know, after the jurors were interviewed and the case over, it seems they didn't even think about the validity questions. They ignored and threw out the evidence that they heard about whether or not Apple was actually entitled to those patents. They just focused on the copying or the alleged copying that Samsung did. So there is a lot of fuel for the appeals that's coming in these cases. And these will keep judges and lawyers busy for a lot of years.

  • 12:57:28

    NNAMDIThank you very much for your call, Alex. I'm afraid that's about all the time we have, except for this quick question. Ben, are there other companies or product lines that are capable of driving innovation in the family of tangential products in the same way that Apple has able to do with iPods and iPads and iPhones, any other company you can think of?

  • 12:57:44

    BEDERSONWell, I think -- I'm not sure exactly what you're getting at. But all companies have innovations in various ways for sure, certainly including Google and Microsoft and HP and Sony and Nokia. I mean, right -- every company has something -- bring something to the table.

  • 12:58:00

    NNAMDIBen Bederson, he's a computer science professor at the University of Maryland-College Park. Ben, thank you for joining us.

  • 12:58:04

    BEDERSONThank you, Kojo.

  • 12:58:05

    NNAMDIJorge Contreras is a professor at the Washington College of Law at American University. Jorge, thank you for joining us.

  • 12:58:10

    CONTRERASThank you.

  • 12:58:11

    NNAMDILaura Sydell is a digital culture correspondent for NPR. Laura, thank you for joining us. And...

  • 12:58:17

    SYDELLYou're very welcome.

  • 12:58:18

    NNAMDIAnd thank you all for listening. I'm Kojo Nnamdi.

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