The "Community Design" scam exploited by Apple

[s44]

Jaw-dropping stuff. Of course, since it's the EU, it's the work of faceless unelected bureaucrats and not any sort of representative body.



I locked yesterday's Apple/Android lawsuit thread. Please keep this discussion civil and respectful.

Moderator PM

 

[DivideBYZero]

Jaw-dropping stuff. Of course, since it's the EU, it's the work of faceless unelected bureaucrats and not any sort of representative body.

Who elects the USPO?

 

[s44]

Who elects the USPO?

Very funny.

Despite the powers of the Patent Office, the framework for patents and patent coverage is pretty closely enumerated by acts of Congress.

In the EU, bureaucrats can and do just make up ridiculous categories and methods of "protection" like this one out of whole cloth.

 

[Red Storm]

The EU - more specifically, those making laws like these - sound like a collection of absolute retards.

 

[vshah]

christ what a retarded system.

 

[Genx87]

Leave it up to Europe to take a borderline bad system for this kind of stuff and make it retarded.

 

[akugami]

Community Design trademarks sounded like Trade Dress at first. Then they outlined the lack of checks and balances and it really is basically a free nuke large companies can use to launch attacks at each other or smaller players. At least with Trade Dress you have to do some proving before you can successfully file an injunction against another person/company.

 

[gsaldivar]

 

[JeffreyLebowski]

Well if this is the case, I'm sure someone has used the Community Design for a cell phone and can ban apple from selling iPhones in Europe.

 

[JeffreyLebowski]

The whole patent/IP/ ect system I'm seeing more and more as a joke.
While I don't think Company B should be able to make a copy of Company A's product and sell it as such, I do think that if Company B makes a similar product to Company B and it is clearly defined as different, IE, iPad with iOS or Galxy Tab with Android, if they share things like html redirect links, and handling of code ect, they should just be allowed to compete in the market place and let consumer choose which one the want.

 

[kubani1]

Leave it up to Europe to take a borderline bad system for this kind of stuff and make it retarded.

leave it to an american to take anything and obnoxiously sue the hell out of anyone to make it worse for everyone.

 

[Anubis]

The whole patent/IP/ ect system I'm seeing more and more as a joke.
While I don't think Company B should be able to make a copy of Company A's product and sell it as such, I do think that if Company B makes a similar product to Company B and it is clearly defined as different, IE, iPad with iOS or Galxy Tab with Android, if they share things like html redirect links, and handling of code ect, they should just be allowed to compete in the market place and let consumer choose which one the want.

GTFO with your logic

 

[alent1234]

The whole patent/IP/ ect system I'm seeing more and more as a joke.
While I don't think Company B should be able to make a copy of Company A's product and sell it as such, I do think that if Company B makes a similar product to Company B and it is clearly defined as different, IE, iPad with iOS or Galxy Tab with Android, if they share things like html redirect links, and handling of code ect, they should just be allowed to compete in the market place and let consumer choose which one the want.

except that a lot of the patents on little things how an OS uses memory were patented back in the 1990's by MS and Apple during the great OS battle royale. i remember when protected memory came out in the 1990's and it was a big deal


supposedly linux always violated those patents but there was no reason to sue until now

 

[3chordcharlie]

Apple has Community Design 003781832 protection for 'rectangle'.

I have to admit I ignorantly thought this whole case was about real similarities and possible stealing of ideas. I didn't realize Samsung had stolen an idea as fundamental as making their tablet rectangular.

Presumably Bridgestone will be suing Goodyear next week for making round tires.

A-mazing!

 

[Bateluer]

except that a lot of the patents on little things how an OS uses memory were patented back in the 1990's by MS and Apple during the great OS battle royale. i remember when protected memory came out in the 1990's and it was a big deal


supposedly linux always violated those patents but there was no reason to sue until now

Most of the memory patents were incorporated into the JEDEC conference standards. MS, Linux, Apple, etc are all free to use them. Aside from Rambus' dirty/shady dealings, they were open standards.

 

[poofyhairguy]

leave it to an american to take anything and obnoxiously sue the hell out of anyone to make it worse for everyone.

Wait- so you are blaming Apple for actually using Europe's terrible statues?

If anything you should be thanking them. Only by abusing the system does it get reformed.

 

[theeedude]

It's time for fanboys to admit Apple is a patent troll.


I'm pretty sure that this comment doesn't follow my 'civil and respectful' request above.

Moderator PM

 

[runawayprisoner]

Looks like the big guys already have enough guns and ammo to shoot down anyone daring to enter into the new tablet business.

Which basically means you can't just open up a computer company and make a new tablet like Steve Jobs did in his garage some 30 years back.

Times have changed, eh?

On the other hand, it's quite amusing that Samsung got its Galaxy Tab banned because it came up with a design someone else already thought of... 7 years ago.

 

[theeedude]

They could get all candy bar phones banned too, because they "thought of" that design too.

 

[runawayprisoner]

I must admit, if it is to look at things rationally, Apple is a big patent troll right now. It looks more like bullying, but it's still patent trolling.

The bad thing about it is... they do have the justification and the cause to do it. It's like saying "don't feed the troll" to folks who have big buckets of food in both hands.

I guess "good artists copy, great artists steal" is being taken very literally.

 

[you2]

Can anyone verify that the provided description of 'community design' is accurate? I mean surly it can't be - can it ?

 

[pm]

Can anyone verify that the provided description of 'community design' is accurate? I mean surly it can't be - can it ?

On the surface, yes, the description in the article is largely correct. So if you read the article, the description largely matches up with this:
http://oami.europa.eu/ows/rw/pages/RCD/communityDesign.en.do

The article ignores that a community design can be invalidated if it's shown not to be novel (ie. unique).
See:
http://oami.europa.eu/en/office/newsletter/pdf/Invalidity _courts_ForPDFDocument.pdf

The article is, in my opinion, written in a style that is biased both against Apple and against the EU regulations on community design. So the author - again, in my opinion - is ignoring evidence that's contrary to his core argument - which is that Apple is gaming the EU legal system and they can do so because the system is massively flawed.

If you read the PDF linked above, a third party can request that a community design be invalidated for lack of novelty (ie. there is prior art that invalidates the claim of the design).

If you read this link:
http://www.communitytrademark.org/advice/artikel/new_community_design.htm

they say

To provide a few examples for grounds of invalidity, a Community Design can be declared invalid if it does not comply with the legal definition of a "design", if it lacks novelty or individual character over designs, which have been made public before the filing date of the Community Design, or if the design constitutes an unauthorised use of a work protected under the copyright law of a Member State.

In April 2004, the first decision on an invalidity request was announced by the competent Invalidity Division. In the meantime, nine decisions have been issued, resulting in a declaration of invalidity for five Community Designs. In most of these cases, the request was based on a lack of novelty and/or individual character. When discussing the requirements for individual character by comparing the features of the Community Design with those of earlier designs, the Invalidity Divisions emphasized that the functionality of the product covered by the Community Design has to be taken into consideration. It was argued that the basic structure of a device is simply the consequence of its functionality (i.e. a specific technical effect to be achieved) and imposes specific restrictions on the designer in developing the design. Therefore, the informed user focuses his attention on features, which are not necessarily implied by this function and, consequently, deviations in these features are more relevant for the assessment of individual character.

Since the OHIM Invalidity Divisions have just started to take decisions on requests for the declaration of invalidity, a well-established case law has still to be developed. We will continue to carefully observe the OHIM decisions on Community Designs and will inform our clients about new and interesting legal developments in this field.

which is a bit of dense legal terminology in my opinion which says to me that the courts are looking at prior art, and in 5 out of 9 cases, they have invalidated the Community Design for various reasons.

So, no, I don't think the article is accurate, but the issue with the article is what it omits and not actually what it says - as well as a clear and obvious bias.

 

[you2]

Thanks PM; so it is a legal mess much like patents but not nearly as one ended as originally described. I guess the problem I have with patents (and community design) would be that it is too easy to get something approved and too expensive to get it invalidated. I.e, I agree that ideas/concepts should be protected with law so in that sense I like the idea of patents and similar laws that protect intellect property; but generally I feel the implementation needs a bit of work (needs to be more difficult (not more expensive) to obtain protection and cheaper to invalidate. Also I don't really like the idea of intellect trolls (i.e, those who buy patents and similar) and would like to see something done in this area (perhaps you can only sue if you are actively using the patents or similar).

I guess this is a divergence from the original statement in the tread so I'll hush.

 

[soccerballtux]

Thanks PM; so it is a legal mess much like patents but not nearly as one ended as originally described. I guess the problem I have with patents (and community design) would be that it is too easy to get something approved and too expensive to get it invalidated. I.e, I agree that ideas/concepts should be protected with law so in that sense I like the idea of patents and similar laws that protect intellect property; but generally I feel the implementation needs a bit of work (needs to be more difficult (not more expensive) to obtain protection and cheaper to invalidate. Also I don't really like the idea of intellect trolls (i.e, those who buy patents and similar) and would like to see something done in this area (perhaps you can only sue if you are actively using the patents or similar).

I guess this is a divergence from the original statement in the tread so I'll hush.

this is how most people feel, and yet if we ever got our politicians to engage in patent reform, I guarantee what they came up with would be worse than what we started with. Corporations would have a heavy hand in it...

 

[Dulanic]

It's a game of chess and Apple has all the pieces while the other sides have a few pawns. It is not Apple's fault the EU allows this bullshit, but there is no question they take full advtantage of a flawed system.