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| Authored by: Anonymous on Wednesday, August 08 2012 @ 11:58 PM EDT |
Apple is making a bunch of legal claims. It hopes nobody
(certainly not the jury) can easily tell them apart, because
"they must have copied us, so we deserve all their profits"
isn't exactly what any one of the applicable laws says.
Trade dress and design patents are both abominable, but in
different ways.
Trade dress is sort of like trademark, except that "dress",
unlike a "mark", doesn't have to have one particular shape
or consist of a particular word or phrase. There's a famous
case where one chain of Italian restaurants sued another
one for using the colors of the Italian flag on the awnings
of the restaurant (plus a few other traditional elements
like checkered red tablecloths). Abominable: no clear
boundary to what's claimed, no advance notice to potential
unwitting infringers, insufficient requirements for
plaintiff to demonstrate originality, insufficient ability
for defendants to escape based on priority or independent
invention, totally vague standards for deciding "likelihood
of consumer confusion", basically all the imperfections of
trademark law but magnified by the damnable vagueness of
what constitutes "trade dress."
Design patents, on the other hand, have the legal mechanics
of patents but apply to the subject matter of copyright:
only the "ornamental" parts of a design are covered. (Note:
the specific design of an icon, or of a font, is considered
ornamental.) Like patents and unlike copyrights,
infringement can occur without actual copying: independent
invention is no defense. They have all the problems
associated with a broken patent office (in 1938 somebody got
a design patent for buildings that look like teepees), plus
the needless multiplication of lawyers due to the very fact
of having an additional special category of patent law, but
at least their term is "only" 14 years (unless Congress
extends it for particular designs, which they have done
several times, though I don't see how that can be
Constitutional).
[ Reply to This | Parent | # ]
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| Authored by: Anonymous on Thursday, August 09 2012 @ 04:20 AM EDT |
| Unless I'm not reading things correctly part of the claim is colorful icons in a
grid arrangement. I used to own a Palm m505 and it had both: image and it was
released in 2001. [ Reply to This | Parent | # ]
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