One of Apple's most recent design patents is Patent No. D668,263. The patent claims "The ornamental design for a display screen or portion thereof with icon, as shown and described." As the image shows below, the patented ornamentation is basically the design of a musical note with a surrounding circle and roughly resembles the iTunes icon. Although design patents are purported to be examined for novelty and obviousness. In reality they are not so examined.
In my view, design patents such as these would be fine so long as they are given exceedingly narrow scope (which they often are) and if the courts allowed for some amount of fair use (which they do not).
The senate recently passed a bill that would extend the design patent term an extra year–to 15 years from patent issuance.
The question: Is Patently-O infringing the design patent by showing the image on your screen?
For example if the joining bar is straight (which is more common) or curved “inwards” (which looks more elegant which looks better and is more commonplace in hand-written material), who would dare predicting the outcome of a jury decision
LOL. A jury trial?
This thing dies on summary judgment and you get your fees paid.
well, as shown in this case, with the USPTO – headers still present, things should be ok, as patent documents are in the public domain by design..
But I think the real problem (and the reason why this design is noteworthy) is that Apple will not shy away from using this registered design against any occurence of joined eight notes, whatever orientation and surroundings, and irrespective of being introduced before or after Apple’s filing..
For example if the joining bar is straight (which is more common) or curved “inwards” (which looks more elegant which looks better and is more commonplace in hand-written material), who would dare predicting the outcome of a jury decision, wiht or without a jury member having
a) written a note him/herself
b) filed a design patent
c) retired from grocery selling or postal services
d) seen a note earlier
?
Yes, yes and maybe.
Can a bullet have an ornamental design? How about an internal engine part?
Yes, and yes.
Now it’s your turn. Is software an article of manufacture? If so, can it have an “ornamental design”? Is a transient display based on data received over the Internet an article of manufacture?
“The question: Is Patently-O infringing the design patent by showing the image on your screen?”
In copyright law, whenever the First Amendment is raised as a defense, the answer always is that Fair Use takes care of any First Amendment issues. (Not sure if that is true, but that is what is commonly asserted by courts.)
If there is no Fair Use doctrine in patent law, the First Amendment is still there. Were Apple to sue on this blog post, I would think a First Amendment defense would be a good bet for the defense to assert.
Not many Apple users here are there. The design is a slight variation of the standard iTunes logo you see in the dock on any Mac since OS X came out.
Just more evidence that design patents have become a registration system with no actual consideration by examiners.
Nice attempt at obfuscation… law rules out interpretation…?
remedies dictating base law….?
While discussing 101, the comment applies to this situation as well (let me know if you need a pincite):
“further the purposes of the Patent Act and are not inconsistent with its text.”
Interpret law – not write law.
Which law in particular rules out such an interpretation? Isn’t the court always free to, say, award no injunction and nominal damages in a class of cases where that is considered appropriate?
Interpret law – not write law.
as opposed to “cannot.”
Why can’t they? Where does the current law say they can’t? And if you plan to cite caselaw, bear in mind that there’s always a court that can overturn caselaw, so it’s still properly “do not” as opposed to “cannot”.
Is the orientation a feature of the design? If you rotated it 180 degrees so that the connecting bar is below, does that avoid the claim?
To answer questions above, the design-patenability of screen display icon designs was settled in the PTO by an expanded Board decision (including the Commissioner himself) – In re Strijland.
I wonder how Cherie feels about this. See her ascending eighth notes at:
link to fotolia.com
“Those same “persuasive arguments” that Breyer’s clerks somehow missed when he wrote about integration instead of some silly [old step] + crrp theory in the case that, you know, you keep self defeating over?”
Maybe this is the reason MM has no pin cites, or exact quotes for any of his whacky [old step] + crrp theories.
In the mean time maybe he can answer the question…
Since the Prometheus Court told you 9-0, a concept integrated into a process transforms the process into an inventive application of the concept, why then can’t technology, such as software, integrated into a process transform the process into an inventive application of the software?
Those same “persuasive arguments” that Breyer’s clerks somehow missed when he wrote about integration instead of some silly [old step] + crrp theory in the case that, you know, you keep self defeating over?
Let us know when you leave your mythical universe and want to rejoin the real world.
Your comment MM is especially funny since you yourself have claimed that your posts here do that very thing.
I have asserted that my arguments might be found persuasive by judges or clerks because (1) I am articulate and (2) because I am careful to point out how approaches that I disagree with will, if adopted, lead to unacceptable results in the real world.
I have never claimed that my comments would be “treated inapproriately” by judges or clerks or that some opinion I express would be cited by a judge or a clerk as “the law” without further explanation. That’s an absurd proposition, hence my comment about “alternate universes.” You really need to get out more.
you accuse others of lacking integrity
“Others” is really just one or two commenters here. Everybody knows exactly who I am talking about.
Your comment MM is especially funny since you yourself have claimed that your posts here do that very thing.
And yet you accuse others of lacking integrity.
Amazing the way you slay prisoners.
The “do not” – as opposed to “cannot.”
Can a bullet have an ornamental design? How about an internal engine part?
does it matter if the details of the design are impossible to see in practice (e.g., that icon is usually smaller than my fingernail and I doubt anybody could tell if it’s a single circle or “three” circles surrounding the notes).
If these were real patents, with patent claims to “the design as shown in the drawings”, you could use a visually-indistinguishable icon with only two circles and claim non-infringement because one element of the claimed “invention” is absent.
Y’know, if these things were real patents.
The issue I am pointing out is that the comment is a bit inarticulate in that regards and casual readers (including perhaps judges or their clerks) might pick up on the comment and treat it inappropriately.
What part of “which [the courts] do not” did you think was subject to misinterpretation by the casual reader?
Paul, I hardly think the reason defendants want to avoid trial has anything to do with the expense of it.
This looks like the Microsoft Windows logo with notes inside it. Ammo for future battle with MSFT?
The issue I am pointing out is that the comment is a bit inarticulate in that regards and casual readers (including perhaps judges or their clerks) might pick up on the comment and treat it inappropriately.
LOL. It’s pretty clear that you’re not the best judge of what is and what is not “inarticulate.” Or of what is and what is not “insufferable,” for that matter.
It’s just another way for Apple to have a justification to sue and intimidate competition. These types of patents and the inevitable legal actions stifle innovation and competition
The issue I am pointing out is that the comment is a bit inarticulate in that regards and casual readers (including perhaps judges or their clerks) might pick up on the comment and treat it inappropriately.
Talk about alternate universes.
“That’s not Hobson’s choice, it’s Morton’s fork.”
I’ll take that with a grain of salt.
Thanks IANAE for leading me to Wikipedia, to Archbishop John Morton and to his opinion that “a man living modestly must be saving money and could therefore afford taxes, whereas if he was living extravagantly then he was obviously rich and could still afford them”.
Nothing more certain than death and taxes eh?
I suppose the good tax-levying Archbishop was careful to live neither extravagantly nor modestly and himself paid no taxes at all. Do we have a portrait. Was he fat, I wonder
Agreed. Is software an article of manufacture? If so, can it have an “ornamental design”? Is a transient display based on data received over the Internet an article of manufacture?
a unique ornamental design
What about obviousness?
Pretty sure I’ve seen hundreds of record, CD and musical instrument stores and/or displays over my lifetime with very very similar notes. The odds that there were circles involved seems close to 100%. Is someone going to argue that using two circles is non-obvious?
Also, I’m curious about an aspect of design patent “law” that is probably untested: does it matter if the details of the design are impossible to see in practice (e.g., that icon is usually smaller than my fingernail and I doubt anybody could tell if it’s a single circle or “three” circles surrounding the notes).
And did Apple cite its own use of similar designs prior to the filing?
the PHOSITA (skilled designer of music related icons?)
Okay, let’s pretend these things are really patents and it even makes sense to talk about a “PHOSITA”.
Even so, I’d have to think that a “skilled” designer of icons mostly has knowledge of marketing and graphic design and what people find aesthetically pleasing and memorable. He would have very little knowledge of the finer mechanics of the thing he happens to be designing an icon for. Heck, half the people writing the music that the app distributes probably can’t even read sheet music.
When selecting a musical note, such a “skilled” designer would probably be thinking that this is one of two images that regular people tend to recognize as “hey, it’s a music thingy!”, and he wouldn’t care what it means or even if it’s technically correct as a musical note.
I did a 10 second search and found about a dozen musical note icon design patents assigned to companies ranging from Microsoft to Acoustics to Intel. I’m not sure why this is considered newsworthy, or unusual. It appears to be a unique ornamental design
Because musical notation was invented ten years ago and the Internet is the only place on earth where information about the past is stored.
What are you talking about? Dennis suggested that it might be a good idea to apply a “fair use” notion to design patents “such as these.” He also clearly stated that this is currently not the law. Where exactly are the “conflation, muddling and ‘whatever-isms'”? Do the Patently-O terms of service prohibit Dennis from expressing an opinion, too?
Thanks for this clarification. Before this morning, I probably could not have drawn “ascending eighth notes” without assistance. I suspect that my description is probably more akin to the thinking of an ordinary consumer of the protected goods while your more detailed description is one that is probably more closely aligned with the PHOSITA (skilled designer of music related icons?)
force defendants into a Hobson’s choice of an expensive settlement or an expensive trial,
That’s not Hobson’s choice, it’s Morton’s fork.
Re: “design patents such as these would be fine so long as they are given exceedingly narrow scope (which they often are)”
Maybe, IF proper claim scope is provided in a promptly considered summary judgment motion by the D.C. judge who does not force defendants into a Hobson’s choice of an expensive settlement or an expensive trial, and also IF the judge does not improperly allow jury comparisions of the respective products, rather enforce a proper comparison of the design patent drawings to the accused product, and also IF the Functional features are clearly excluded from an infringement comparision. [Three “IF’s” that seem to be all too often missing?]
[Also, effective use of reexaminations of design patents has been surprisingly infrequent. Futher as to validity, I think the Fed. Cir. needs to consider why it is not clearly an consistently defining who the 103 “person having ordinary skill in the art” is for new idustrial designs,especially if the design patent is NOT being given a very narrrow scope.
So are we all infringing the patent by viewing it on our computer displays? Seems to point out a fundamental problem with permitting design patents for icons that are displayed rather than being permanent fixtures on their corresponding articles of manufacture.
Yes – the point of the comment was the obvious conflation.
Conflation, muddling and “whatever-isms” are not good things.
Re fair use: At least for design patents that could have been entirely covered by copyright law.
From the patent: “The broken line showing the display screen or portion thereof forms no part of the claimed design.”
Thanks for the link – a good read for how not to argue a trademark dispute.
Interestingly, Apple also tried to register a very similar design as a trademark and lost its appeal before the TTAB – link to ttabvue.uspto.gov
Anyone notice how similar to the Microsoft wavy-windows icon the background of this design patent is?
Fair Use notion for patents…?
sorry, last stab: the design shows triple-ringed ascending eighth notes.
to be exact (and a bit more serious), the design shows triple-ringed eighth notes; a bit narrower than just an encircled note.
to be fair, the design shows encircled (triple-ringed?) musical NOTES; a scope much narrower than an encircled musical note.
Is it pick on Apple week? I did a 10 second search and found about a dozen musical note icon design patents assigned to companies ranging from Microsoft to Acoustics to Intel. I’m not sure why this is considered newsworthy, or unusual. It appears to be a unique ornamental design of a musical note in a triple ring.
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