posted by Thom Holwerda on Thu 11th Aug 2011 09:22 UTC

Iteration, variation, prior art, & obviousness


Iteration & variation

This unchecked growth in community designs has had disastrous consequences for the kind of filings the OHIM receives. Since everything is approved, the amount of bogus filings is enormous. The big problem, is, of course, that these filings are actually not bogus at all; each and every one of the following filings has been granted and is in effect, meaning each and every one of these has the potential to form the basis of an injunction.

The first thing you notice while browsing through, say, Apple's filings is that there is a system behind Apple's filings, a system which allows them to file loads of different filings all for the same device. I've dubbed this process 'iterative filing', because that's what it is. What Apple - and I'm sure, others too, although I haven't found any - does is file everything from crude sketch to actual product device photos.

This makes sense from Apple's perspective; a Community Design containing nothing but photos of an iPhone is useless, since its potential as an anti-competitive weapon would be limited. No, far more effective are various sketches of devices roughly shaped like iPhones, since with these, Apple can effectively target anyone who makes a slab smartphone. While the photographic filing clearly does not cover my HTC HD7, the rough sketches may.

All these were filed on the exact same date. The same goes for the example of the iPod nano below.

Also remember that these are not all the iterations - I just selected a few. In addition, these are by far not all the sets of iterations; there are iterations for iMacs, PowerMacs, for other versions of the iPhone, and so on.

It gets worse. Apple also files the same basic design with only minor variations. See the distinct markings on the filings below?

These exact same markings return on several collections of filings years and years later, for example, on the following two sets below. All of these were filed on 29-02-2008:

And this set:

Apple filed a grand total of 97 Community Designs that day. All are marked as granted. Each and every one of these can be the base of an injunction. None of them have ever been reviewed by anyone.

This clearly indicates that Apple has an internal procedure in place to apply these exact same variations on different basic designs, in order to get their hands on as many Community Designs as possible. These variations have never come to market in any shape or form, meaning that the only reason Apple does this is to build up an arsenal of Community Designs.

If this doesn't illustrate how broken the Community Design process is, I don't know what does.

Oh wait, I actually do: the Community Design used to block Samsung's Galaxy Tab 10.1 isn't even about the iPad it is supposedly copying. Community Design 003781832 was filed on May, 25, 2004. One year before development on the iPhone started, and almost 6 years before the iPad 1 was announced. This means that Samsung's Galaxy Tab 10.1 has been barred from the EU market using a vague Community Design consisting of a few extremely generic sketches that was filed over seven years ago, regarding a product that, in all likeliness, considering the lack of further, more detailed iterations, didn't consist of more than an idea in some Apple engineer's head and some sketches on a cafeteria napkin.

There are Community Designs for the iPad as well. Not sure about the iPad 2 - the search results were capped at 1000.

If this, then, doesn't illustrate how broken the Community Design process is, I don't know what does.

Oh wait, I actually do.


Prior art & obviousness

So far, I have not yet found a company that uses the same systematic approach to filing Community Designs as extensive as Apple has done (although Microsoft comes close every now and then). Other companies also have filings, but not nearly as many as Apple. Apple has at least 1000 filings, but the search results are limited to 1000 returns. The 1000th filing in the results dates from October 1, 2010. What I have found, however, are a lot of cases of clear prior art and obviousness.

To stick with Apple: it has a Community Design for a folder icon, or an on-screen keyboard. Animation of flipping a page in a book? Yup, Apple has a Community Design for it.

Microsoft has a Community Design for an enveloppe icon. For a selection area (at least, that's what I think it is - like I said, no descriptions). And, of course, Microsoft has a Community Design on various types of windows. Not Windows - windows. Heck, Microsoft even owns Community Designs over random assortments of squares on a computer screen - no explanation, nothing.

One of the worst Community Designs from Microsoft covers waving your right hand. I kid you not. This is related to Kinect, of course, but it is listed as an interface element - meaning, the actual gesture of waving is now a Community Design.

What about Google? Well, Google only has nine Community Designs, and they're all very cryptic - I recognised none of them.

Table of contents
  1. The registration process
  2. Iteration, variation, prior art, & obviousness
  3. Not all bad & conclusion
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