Apple vs. Samsung: How Much Copying Is Too Much?

Everyone knows the story of the Wright brothers and their historic flight in December 1903. What you may not know is that the Orville and Wilbur Wright submitted a patent for their invention months earlier, which was eventually granted in 1906. Then the airplane patent wars began.

The Wrights sued Glenn Curtiss (among others) for infringing on their patent with his company's aircraft designs. The thing was, the Wright brothers' patent was so broad, it was virtually impossible to build any kind of aircraft without infringing on it. Eventually the two sides were forced to settle their differences at the advent of the First World War, when the U.S. government stepped in and created a temporary patent pool for wartime production, which eventually became permanent. (Get a fuller account here.)

We're now getting a taste of what that historic patent battle must have been like with Apple vs. Samsung. While the details are obviously much different, the soundtrack of both cases sounds eerily similar. Curtiss tried to defend his plane designs' legality by changing them here and there or basing them on different lateral-control technology. It echoes of fighting over rounded corners or iOS vs. Android.

The Inevitability of Imitation

However, this time there's no war to cut litigation short, and a victor will soon emerge. Now that closing arguments in Apple vs. Samsung are over, Judge Lucy Koh will ask a jury to decide, as in the Wright brothers' case from a century ago, whether or not Samsung violated Apple's patents, and vice versa (in counterclaims).

The jury will do so through a form. A form that's hundreds of questions long. They'll decide — patent by patent, product by product — exactly where Samsung or Apple may have crossed the line, and in doing so broadly answer the question: Where patents are concerned, how much copying is too much?

"I'll bet you if you look under the hood of any company,you're going to see a lot of stuff like, 'We like the way this looks,' or 'Let's try to come closer to these design elements,'" explains Paul Garcia, an intellectual-property attorney with the firm Kelley Drye & Warren, who has done (unrelated) IP work for both Apple and Samsung. "The big question is, will the jury have an emotional reaction to those internal documents, because not all copying is bad copying."

Some copying is inevitable in any industry that isn't a monopoly. Today, all planes are based on the Wright brothers' vision of controlled flight. While current patent law tries to deal with such broad technologies with what are called standard-essential patents — where the holder essentially must allow licensing of the tech — some of the non-standard claims made in Apple-Samsung are just as broad.

Look. Feel. Copy.

For example, Apple says Samsung's products imitate the "look and feel" of Apple products. That may be true, but it's a slippery slope. A Lexus arguably imitates the look and feel of a Mercedes. My Logitech webcam has a very similar look and feel to a Microsoft one. And, yeah, the Samsung Galaxy S II looks and feels like an iPhone in some ways. But so do dozens of other phones — even non-Android ones (case in point: the MeeGo-based Nokia N9).

SEE ALSO: Conan O'Brien Spoofs Apple, Samsung Patent Trial

You simply can't build a tablet today without creating a rectangular device with rounded corners, which an Apple patent absurdly lays claim on (just check Design Patent 504,889). Certainly, Apple gets into much more detail about how Samsung violated its patents. The iconography claims make Samsung look particularly bad.

But there's a contradiction in Apple's argument: It says Samsung's products are nothing more than Apple knock-offs, but if that's the case then why are they so popular? Surely Samsung hasn't duped everyone who bought a Galaxy S II or Galaxy Tab. Their marketing can't be that good.

Land of No Confusion

I think even Apple knows that consumer confusion isn't really a factor. If anything, many consumers are opting for a Samsung device simply because it isn't an iPhone or iPad. Speaking as someone who regularly uses both kinds of devices, they each have distinctive looks and feels, and which you prefer is really a matter of personal taste. Consumers want choice, and Samsung, along with other Android manufacturers, offers that.

"[Copying] can benefit the consumer as long as they're not being confused," says Garcia. "Too much protection is bad, because it obviously gives one company too much power to exclude others and raises prices for consumers. Too little protection is bad, too, because then you don't have the incentives and you could have cheap knock-offs, so striking that balance is really the key."

Even Orville Wright, before World War I, seemed to acknowledge that it would be a good thing if more people built airplanes, and eased up on other patent litigation even as his case against Glenn Curtiss dragged on. An airplane monopoly wasn't in the world's best interests.

Neither is a tablet or smartphone monopoly. While I don't think that's Apple's goal, a victory for Cupertino could have a chilling effect on the rest of the mobile world. Companies won't stop making tablets, of course, but the lines separating what's copyable and what isn't will get clearer. If rectangles are out of bounds… well, things could get ugly, quite literally.

Apple vs. Samsung has at least one more direct parallel with the Wright brothers case from all those years ago: Whatever the jury decides, the case will continue for a long time with appeals and further litigation. This is in no way the end.