Samsung Invokes Kubrick Defense in Apple Tablet Fight

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Samsung has pulled out all the stops in its legal battle against Apple over Samsung’s Galaxy Tab Android tablets, invoking what we are dubbing The Kubrick Defense in a U.S. court. In documents filed by Samsung, the company claimed, essentially, that it could not have stolen Apple’s iPad design because tablet devices were first seen in Stanley Kubrick’s classic 1968 film, 2001: A Space Odyssey.

Noted patent commentator Florian Mueller first spotted the evidence, which was filed with the U.S. District Court for the Northern District of California in response to a motion for a preliminary injunction filed by Apple Inc in July. Apple is asserting that several of Samsung’s Android devices infringe on a design patent that Apple owns (D504,889).

In that filing, Samsung submitted this frame from 2001: A Space Odyssey that shows two astronauts watching an interview on tablet devices while they eat.

Frame from

Frame from 2001: A Space Odyssey, as submitted by Samsung in a U.S. Court
(Click the image for a larger version)

Accompanying the image was the following exposition on how it figured into the company’s defense:

Attached hereto as Exhibit D is a true and correct copy of a still image taken from Stanley Kubrick’s 1968 film “2001: A Space Odyssey.” In a clip from that film lasting about one minute, two astronauts are eating and at the same time using personal tablet computers. The clip can be downloaded online [or view it below]. As with the design claimed by the D’889 Patent, the tablet disclosed in the clip has an overall rectangular shape with a dominant display screen, narrow borders, a predominately flat front surface, a flat back surface (which is evident because the tablets are lying flat on the table’s surface), and a thin form factor.

In other words, Samsung is arguing that the fictional representation of a tablet form factor in a film constitutes prior art that should invalidate Apple’s design patent. Never mind that the tablets in the film are effectively TV sets, not tablet computing devices, and that they aren’t touched by the actors.

Samsung’s point is that if its tablets look like Apple’s iPad, Apple’s iPad itself looks like a concept presented more than 40 years ago, and thus Apple shouldn’t be able to get a design patent for the concept of the iPad.

Florian Mueller opined that it would be “amazing” if the courts actually bought the argument, and we should find out whether or not that’s the case in a matter of days or weeks. There was other material filed in Samsung’s response, but most of it was filed under seal, and is thus not yet accessible by the public.

Segment from 2001: A Space Odyssey, as linked to by Samsung in a court filing

Comments

John Martellaro

If I were an attorney, I would like to find out if Science Fiction films constitute prior art. Also, I wouldn’t think Apple would object to the display of video on a tablet.  Microsoft/Pen tablets have always done that.  I would think the specific issue is the look and feel and operation of the home page, multi-touch etc.  IMO.  Your turn Nemo.

Nemo

Samsung is getting desperate.  Apple’s patented designed is for the ornamental design of its fully functional tablet computer, not the design of a non-functional movie prop.  And it is not clear whether the two props in 2001:  A Space Odyssey in the clip, supra, were meant to be designs for computers or some other device, such as simply a small, portable TV, which is also outside of the scope of Apple’s design patent.  Nonetheless, Samsung’s ploy will result in extensive review of 2001:  A Space Odyssey, its screenplay, and all of the Prop Master’s notes, if they still exist.  And, of course, when 2001:  A Space Odyssey was made in 1968, it was impossible, using the then extant technology, build a tablet computer that had the design of the iPad.

In short, Apple is claiming rights in the ornamental design of its iPad, not right in the ornamental design of a movie prop.

geoduck

So….
Because Jules Verne described an airplane in his novel the Master of the World, Boing should lose all of their patents?

MOSiX Man

How could this even make sense? Those are obviously flat screen displays, not tablets. Besides, this is a trade dress suit and those things look very little like iPad. They are significantly bigger, appear to have an angled back and sharp corners, and a row of some kind of buttons along the bottom-front edge. Other than being a flat display surrounded by a black border, they look and behave nothing like an iPad. There are tablets that look a lot more like an iPad that Apple does not appear to take issue with.

Jamie

But wait - if this were admissible (shudder. What is wrong with our legal system?) - wouldn’t Samsung itself be in violation too? This is fuzzy GOOG-logic. Wouldn’t a competent lawyer have pointed out this obvious technicality to Samsung (and yes, I know, I know. None of that is the point, but still)? Sometimes at night, I weep for my country. wink

webjprgm

wouldn?t Samsung itself be in violation too?

The point is to invalidate Apple’s patent, not to say that Kubrick owns a patent that both Samsung and Apple violate.

RonMacGuy

I can just hear Mr. Rogers (from Mr. Rogers’ Neighborhood) saying:  “Children, can you say ‘desperation’?  I knew that you could.”

I can’t wait to see how all of this pans out…

Nemo

Folks here is the section of the U.S. Code that sets forth the requirements for a design patent:

? 171. Patents for designs

Whoever invents any new, original and ornamental design for an article of manufacture may obtain a patent therefor, subject to the conditions and requirements of this title.
The provisions of this title relating to patents for inventions shall apply to patents for designs, except as otherwise provided.

After reviewing it, how would you argue that the props, supra, in 2001:  A Space Odyssey are not prior art that invalidates the ornamental design of the iPad?

mhikl

Whatever! None of the pad wannabes seem to sell and by pass sales to take stage left for the bargain bin or trash.

The fact that Samsung is so thin and so iPad-like, does Samsung seriously think Apple is going to continue to work with them? Does it make more money from the copies than they do from Apple orders? That would be interesting to see. The SS is learning a lot building Apple parts. And with Google into the phone build business, can the pad be far behind? Samsung should be looking at MicroSoft for their next OS mobile.

As Alfred E. Newman would say, “What, Me Worry?”

Regardless, Apple has no choice but to protect its propery.

daemon

@Nemo: Is it possible to claim that the tablets in 2001 were not an article of manufacture?

Also, inregards to design patents on props from Sci-Fi movies, what do you think of Storm Trooper helmets? Do you think it’s fair that the design patent for them has expired in the UK while here in the US they’re still in full force?

russell

Flat screen ?  How long ago ????  Digital watches weren’t even invented when the first moon landing took place.

Looks like it could be 2 CRT TV’s set into the table to give an appearance of tablets but the cost of a videotape machine to run them would have been so high they would have been showing film from a telescanner - so it’s much more likely back projection from a 16mm film projector onto two semi-opaque screens through large holes cut out in table.  Even if one or both actors picks up a flat object that looks like one of the screens it would be no more that a block of wood and then film cutting techniques are used to make the screen that is set into the table appear to be the same object.  Kubrick (and his team) produced outstanding special effects (and some totally crap ones too) so no reason at all to believe these are actually flat screen displays or pad like objects.

An aside: the much more recent first Hitchhikers Guide films by the BBC used hand drawn frame-by-frame graphics to simulate computer output and even fooled a number of computer professionals.  http://boards.straightdope.com/sdmb/archive/index.php/t-456535.html
Quote from “Scissorjack”
The “computer graphics” from the BBC TV version of “Hitchhiker’s Guide to the Galaxy” were also all done through conventional animation. Real computer graphics would have been too expensive. And those graphics look like they could have been whipped up on my old Apple //e.

The “how they did it” on the DVD was pretty interesting. The animators used drawn line animation for the graphics and exposed each letter a shot at a time for the “scrolling” text: ind it fooled many computer experts at the time, who wanted to know what kind of system they’d used. (...)
The bit that gets me, though, is how they got the moving “computer display” on the prop Guides that the characters were holding in some shots. We take it for granted now that there are hand-held devices with video screens - or that similar video effects could be simply green-screened in - but back then the technology simply didn’t exist, and they had to manually project the “computer animation” through a screen within the handheld prop - using a camera and a lot of guys shuffling about on the floor out of shot - so that it would appear as it the Guide itself had a video screen. The effect is almost flawless, so much that you don’t even notice that what it was depicting was effectively impossible over 25 years ago.
—end quote—

Russell.

FlipFriddle

Good lord. Those aren’t tablets in the movie. They are CRT screens built into the table, not a portable device. They should watch the film and not make conclusions from a single frame. They are getting desperate. If they are using this nonsense as a defense they should have cited the PADDs from Star Trek: TNG which were portable and flat.

Really pathetic.

ziploc

As someone who was born when 2001 was made and therefore saw it even 10 years after it was made, I never had the impression that those were supposed to be portable flat devices.  Given the symmetry of how they are positioned on the table I always assumed they were just supposed to be “table TVs” which back then was very cool idea, even for the “future”.  They were never picked up in the movie and never used off of that table in that spot.

A better pre-iPad device to compare to would be the “Star Trek The Next Generation” handheld computer tablets.

Either way it’s a very soft argument, that basically admits that their design is not original and now they are trying to prove that neither is Apple’s.

lhallberg

The devices are supposed to be fixed TV screams upside down in the table.  You see it at first as ta let’s ONLY because of what apple HAS truly invented and put into your predisposition.

Samsung is drinking some funny colored Kool-Aid.

daemon
Ross Edwards

A better pre-iPad device to compare to would be the ?Star Trek The Next Generation? handheld computer tablets.

they should have cited the PADDs from Star Trek: TNG which were portable and flat.

Agreed with both of you.  The PADDs are so obviously a major design influence for the iPad that if this argument were ever to have a chance to succeed, it needed to acknowledge them.  My wife and I are watching the TNG series through Netflix, and we’re constantly amazed at noticing now just how iPad-like the PADDs really are: They have full wireless access to the computer’s databases, they serve as remote controllers, they are shaped the same, they have a touch interface, and so on.  Of course, they are also props and not “articles of manufacture,” as daemon noted.  Heck, slap an LCARS skin onto iOS, and the PADDs become reality.

And all this is old news anyway considering the Moto RAZR is a close copy of the ST:TOS communicators, and the ST:TNG tricorders are basically hybrids of modern smartphones and medical instruments (though with the design paradigm of early clamshell mobile phones).  Either of those cases would have been cited long ago if they had legal authority to control in a patent controversy.  This is really a case of life imitating art, because the nerds who designed the real modern devices grew up watching science fiction.

Nemo

Dear daemon:  You hit on what would be my primary argument:  Before we even start arguing about whether the props in Odyssey invalidate Apple’s patent as instances of prior art, we have to ask the question of what articles of manufacture are we referring to.  Apple is asserting a design patent in an article of manufacture which is its iPad tablet computer, while the articles of manufacture in Odyssey are two props, which are very different articles of manufacture and which may not even be meant to represent computing devices. 

So I would argue to the court that, no matter what the design of the props in Odyssey, their design cannot be prior art for the iPad’s design, because the props are not the relevant article of manufacture, that is, they are not tablet computers but are merely movie props, and, as such, they are not and cannot be prior art for the design of tablet computers.  This argument would be reinforced if Apple can adduce evidence that Odyssey’s props did not represent computing devices, though this would not be necessary for my argument, that the props are not tablet computers, to prevail.

The article of manufacture and the design are necessarily linked so that the design at issue must be for a particular article of manufacture.  Therefore, even if a Samsung engineer/designer or some other engineer/designer drew a tablet computer on paper or on another medium or made a prop of a tablet computer well before Apple’s design patent on its iPad, that drawing or prop would not be prior art because the drawing or a prop is a different article of manufacture than a tablet computer.  Only once such a drawing was manifest in the form of an actual tablet computer could it constitute prior art for tablet computers.

Props aren’t computers; end of story, for if that were not the end of the story, the ancient stone cuneiform tablets of Sumer, which date from the 30th century B.C.E., would, as prior art, invalidate the tablet as a design for all subsequent articles of manufacture.

daemon

So I would argue to the court that, no matter what the design of the props in Odyssey, their design cannot be prior art for the iPad?s design, because the props are not the relevant article of manufacture, that is, they are not tablet computers but are merely movie props, and, as such, they are not and cannot be prior art for the design of tablet computers.

Nemo, there’s a long tradition of “Patent Trolls” who own patents on things that they’ve never manufactured. What is the real difference between a patent on an invention that has never existed and a movie prop?

Nemo

The difference is that there is no such thing as a valid patent on an invention that never existed.  An essential part of a patent application is the Description, which must contain a sufficient description of the invention so that one skilled in the art can make the invention that performs the functions covered by the claims.  Though the USPTO does not require that a working example of the invention accompany the patent application, if it is subsequently shown that the Description does not describe a working invention or an invention that does not perform the functions set forth in the calims, the patent will be invalidated for those claims where the invention fails to perform as set forth in the claims, and if the invention does not work to perform as set forth in any of the claims, there are no valid claims and, thus, the entire patent would be invalid.  So the invention always exist in the Description to the extent necessary to support the claims, and if it does not so exist in the Description, some or all of the patent’s claims are invalid.

Also, the original inventor always has a working prototype, which his patent lawyer usually sees before prosecuting a patent.

daemon

Design patents are different tho, aren’t they Nemo?

Nemo

Dear daemon, I thought that you were referring to utility patents, though I should have made that clear in my comment, supra. Design patents are patents on ornamental design, while utility patents are patents on the function of an invention.  However, with a design patents, to get a patent, you must present the ornamental design of the article of manufacture to the USPTO, in the form of a complete specification, that is, description, with images and/or drawings that fully set forth an accurate and complete depiction of the design with all of its the essential features.  So once again, the USPTO will not grant a design patent without a full description and depiction of the ornamental design that one is seeking to patent.

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