What happens if we go back another ca. 2000 years? Can we find writing tablets of the approximate same aspect ratio as the Apple iPad2 or the Samsung Galaxy Tab 10.1? We can. We can.
There is not that much new in the outer design of tablets in this field.
Let us take the Babylonian writing tablet designated as Plimtpon 322, which is dated to ca. 1800 BC. It is the most renowned mathematical tablet in the world of cuneiform script. People in the computer industry, which has a lot to do with math, should be well aware of it. They known their math. Nicht wahr?
Do we have a match? We do. We do. Plimpton 322 is 13 x 9 cm or ca. 5 x 3.5 inches, or about half the size of the iPad2. Not only that, but it presents four columns of cuneiform "numbers" (like icons) in 15 rows. The Apple iPad2 also has four columns of "icons". There are only limited possibilities of presenting symbols for legible reading on a tablet. In this regard, Apple claims as its own a tablet design feature already found 4000 years ago.
Plimpton 322 is partly broken [LawPundit comment: partly broken at the top left], approximately 13 cm wide, 9 cm tall,
and 2 cm thick. New York publisher George A. Plimpton purchased the
tablet from an archaeological dealer, Edgar J. Banks, in about 1922, and bequeathed it with the rest of his collection to Columbia University
in the mid 1930s. According to Banks, the tablet came from Senkereh, a
site in southern Iraq corresponding to the ancient city of Larsa.[3]
The tablet is believed to have been written about 1800 BCE, based in part on the style of handwriting used for its cuneiform script: Robson (2002)
writes that this handwriting "is typical of documents from southern
Iraq of 4000–3500 years ago." More specifically, based on formatting
similarities with other tablets from Larsa that have explicit dates
written on them, Plimpton 322 can be dated to the period 1822–1784 BCE.[4]Robson
points out that Plimpton 322 was written in the same format as other
administrative, rather than mathematical, documents of the period.[5]"
Alas, dear Apple, you are at least 4000 years too late in your design claim for the iPad2 when looking at the historical prior art of flat writing tablets with the same approximate aspect ratio of length and width.
In the previous LawPundit posting we did not discuss the Apple claim that the Samsung Galaxy Tab 10.1 infringed on the iPad2 because (using our English translation from the original German-language motion): "Tab 10.1 copies the prominent thin profile of the iPad2".
Alas, dear Apple, you are at least 2000 years too late in your design claim for "thin" writing tablets. You were preceded by the "wafer thin" Vindolanda wooden tablets, which are dated to the 1st and 2nd centuries AD.
"The Vindolanda tablets are "the oldest surviving handwritten documents in Britain".[1][2] Written on fragments of thin, post-card sized wooden leaf-tablets with carbon-based ink, the tablets date to the 1st and 2nd centuries AD (roughly contemporary with Hadrian's Wall). Although similar records on papyrus were known from elsewhere in the Roman Empire, wooden tablets with ink text had not been recovered until 1973, when archaeologist Robin Birley discovered these artefacts at the site of a Roman fort in Vindolanda, northern England.[1][3]"
Roman writing tablet from the Vindolanda Roman fort of Hadrian's Wall, in Northumberland (1st-2nd century AD). Tablet 343: Letter from Octavius to Candidus concerning supplies of wheat, hides and sinews. British Museum (London) | Author = Michel wal) | 2008. This file is licensed under the Creative Commons Attribution-Share Alike 3.0 Unported, 2.5 Generic, 2.0 Generic and 1.0 Generic license.
When we look at these 2000-year old tablets, we see that not too much has changed in the shape of the "outer" rectangular design for ""thin" tablet writing that Apple has in fact copied from our forebears and to which it is wrongfully and shamefully trying to claim exclusive rights.
One of the things that really irks any impartial observer of intellectual property developments is that there are courts in the USA and Germany known for their apparent partiality in IP cases, which leads to their being selected by petitioners in choice of venue situations in order to gain what appears to be an unfair advantage over opposing parties.
"Even though most of my blog posts relate to litigation in the United States, I'm actually a native and still a resident of Germany. The Düsseldorf district court has a reputation for being our equivalent of the Eastern District of Texas in terms of a strong tendency to favor the interests of right holders over those of alleged infringers. About half of all European (!) patent litigation takes place before that court." [emphasis added by LawPundit]
If courts are not impartial, or if they permit situations to arise where their impartiality is legitimately called into question by prevailing venue practices, then an impartial observer draws the conclusion that intellectual property law is a pea and shell game in which certain courts can be relied upon to decide disproportionately in favor of petitioners on intellectual property actions.
That has little do with justice in law and breeds disrespect for law and order, which is the foundation of modern civilization.
There may be those who think that we exaggerate these matters, but current events tell a different story. Many observers -- in our opinion rightly -- see the current world and legal situation as a "rigged" game favoring monopolists and the wealthy.
Take a look there at the allegedly unique iPad2 outer design features that Apple claims are infringed by the Samsung Galaxy Tab 10.1.
Here is what the Apple motion claims as the infringed outer features of the iPad2 (unofficial LawPundit translation into English from the online German-language document, allegedly a true copy of the original motion):
"The overall appearance of the two products shown above [LawPundit note: the reference is to the false and misleading side-by-side comparison] is virtually identical, because the Galaxy Tab 10.1 copies all of the distinctive elements of the features of the iPad2:
(i) a rectangular product with four uniformly rounded corners;
(ii) a flat, clear surface, which covers the front of the product;
(iii) the appearance of a metallic bezel [frame, side borders] around the flat, clear surface;
(iv) a display, which is centered on the clear surface;
(v) below the clear surface there are definite, neutrally kept limits [border lines?] to all sides of the display [LawPundit query: who can see these?]; and
(vi) when the product is turned on, color icons within the display.
In addition, the Tab 10.1 copies the prominent thin profile of the iPad2."
In fact, contrary to the above misleading representation, the following is true:
(i) the rectangles have markedly differing aspect ratios. The 10.1 takes its name from the fact that it is 10.1 inches in length and 6.9 inches in width, as compared to the Apple iPad2's shorter length of 9.5 inches and greater width of 7.3 inches. TWO DIFFERENT RECTANGLES. The rounded corners of the Galaxy Tab 10.1 are drawn out longer.
(ii) the surfaces are not identical as the Galaxy Tab 10.1 uses Corning Gorilla Glass. TWO DIFFERENT GLASS SURFACES.
(iii) the tops and bottoms of the Apple bezel [frame] are wider than the sides, whereas the Galaxy bezel is equally wide on all four sides and connects to a plastic chassis underside as compared to the metallic chassis of the iPad2, and as Engadget notes, for the Galaxy Tab 10.1: "the edges are surrounded by a matte silver finish." TWO DIFFERENT BEZEL DESIGNS.
(iv) the displays are not the same, as the iPad2 capacitative touchsceen is 1024 x 768 pixels and the Galaxy Tab 10.1 is 1280 x 800 pixels. TWO DIFFERENT GLASS SURFACES. The higher color saturation of the Samsung has been criticized (see Tested.com). TWO DIFFERENT COLOR DISPLAY SYSTEMS.
(v) I am not sure what this design feature means, so that a comparison here is not possible. Does this mean that the display has a thin anti-aliased line outlined on the edges? Surely this was listed in jest as an allegedly protectable feature. Is this related in any way to the light leakage on the display edges that iPad2 users have been complaining about?
"The following two sets of screenshots compare the primary home screens of the Galaxy Tab 10.1 (left pair) and iPad 2 (right pair) after each tablet has had its home screen wallpaper modified and a screen or two of apps installed. See if you can spot some interesting differences…
Galaxy Tab 10.1 (left pair) and iPad 2 (right pair) home screens (click thumbnails to enlarge)
A few noteworthy differences in the home screens and icons include: [emphasis added by LawPundit]
The iPad 2 holds 25 app or folder icons per screen, five of which are constant across all home screens since they’re located on the system tray.
The Galaxy Tab 10.1 holds 35 app icons per screen but doesn’t come with a folder icon option; however, home screen folders can be added via an Android app (discussed below).
The Galaxy Tab 10.1 maintains icon array placement consistency at the cost of adjusting row/column spacing a bit, when you rotate it between landscape and portrait orientations; this consistency makes it easy to keep track of where apps are located within the home screen array.
The iPad 2 changes from a 4×5 to a 5×4 array (not including the 1×5 tray) when you rotate the device from landscape to portrait orientation; this alters the location of apps and folders (other than what’s in the tray) on the home screen, other than the upper-left and lower-right corners, making it harder to locate specific apps when you rotate the screen between its two modes. It’s surprising that Apple would tolerate this level of UI inconsistency; however, it keeps horizontal/vertical icon spacing constant across the two orientations, so perhaps this is a case of style trumping substance.
Personally, I prefer the Galaxy Tab 10.1′s higher density of app icons to the iPad 2′s “airy” approach. It’s a more efficient use of home screen real estate, and it less[e]ns the need for scrolling among multiple screens to locate a desired app."
The Pew Research Center has some devastating statistics about the long-term impact of the Bush administration financial policies on minorities in America (here are their graphs):
[Note: We use the words "allegedly" and "apparently" below because it is impossible for us to check the original legal motion involved in this case in order to verify personally whether the images discussed were in fact falsely and misleadingly presented as shown in the online document at Scribd and Google+. Based on those online reproductions of the legal motion in question, that does, however, appear to be the case.]
What is involved here inter alia is a side-by-side image portrayal that Apple apparently presented to the German court from which it was seeking an injunction against Samsung, an image which allegedly shows a "fudged" photograph with an aspect ratio of 1.36 (length to width) for the Samsung Galaxy Tab 10.1 to make it look similarly box-like to the Apple iPad2 which has a low "Golden-Ratio-offending" aspect ratio of 1.30.
But in fact, the official Galaxy Tab 10.1 has an aspect ratio of 1.46 (length to width) -- a world of difference in appearance, look and feel! IN fact, the Galaxy Tab 10.1 takes its name from the fact that it is 10.1 inches in length and 6.9 inches in width, as compared to the Apple iPad2's shorter length of 9.5 inches and greater width of 7.3 inches. TWO DIFFERENT RECTANGLES. Do German courts understand that those two rectangles are not "virtually identical"?
Just imagine if every little judge in every little court in every Member nation of the European Union could issue injunctions enforceable throughout the European Union. Now THAT would be interesting. Talk about chaos.
The clear lack of the Düsseldorf court's jurisdiction to issue injunctions for the entire EU is surely the reason that the EU-wide injunction was quickly limited post-injunction by that same Düsseldorf court to Germany only, as the court now will hold an August 25 hearing to give Samsung a chance to defend itself, which up to now it has not been able to do because of the total outdatedness of inquisitorial, rather than adversarial, German civil law, where injunctions can be issued simply on the say-so of a claimant in front of an uninformed judge.
Such an uninformed and erring judge can cause economic harm running into many millions of dollars.
Can we expect that the German government will, as a consequence of this case, remove the uninformed judge involved, who apparently does not even know the bounds of his own court jurisdiction?
What is the law coming to?
National leaders of all nations, legislators and judges should start reading what people online are writing about this case in the Internet. They are laughing at the law.
LAUGHING.
Laughing at protected "community designs" of rectangles, especially if they are thin, and have rounded corners.
The organized law of nations can not operate this unjust way, folks. No way. Just look at recent TV news. What do you see? Riots. Looting. Disrespect for law and order. All respect for law and order is lost if nations do not operate sensibly and justly in making, interpreting, applying and enforcing their laws.
Corporations did not invent geometry or geometric forms and should not be able to monopolize any of them.
Where, I ask, are the voices of the erudite German law professors concerning these developments? Do we hear the sounds of silence?
Not only is the side-by-side presentation clearly false and misleading in the above document with respect to the Samsung Galaxy Tab 10.1 to be introduced into Europe (and for months available to Apple to review) but many of the other comparisons show funnily "angled" shots that reduce the disparity in aspect ratio. Such "angled comparisons" could have been instituted to intentionally minimize the size and shape difference between the two products and to make them appear more similar than they actually are, whereas in fact the two are easily distinguishable electronic devices.
European Union (EU) competition law and criminal law authorities should also examine, by the way, if Apple's registration of its alleged "Community design" in the European Union is a possible case of business and consumer fraud, since, as we have shown in our previous LawPundit posting, the iPad design is not significantly different than electronic tablets designed many years ago. Apple has clearly copied previous electronic tablets and tablet concepts.
The need for modernization of patent, design, copyright and trademark law is not theoretical. It is urgent!
When corporate enterprises use patent or design laws to try to claim monopolies on electronic devices of rectangular shape because their rectangles have rounded corners or are "thinner" than preceding prior art, the time has come to say "STOP".
Enough is enough.
Every buyer can easily distinguish these two products. The law has no business taking sides here. This is a case for capitalism, not the courts.
