Samsung deploys Kubrick defense

24 Aug 2011

As you’re no doubt aware, Apple is suing Samsung in several countries over the design of its Galaxy Tab 10.1, which Apple claims is a rip-off of its patented iPad design. Apple has already won a preliminary injunction in Europe to block further Galaxy Tab sales until the patent dispute is resolved, and is seeking a similar injunction in the US

Samsung filed an opposition brief in the US earlier this week, and according to intellectual property analyst Florian Mueller, part of Samsung’s defense includes “Exhibit D”: a scene from Stanley Kubrick's 1968 film 2001: A Space Odyssey.

Specifically, this scene.

From the brief (via Mueller’s blog):

In a clip from that film lasting about one minute, two astronauts are eating and at the same time using personal tablet computers. […] 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.

Samsung is essentially arguing that the tablet-like devices in 2001 constitute “prior art”, which it hopes will nullify Apple’s claim that it thought up the iPad form factor before anyone else.

While it might seem a bit of a stretch, Mark Summerfield – a senior associate with Australian intellectual property law firm Watermark – tells the Sydney Morning Herald that Samsung may have a case, as the Apple patent targeted by the “Kubrick defense” (though maybe it should be called the Arthur C Clarke defense, but whatever) is a design patent that protects the form, as opposed to a utility patent, which covers a device’s function.

"Generally science fiction is not legitimate prior art to a utility patent, because it does not provide an 'enabling disclosure', i.e. it does not inform the public how to make the fictional apparatus," said Summerfield, who writes the patent blog

But he said there was no reason why science fiction could not be "invalidating prior art" to a registered design.

"For example, if I were to copy the Star Trek communicator as a novelty mobile phone, I would have no right to claim a monopoly in that design. I did not devise it myself (i.e. I am not the true designer/author)," said Summerfield.

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