Since Apple’s $1.05 billion jury verdict and judgment against Samsung for patent and trade dress infringement, there has been much commentary on what it will mean for the future of technological development. Samsung says “we will appeal” and no doubt it will once Judge Koh resolves post-trial motions, motions for permanent injunctive relief and numerous related issues (see her scheduling order). Most of the comments I have read have been negative about the outcome, primarily from the vantage point of it potentially harming competition in the smartphone marketplace, as well as ultimately hurting innovation. These commentators hope for reversal on appeal. I am persuaded by the contrary view.
The major problem I have with the naysayers’ arguments is that they seem to ignore the core conduct that got Samsung in trouble – COPYING. According to published reports, Apple presented several documents from Samsung’s files revealing Samsung’s decision to copy the patented Apple products instead of fairly competing with them by sufficiently innovating “around” the patented designs. Coupled with charts showing visual evidence of how changes in the Samsung smart phones evolved to closely resemble the Apple iPhone, the jury was presented evidence of what Samsung’s head of mobile communications wrote in an internal document while discussing Samsung’s relatively poor mobile phone sales:
Let’s make something like the iPhone. . . . The iPhone has become the standard. That’s how things are already. . . . When you compare the 2007 version of the iPhone with our current Omnia, can you honestly say the Omnia is better? If you compare the UX with the iPhone, it’s a difference between Heaven and Earth.
Not only is evidence of copying likely to spell “death” to the perpetrator from even the most pedestrian patent trial jury, it is the quintessential conduct the patent laws are intended to prevent, as it categorically stifles innovation. In other words, if people can lawfully copy patented designs, then they are not encouraged to create anything new, useful and nonobvious; and the patent holder is cheated out of the benefit of her bargain with the government to innovate in exchange for a period of exclusivity. Thus, allowing such conduct to go unchecked would systematically erode the entire patent system and innovation itself.