By Dennis D. McDonald

Before folks jump all over Apple on the Apple vs. Samsung design patent case, read some background on design patents. You might find it amusing.

Some personal history: many years ago I managed a research project for the US Copyright Office that looked at the costs and benefits of intellectual property “formalities” such as registration and copyright notice and how they were used by several industries including motion pictures and — of all things — textiles. We were looking at copyright industries, not patents, but there are some interesting parallels.

Turns out there was a thriving market in textile design litigation centered around the garment district in New York City where the buying, selling, and stealing of textile and clothing designs was a common occurrence. 

We’re talking about everything from dresses and shirts to awnings, curtains, and slipcovers. Decisions about copying and suing were pretty businesslike and centered around well established variables like closeness to original design, time to market, speed of the fashion cycle, and — very important — likeliness that a customer would confuse the copy with the original (cf likelihood a prospective customer might confuse an iPad with a Samsung Galaxy Tab 10.1).

Hovering over all were the likely cost of litigation, the time it would take to go to trial, and the likely outcome of a trial. In some cases victims of copying had to overlook a lot of outright theft just because by the time a case could actually go to court the fashion cycle would have gone on to another design. 

This situation favored the “big guys” who could afford the legal muscle and dollars to research and manage such entanglements and who could also manage the registration that might help prove intention to protect. The “little guys” in many cases were also the ones most likely to innovate but were also the ones most likely to copy. They were also more likely to complain about the cost of having to register each and every design with a government agency in order to be able to defend themselves legally.

Obviously Apple and Samsung are “big guns” in this current design patent altercation and can afford to throw $$ into this type of dispute. The irony of it all is Apple having to hang its claim on the vagueness of its original filing. But if you agree that designs are patentable (or protectable under Copyright or some other form of intellectual property protection) you’d have to be nuts not to allow Apple to go after Samsung in a situation where a lot of people are going to see a lot of similarities in the tablets. If you don’t think Samsung vendors aren’t taking advantage of the similarities, I’ve got a Bridge in Brooklyn I’d like to sell you, too.

Please note that I’m not defending design patents or copyrights. I decided long ago that the only people who win in such disputes are the attorneys and the big companies. Also, the idea that such restricted monopolies actually stimulate innovation and creativity is laughable, as we’ve seen in the realm of software patents. But currently we’re stuck with design patents and Apple is taking advantage of that reality.

I also expect that eventually Apple will be on the receiving end of such litigation, perhaps sooner than we think.

Copyright (c) 2012 by Dennis D. McDonald, Ph.D. You might also find this post of interest: Using a Social Network to Gang Up on Apple.

Dennis is a Washington DC area consultant specializing in collaborative project management and new technology adoption. His clients have included the US Department of Veterans Affairs, the US Environmental Protection Agency, the National Library of Medicine, and the World Bank Group. Contact Dennis via email at ddmcd@yahoo.com or by phone at 703-402-7382.

An earlier version of this article was published on Google+.