COLUMN-2011: A Samsung litigation odyssey: Alison Frankel

Wed Aug 24, 2011 6:37pm EDT

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-- Alison Frankel writes the On the Case blog for Thomson Reuters News & Insight (newsandinsight.com). The views expressed are her own. --

By Alison Frankel

NEW YORK Aug 24 (Reuters) - As all the world knows, Samsung (005930.KS) is engaged in a do-or-die international patent battle with Apple (AAPL.O). On Wednesday alone, Samsung saw a court in the Netherlands enjoin it from infringing an Apple smartphone patent; planned for an injunction hearing in Germany, where a court enjoined the Samsung Galaxy iPad, then lifted the preliminary injunction; and went before Judge Lucy Koh in San Jose federal court, where Apple is demanding yet another injunction barring Samsung devices.

But all that bet-the-company stuff doesn't mean there's no place for fun. In an Aug. 23 declaration that set the tech world snickering, Samsung's lawyers at Quinn Emanuel Urquhart & Sullivan asserted that Apple's extremely broad design patents on the iPad were anticipated by (among other pop culture reference points) Stanley Kubrick's 1969 movie "2001: A Space Odyssey." Quinn even helpfully provided a link to a YouTube clip of the crew of the Kubrick spaceship Discovery using thin rectangular devices that look curiously like iPads. (A similar "Star Trek" clip suggests Captain Picard also used an iPad before Apple invented it.)

The argument isn't quite as wacky as you might think. Just recently, lawyers for Yves Saint Laurent told Manhattan federal judge Victor Marrero that Christian Louboutin can't trademark red soles because Dorothy had red shoes in "The Wizard of Oz;" Judge Marrero cited Dorothy's "famous ruby slippers" on the first page of his opinion knocking out Louboutin's trademark. Trademarks have squishier standards than patents, but if it worked for Yves, maybe it'll work for Samsung as well.

While Judge Koh ponders the question of invalidity-by-science-fiction, I thought about how other patent defendants, present and future, might make use of the pop culture. Those flying cars now on the market for a cool $230,000? Sorry Terrafugia Transition. "Chitty Chitty Bang Bang" got there first. You can find all kinds of wristwatch televisions for sale (including models by Samsung). Wonder if they all disclosed Dick Tracy in applications to the Patent & Trademark Office. Inequitable conduct, anyone?

Creepy human-looking robots have experienced a recent population explosion, but C-3PO of "Star Wars" beat them by 30 years. Then again, C-3PO was himself anticipated by the (alas, unnamed) humanoid robot on the TV series "Lost in Space." Laugh all you want, but Lost in Space is a trove of prior art. Look out Martin Jetpack -- "Lost in Space" saw you coming 40 years ago. (And not only "Lost in Space": a jetpack scene appeared both in the 1965 James Bond film "Thunderball," and in 1949's "King of the Rocket Men.") Animal cloning? "Jurassic Park." Human gene patents? "Planet of the Apes." Even IBM's landmark chess-playing computer was dreamed up back in 1910, in a sci-fi short story by Ambrose Bierce.

I've managed to avoid the obvious, but every "Star Trek" buff knows where we're headed. That's right: the "Star Trek" communicator. It's a handheld device that flips open to permit Captain Kirk to talk with his ship and crew. Nokia liked the parallels between the "Star Trek" device and modern cellphones so much that it actually produced working prototypes based on Captain Kirk's communicator. But by Samsung's "2001: A Space Odyssey" standard, the entire cellphone industry was anticipated by Gene Roddenberry. Who knows how many of Nortel (NRTLQ.PK) and Motorola (MMI.N) patents for which Google (GOOG.O), Microsoft (MSFT.O), and Apple have recently decided to shell out billions are design patents that under Quinn Emanuel's Space Odyssey standard are invalid because of "Star Trek" prior art?

The mind boggles.

This blog post first appeared here: link.reuters.com/jyk43s

(Reporting by Alison Frankel; Editing by Eileen Daspin)

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