-- 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 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:
(Reporting by Alison Frankel; Editing by Eileen Daspin)