Since our last update, Apple has succeeded in obtaining a trial date of July 30, 2012, in the Northern District of California (this relates to Apple's U.S. federal claim against Samsung).
Also, a Dutch court ordered an injunction against Samsung's Galaxy smartphones (but not the tablet) based on a software-related patent. Samsung stated it would modify the software in its phones to work around the patent.
Lastly, Florian Mueller at FOSS Patents has translated the official court statement from the Regional Court of Dusseldorf (Germany) which granted Apple a preliminary injunction on August 9, 2011. As we previously posted, the Regional Court of Dusseldorf scheduled a hearing for August 25, 2011. In summary, the injunction remains effective at least until a ruling scheduled for September 9, 2011.
Returning back to the design aspects at issue, Samsung has raised an interesting argument against Apple's asserted design patent. Samsung argues that "tablets" used in Stanley Kubrick's 2001: A Space Odyssey (1968) are prior art against Apple. Florian Mueller posted on this on August 23, 2011.
[Exemplary image from 2001: A Space Odyssey; Also see the corresponding YouTube clip]
Samsung argues the devices shown on the table above have "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 may be taking a bit of liberty here - this movie dates back to 1968, which means the devices are probably nothing more than a shell to look like a slim device, with CRT televisions below the table. On the other hand, the devices may have images projected thereon. Either way, it should be appreciated that the devices are not tablet-functional devices as we are accustomed to, but rather movie props.
However, while this distinction may be important when considering the teachings of a utility patent, Samsung's arguments are specifically directed to a design patent.
"The scope of the relevant prior art for purposes of evaluating obviousness under 35 U.S.C. 103(a) extends to all "analogous arts." While the determination of whether arts are analogous is basically the same for both design and utility inventions (see MPEP § 904.01(c) and § 2141.01(a)), In re Glavas, 230 F.2d 447, 450 109 USPQ 50, 52 (CCPA 1956) provides specific guidance for evaluating analogous arts in the design context, which should be used to supplement the general requirements for analogous art as follows:
The question in design cases is not whether the references sought to be combined are in analogous arts in the mechanical sense, but whether they are so related that the appearance of certain ornamental features in one would suggest the application of those features to the other.
Therefore, where the differences between the claimed design and the prior art are limited to the application of ornamentation to the surface of an article, any prior art reference which discloses substantially the same surface ornamentation would be considered analogous art. Where the differences are in the shape or form of the article, the nature of the articles involved must also be considered." [MPEP 1504.03.I.A]
Additionally, in determining whether a design is obvious (i.e. not patentable), "the proper standard is whether the design would have been obvious to a designer of ordinary skill with the claimed type of article. ... As a whole, a design must be compared with something in existence, and not something brought into existence by selecting and combining features from prior art references." [MPEP 1504.03]
Does a movie prop, which is arguably non-functional, constitute something in existence?
A design patent only protects the appearance of an article - not its structural or utilitarian features. Accordingly, it may be irrelevant that the tablets shown in 2001: A Space Odyssey are arguably non-functional. If the court agrees with Samsung that these tablets constitute a prior art design, then it will be interesting to see whether designs from other science fiction works appear in the litigation.