iPad vs Galaxy: Should designs be protected?

Ethics @ Work: Intellectual property refers to the granting of a legal monopoly on the use of ideas.

By ASHER MEIR
August 12, 2011 05:22
2 minute read.
The Jerusalem Post

iPad 311. (photo credit: BLOOMBERG)

A recent court ruling draws attention to a relatively unfamiliar area of intellectual property: industrial-design rights. This week a European Community court issued a preliminary injunction against Samsung importing its Galaxy tablet computer into the area within the court’s jurisdiction because the design closely copies that of Apple’s iPad. The ruling has nothing to do with patent infringement but only with the actual appearance of the device.

Intellectual property refers to the granting of a legal monopoly on the use of ideas.

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It would seem like we should allow the free proliferation of great ideas since they cost nothing to use. But the problem is that without protection, people will be much less inclined to invest in creating great ideas. Inventors invest effort in new ways of doing things with the knowledge that they can make money selling the product or licensing the method; artists invest effort in creating books and symphonies in the knowledge that sale or performance is forbidden without their permission; merchants invest in cultivating a sterling reputation knowing that competitors are forbidden from copying their trademarks.

Naturally, great care is needed in legislating these rights. We don’t want to protect ideas that would have been created even without the protection; we don’t want to give all of the benefit of the idea to the creator and none to the public; certainly we don’t want to stifle innovation by using intellectual property as a way of preventing competitors from making innovative and new competing products using alternative technologies.

Note that a trade mark is a little different than patents and copyrights. The trade mark itself does not cost much to create and doesn’t confer any inherent benefit on the copier. It serves to identify the product and protect it against counterfeiters.

Design rights are somewhere in between.

To some extent, they serve like copyrights, preventing a competitor from making a knock-off that feeds off the reputation of the original. But they also serve to encourage manufacturers to invest in making aesthetic products.

It could be that either of these alone could not justify design protection. Products can be identified in many ways besides their design. Unlike inventions and creations, designs usually do not cost a fortune and they are easy to invent around.

But the combination of qualities makes design a good candidate for protection.

Apple puts more emphasis on design, compared with technological innovation – more than perhaps any other technology company. So it is natural that it should be jealous to protect its designs. But a lot of iPad design is pretty standard, so there is reason to doubt if this preliminary injunction will stand up in the court battle that is now shaping up.

ethics-at-work@besr.org

Asher Meir is research director at the Business Ethics Center of Jerusalem, an independent institute in the Jerusalem College of Technology (Machon Lev).


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