LOS ANGELES, CA (Catholic Online) - Imitation and copying, Babcock insists "is continuously present in many parts of a free enterprise system and in some ways is a yardstick to the health of that system. I often see small, muscular-looking cars with lines similar to the BMW 300 series, but they have Swedish or Japanese nameplates on them," Babcock notes. "Matching a competitor under your own brand is a time-honored practice."

Lawsuits over patent violations, Babcock argues, "should aim to prevent is theft by copying, such as stealing the technology of a competitor's product, or creating such a conscious, copycat duplication that one product can be confused with another, thus letting the profits of an originator be taken by an imitator. Samsung did not do this."

Babcock points out that Samsung's attempts to mimic the Apple iPhone are miniscule. "Samsung's icon layout on its application screen looks similar to Apple's home screen, but beyond that, the jury's verdict in the Apple vs. Samsung case is a muddle, a confusion of design patents put in the same category as utility patents, and the verdict for infringing design looks as punitive as one for stealing technology."

Furthermore, utility patents are intended for a unique invention, which in essence is a monopoly that is granted for 20 years afterwards "after an examiner determines that no such inventions existed previously or can be found in what's known as prior art."

Design patents, more subjective are effective for about 14 years, and spring from an 1891 court case that found one silverware manufacturer had copied the pattern of another.

This is clearly an example of 19th century standards trying to be applied to the 21st, Babcock says. "If the 'ordinary observer' can detect 'substantial similarity' in one silverware pattern versus another, the original's design has been infringed, ruled the Supreme Court. And that's still the standard used in a design patent case involving two sophisticated, multi-layered electronic devices today."

Patents so far have played a far smaller role in computing and consumer electronics. For example, of the 6,242 patent examiners in the U.S. Patent Office, 99 of them are design examiners. The rest are utility patent examiners.

"In Smartphone design the evolving functional elements, such as the size of the touch screen, are closely tied into the overall design. Apple didn't invent the capacitive resistance touch screen ... But its core design patent on the iPhone covers a large, rectangular screen on a handheld device with rounded corners, much as you would now expect a touch screen to be implemented. There are other elements, but the screen-centric design figures heavily into the iPhone's and iPad's respective design patents."

In conclusion, Babcock suggests that Apple release the stranglehold it has on many common tech gadgets.

"Apple has used a dysfunctional U.S. patent system -- too many patents granted without enough understanding of the state of the art -- to prosecute this case."

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