Following the form

Apple’s attempt to get Samsung’s Galaxy Tab 10.1 tablet banned from sale could have far reaching impact on the tablet market, with the iPad manufacturer looking to claim ownership of what has become essentially a generic form factor. If Apple succeeds where Samsung is concerned, it might be tempted to go after other competitors.

The suit that has seen Samsung’s ten-inch tablet banned in Germany is focused on the physical appearance of the product, and at the core of the dispute sits a line drawing of an iPad that Apple used to secure a design registration for the format.

Unlike the suit that Apple has brought against Samsung over image display techniques, there is no software modification available to Samsung should it be found to have infringed Apple’s design registration. It might simply have to scrap the product, an outcome that could incur devastating costs. Nor can it rely on being able to make a settlement. After all, Apple has wealth on a par with the US Treasury. Can it really be trying to squeeze money out of its Korean competitor?

It seems unlikely. “This is a serious attempt to get products off the market,” says Colin Fowler, associate at IP specialist law firm Rouse.  “Most of the IP war in the mobile space so far has been in relation to patents. Designs have played almost no part at all. But if Apple gets its design registration upheld, then the other vendors are going to have to watch themselves very carefully.”

There’s not a great deal of scope for design innovation when it comes to a ten inch tablet—especially when you consider that elements of the design that have technical constraints, such as the screen, cannot be taken into account. Apple isn’t going after Motorola’s Xoom, for now, but is that product really that different from the Galaxy, or the iPad in appearance?

Of course, Samsung won’t give up without a scuffle and there may be justification for a degree of optimism for the Korean. For a product segment like tablets which have limited scope for design differentiation, says Fowler, very minor differences can be proof of differentiation. “If the vendor has made every effort to differentiate the product and the product is only similar [to another] in relation to things that can’t really be changed because of technical constraints, then the courts won’t establish infringement,” he says.

Furthermore, it is easier to secure a design registration than a technical patent, and design submissions are less rigorously assessed, Fowler says. So Samsung will look to attack the validity of Apple’s original registration. That registration would have required that the iPad design was completely new, meaning that there was nothing similar looking on the market at the time it was registered. There are other kinds of devices, Fowler points out, that have a comparable appearance, so expect a challenge to Apple’s original registration.

In the mobile device space litigation has hitherto been focused on technical patents and, if Apple is successful in protecting its physical design, competing vendors will have to carefully reassess their product plans. Might RIM be put off introducing a ten-inch version of its Playbook, for example? Will a nine-inch tablet segment emerge in response? Or will the court find that a tablet is a tablet is a tablet? Perhaps in part answer to that question, Samsung this week came out with a device it describes as “a new category of product”. The Galaxy Note has a 5.3” display, putting it somewhere between a smartphone and a tablet.

The next judgement from the German court is expected on September 9th, and the fall out could be substantial.

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