Jeff Roberts of paidContent.org writes, “What do Apple and its elegant iPads have in common with plastic, waterproof clogs that people love to hate? More than you might think. It turns out the two companies don’t just share a business strategy—Apple has also been copying Crocs’ legal strategy to keep competitors out of the market.”
The common bond Apple and Crocs share is that of relying heavily on industrial design, the look and feel of a product, to distinguish their products in the market. Both are also tenacious fighters in the legal arena when it comes to their design patents.
Recently, these patents have been front and center since Apple is accusing Samsung of “slavishly copying” its iPad design, and is demanding a court forbid the sale of Samsung’s Galaxy tablets. Apple suffered a setback in the dispute on Friday when Judge Lucy Koh refused to impose a temporary ban before the case goes to trial.
According to lawyer Christopher Carani, design patent lawsuits accelerated when a court changed the law to make them more powerful. Right after the change, the new rules allowed Crocs to win a 2010 appeal that allowed it to block other plastic shoes from being brought into the United States.
In the decision, the court basically stated that the test for patent infringement is if an experienced shopper would have trouble telling two items apart. In the past, imitators did an end run around patent challeges by changing a small feature in the item they copied. Crocs win in the courts emboldened other companies to use design patents to protect their products. Apple likely had the Crocs case in mind when they sued Samsung.
Carani, who chairs the American Bar Association’s Design Rights committee, says Apple began to make design patents a core part of its intellectual property strategy in 2008. He says this makes sense, “especially for a company that’s so industrial design heavy.”
The intellectual property advantage allows companies like Apple to create a legal barrier around their products, which critics claim amounts to an anti-competitive monopoly that hurts innovation. Defenders point to the Crocs case to show why patents are necessary. When Crocs had filed their complaint, the popularity of its shoes had created a flood of knock-off imitators flooding the market.
The patents protecting the plastic shoes, which no one seems to be neutral on, you either love them or hate them, will expire soon, as design patents last for only 14 years, compared to utility patents which have a 20 year life.
