Using Broad Design to Block Competition

You might think that a fight over smartphones has nothing in common with a spat over stilettos. But in fact, both are about a critical frontier in copying and competition: using design to gain control over function — and thereby gain control over markets.

The two disputes about copying that have dominated the business headlines over the last month are Apple v. Samsung, where Apple accused Samsung of copying the design of its iPhone and iPad; and Christian Louboutin v. Yves Saint Laurent, where Louboutin accused YSL of copying its signature red soles. While some measure of protection for new design features is justified, these cases illustrate the perils of letting our concern over copying override the need for competition.

Consider Apple’s attack on Samsung. Apple claims rights over not only familiar touchscreen features like tap-to-zoom and pinch-to-zoom. It also claims a monopoly in the rectangular shape of its electronic devices. In the courtroom, Apple sought to use its patents on the iPad and iPhone shapes to block Samsung’s growing arsenal of look-alike products.

Is the basic shape of the iPhone and iPad novel or distinctive? No. The rectangle is the shape of the television, the computer monitor, the magazine, the book. Indeed, it is the basic shape that has dominated content consumption since Moses presented the original tablets.

Consequently, there is good reason to question whether a design patent over such a basic shape should ever have been granted in the first place. Especially because Apple is not the first to design a rectangular phone – LG’s Prada used the same basic shape before the iPhone did.

A second problem has to do with the inevitable intertwining of design and function. While shape may seem like a simple matter of aesthetics, it actually has critical functional advantages for users. Can you imagine a smartphone or tablet in any other shape?  Sure, on NBC’s The Office Dunder Mifflin tried to roll out a triangular tablet. But that just proves the point. If Apple can control the rectangle, it can keep a lot of serious tablet and smartphone competition out.

Now, the jury didn’t find Samsung liable for violating Apple’s patent covering the rectangular shape of the iPad. But it did hold Samsung liable for violating several Apple patents covering the rectangular shape of the iPhone. And even with respect to the iPad rectangle patent, the court did not say that Apple’s design patent was invalid.

So Apple is free to go after other manufacturers for making tablets, and phones, that are similar in shape to Apple’s. And we emphasize the word similar. Because Samsung’s phones, while rectangular with similar rounded corners, were not identical to Apple’s. If future courts and juries follow this approach, a lot of other cell phone manufacturers might be in trouble: paging HTC’s lawyers… and Nokia’s… and other competitors.

The Christian Louboutin vs. Yves Saint Laurent battle is not about shape, but color. Louboutin argues that he – and only he – could use bright red soles on women’s shoes. The lower court that first heard the dispute denied this claim, reasoning that in fashion, color isn’t just aesthetic. It is also functional. After all, women don’t buy stilettos to keep their feet warm; they buy them for the looks. Color is an essential part of that look. To give a fashion house control over a color would limit competition in the market too much.

In the decision just handed down this past week, an appeals court in New York didn’t disagree that color could have functional attributes in the fashion context – attributes that might give a firm competitive advantage. But the court ultimately ruled for Yves Saint Laurent, stating that its competing shoe had a red sole AND a red upper, so did not violate Louboutin’s rights. Why? Because Louboutin’s trademark was in contrasting red soles. An all-red shoe, as a result, was just fine.

While the Apple and Louboutin cases are different in many ways, they both illustrate an important point. Intellectual property (IP) rights in product designs can have powerful effects on competition. These cases highlight the pitfalls of IP rights in product designs that are too broad.

And this leads to a bigger point about such rights. They can serve an important, even critical, function in our innovation-based economy. But they can also squelch competition and slow down innovation.

One way IP rights can harm both competition and innovation is by blocking the ability of competitors to refine and improve an existing design. Innovation is often glorified as being about the big “a-ha!” moment or breakthrough, but in many cases it is much more about tweaking a good idea and making it a great one.

The ability to copy is essential to this process. Giving firms broad control over shapes and colors stymies that process – especially if they are permitted to lock up a basic feature that crosses the uncertain boundary between pure design and function.

Apple vs. Samsung and Christian Louboutin vs. Yves Saint Laurent raise a set of tough questions about IP rights and innovation. Do we really think that without a patent on the iPhone’s shape, Apple wouldn’t innovate? And if women prefer their stilettos with red soles, is it right to give Christian Louboutin a monopoly that lasts forever (trademarks never expire) on that style of shoe? We know that doing so limits competition, which means consumers pay more… and what exactly do we gain in return?

Zimbabwe offers strong story of progress

Resource-rich Zimbabwe has great partnership potential with China, officials from both nations said at a promotion seminar at the China International Fair for Investment and Trade on Saturday in Xiamen.

The seminar, themed "Zimbabwe - your business partner in southern Africa", tells "a Zimbabwe story of trade and investment opportunities", said Walter Chidakwa, Zimbabwe's deputy minister of state enterprises and parastatals.

The Zimbabwean economy is recovering and has "registered impressive growth over the past three years", he said.

China is Africa's largest trade partner, as well as one of its most important investment sources and aid providers. Africa is emerging as an important base for China to expand international business relationships and one of the most attractive investment destinations for Chinese companies.

"Along with China's reform and opening-up over recent decades and the economic development of African nations, Sino-African mutual interest and demand is increasing, and the potential of trade cooperation is expanding," said Yao Jinglin, director of the investment promotion agency at China's Ministry of Commerce.

Zimbabwe has brought a number of projects seeking investment to the fair in Xiamen this year in a wide range of categories, such as auto manufacturing, air transportation, food processing, mining and infrastructure.

Many other countries, including the United States, India, Egypt, Poland and Russia, have also sent delegations to the fair in search of investment and partnership opportunities for projects.

Italy is promoting its Marche Region as a major investment destination.

"Italy doesn't need to promote. It just delivers," said Marinella Loddo, an Italian Trade Commission official in charge of industrial collaboration.

The Marche Region has "a dynamic production system", said Loddo, especially in a number of key sectors such as leather, shoes and accessories, fashion, furniture, machinery and shipbuilding.

The main investment opportunities in Italy lie in power generation - such as the solar sector - manufacturing and R&D in high-tech industries.

Will Jets give Tebow his shot at starting?

Where that ultimately leaves the New York Jets— and Mark Sanchez, who remains on the marquee as starting quarterback — is anyone's guess. Sanchez, who once was considered can't-miss, has watched his bright light flicker with diminished performances.

The question that begs to be asked: Is it only a matter of time before Tim Tebow — the NFL's most unique, scrutinized player — takes over as the Jets' starter?

Welcome to the football theater of the absurd, according to the Jets' critics.

Tebow's mere presence creates an intriguing dynamic and a compelling story line. The franchise has waited 44 often-painful years for a sequel to Broadway Joe Namath's guarantee, and deliverance, of a Super Bowl trophy.

The Jets, and head coach Rex Ryan, lost swagger during a tension-filled, non-playoff 2011 season, even as their MetLife Stadium cohabitants, the New York Giants, took home their second NFL championship in five years. The Jets envision that Tebow's unconventional playmaking ability, peerless work ethic, positive locker room influence and looming presence will help lift the franchise to its first AFC East Division title since 2002.

So can the Jets gamble on a quarterback whose best single-season completion percentage is an underwhelming 56.7% and whose career passer rating is a pedestrian 73.2?

That would be Sanchez, by the way. So is New York headed for an unavoidable quarterback controversy?

"You just can't make this stuff up," ESPN analyst Cris Carter said. "We know what is going to happen. It's going to end badly for Mark Sanchez."

The Jets maintain that Sanchez remains their unquestioned leader. "He is the cornerstone of our franchise," Jets general manager Mike Tannenbaum told USA TODAY Sports.

"We're just bringing in this other guy to enhance our offense," Tannebaum said, a reference to Tebow's deployment in new offensive coordinator Tony Sparano's Wildcat option package.

Except, this "other guy" is no other guy: Tebow generates some of the most polarizing opinions in pro football.

"Whatever my role is," Tebow told USA TODAY Sports, "I will make the most of it. I am going to be the best quarterback I can be in whatever they ask me to do. I think that sometimes people don't really grasp that. It's a great situation. I'm excited."

But ominous clouds gather overhead that could create turbulence for Sanchez and the Jets. Of course, the chief reasons that prompt a head coach to make a change at the critical position are injury and ineffectiveness, particularly if the fan base and the news media are restless. In 2011, 59% of NFL teams (19 of 32) started the same quarterback every game.

If the Jets have difficulty in pass-protection schemes, which they did in the preseason, Tebow's sturdy legs make him an appealing alternative. After the third preseason game, the Jets traded former starting right tackle Wayne Hunter to the St. Louis Rams for tackle Jason Smith, 2009's No. 2 overall pick who had also moved into a reserve role. For now, journeyman Austin Howard remains the starter at right tackle.

The Jets also have a difficult early-season schedule that includes road games with the Pittsburgh Steelers and two AFC East rivals, the Miami Dolphins and New England Patriots, plus home games against the San Francisco 49ers and the Houston Texans, two 2011 division champions.

Sanchez and Tebow, both 25, were friends before sharing the green and white.

"He's a great teammate," Sanchez said.

But how will the fourth-year signal-caller respond if he is yanked routinely in favor of Tebow in the red zone? Or if the Jets offense sputters, as it did in the preseason, and Ryan replaces him?

Preferring the element of surprise for the regular season, Ryan and Sparano declined to unveil the change-of-pace Wildcat package in the preseason. Sparano estimates using it about 100 snaps during the season (less than 10% of the team's offense).

"Just because we have a player in the building that has some history running the football ... doesn't necessarily mean that's exactly what we're going to do," he said.

The Jets failed to score a touchdown in their first three preseason games.

"The way I see it," Sanchez wryly told news reporters, "we are saving all the good stuff for the regular season."

Fans will know more when the curtain rises Sunday with the Jets' season opener at home against the Buffalo Bills. For now, Tebow, a 6-3, 245-pound tough-to-tackle left-hander, carries the proverbial clipboard — and the knack for being an instant game-changer.

"Tebow makes plays," said Jets cornerback Darrelle Revis, who watched the quarterback, then with the Denver Broncos, beat the Jets 17-13 with a 20-yard scoring run in the final minute of a 2011 game, capping a 95-yard drive. "I really don't know where his role is going to go, (but) he gets respect because that Wildcat is hard to stop. I'm sure he's going to do great things for us this year."

The basic dilemma of work and home was addressed

“Are we proud of Michelle Obama last night?” Nancy Pelosi called from a stage in the atrium of the Knight Theatre, in Charlotte. “Weren’t we proud of my women of the House?” The crowd was mostly made up of women, and they answered that they were. They had come for a town-hall meeting on women in politics, organized by EMILY’s List and co-sponsored by Marie Claire. The attendees seemed to come out of it happily united in their anger at Republicans (they would rather shut down the government than fund Planned Parenthood, Pelosi said, and added, “What more do you need to know?”) and with a sense that ambition was nothing to be ashamed of. Ellen Malcolm, the founder of EMILY’s List, which works to elect pro-choice Democratic women, was there, along with the group’s president, Stephanie Schriock, and Senator Patty Murray; they were joined onstage by about a dozen women who were in Congress or trying to be. Kathleen Sebelius, the Secretary of Health and Human Services, was at the event, too, wandering in an upper gallery dressed in a black party dress and wearing zebra-pattern shoes. Pelosi joked that the Secretary wasn’t listening.

 When Pelosi addressed the larger convention, a few hours later, she would say, “I stand before you as the first mother and grandmother to serve as Democratic leader.” (Soon after she spoke, all twelve Democratic women in the Senate came onstage in the convention hall.) The delegates applauded; but earlier at the town hall no one had pretended that that equation was simple. A good part of the discussion there was about what a career in politics meant for—and did to—women’s lives and those of their children. Michelle Obama’s speech, as proud as it may have made Pelosi and everyone there, had for long stretches been about her worries about what the Presidency would do to her daughters. She had also called herself the “Mom-in-Chief”—one of the few mannered phrases in an otherwise brilliant performance, and a confusing one. (Chiefly a mom? A chief among moms? Or does “in chief,” in this sense, just mean you are married to the President?)

Michelle Obama’s clarification, at the end, was somewhat lost in the applause: what she essentially concluded was not that there was no cost to her daughters, but that politics—and giving Sasha and Malia the example of the work that politics entailed—was important and valuable, too. She wasn’t exactly saying that the cost to them was worth it: the point was more that she had realized that politics could be good for her girls. She was both saying that her daughters were paramount and that the work of raising them would never be completely sundered from the work her husband did. Domesticity, politics, and work were intertwined. (I’ve written more about Michelle’s speech over at Daily Comment.)

The basic dilemma of work and home was addressed, if not resolved, at the town hall. Senator Kirsten Gillibrand talked about how being elected meant getting to set your own office’s hours; she acknowledged that most jobs don’t work that way. Val Demings, the police chief of Orlando, who is running for Congress—and had the most gripping presence of any of them—talked about how “it is not easy, but the mission is bigger.” Demings also said that women had to be able to ask for help—for child care, for example—and what it meant to discover that others were willing to be there to give it. Everyone spoke about how women running for office had to learn to ask for money. Ashley Judd, who was on the panel, and is also a Tennessee delegate, railed, in amusing terms, against Todd Akin.

The crowd knew a lot about Todd Akin, who is running for Senate in Missouri and has spoken about “legitimate rape” and sharply limiting abortion rights. His name got a reaction every time it was mentioned. Schriock, in her remarks in the atrium afterward, said that everyone needed to remember that Akin was “not an outlier here,” and that if his wing of the Republican Party prevailed, “we will know every day what it was like for our mothers and grandmothers,” in the years before Roe v. Wade was passed. The goal, she said, was to instead “talk about what it will be like for our granddaughters.”

Afterward, Tulsi Gabbard, who is running for Congress in Hawaii, said that when she started her primary campaign, against the mayor of Honolulu, no one knew who she was: “My opponent was already looking for a chief of staff.” She had come back from two deployments with the Hawaii National Guard, one in Iraq and one in Afghanistan. Gabbard is now thirty-one. She thought she could beat the mayor; and she did.

Just Call Me Roger won easily

Former champion jockey Nobel Abrego celebrated the 50th Anniversary of this country’s Independence in style by piloting  Just Call Me Roger to victory in the feature Bernard Dulal-Whiteway Independence Cup. The flambouyant Abrego gave the Glenn Mendez trained gelding a peach of a ride, to burst clear at the far turn and continue the gallop to the line. In the process, Just Call Me Roger became the first winner Abrego ever rode for the Mendez, while ensuring Mendez saddled his first winner in the prestigious event.


Just Call Me Roger proved too strong for Montejo and the well backed Mob The Warrior last Friday at Santa Rosa Park, Arima. It was the superb skill of Abrego that ensured that Paul Mouttet’s five-year-old stayed in front, to land the $120,000 first prize cheque. An elated Abrego had this to say:“Big races are for big jockeys. Glenn Mendez did a great job to get him here in such great shape. I was always travelling sweetly behind the early pace, set by Joezel and Montejo. However, going to the far turn the pace began to slacken and I sent my horse on. When he quickened up, none of his rivals could go with him. In the straight, I just kept him up to his work and he won easier than the winning margin suggests. His acceleration at the far turn was decisive and this was a great performance.”


He ended by saying he was happy to win the opening event on a day when T&T celebrated its Golden Jubilee. Just Call Me Roger also gave 50-year-old Mendez his first Independence Cup success, and the trainer was just as happy adding to his already bulging bag of successes at the centralised venue. Mendez stated: “This a very good horse, he has proven that. Over the past six weeks, we had a lot of problems with him and we were not happy. He has had his hoof problems and we even brought in bar-shoes for him. Today though, the turf surface was kind to him. Once he quickened at the far turn, that was it. It was a great performance, but credit must be given to Abrego for a superb ride” said Mendez.


It was the second victory in this event for owners Paul and Gervan Mouttet, whose Bruceontheloose won this event three years ago. On Friday, the Mouttets watched joyfully as his royal blue and light green silks were carried triumphantly to victory. Gervan intimated, “Glenn Mendez is the one who normally will speak about the performance of the horse, but winning this event is great. He has not been an easy horse to train but came good again today. Abrego rode him well and we hope he will stay sound and win many more races. But, winning this one on the 50th anniversary is something worth savouring.”

Bandits with meat cleavers terrorise eastern suburbs supermarkets

MEAT cleavers and kitchen knives have been used in a series of armed robberies across Melbourne’s east over the past two months.

Starting on Monday, June 18, bandits have hit supermarkets in Vermont South, Mt Waverley and Blackburn North.

Police today released an image of a woman they want to speak to in relation to the incidents, which they say started about  11.15pm at a Burwood Highway supermarket in Vermont South.

They believe two men, one brandishing a meat cleaver and the other a large kitchen knife, demanded money from store attendants before fleeing with cash in the vehicle driven by a third offender.

The first man was described as Caucasian-looking, 182cm and wearing a light-coloured hoodie, grey pants, black sports shoes, black facial covering mask.

The second man is described as Caucasian, 187cm and wearing a dark hoodie, dark pants, black sports shoes, white facial covering mask.

A second armed robbery took place at 9.25pm on Thursday, July 5, at a Mt Waverley supermarket, when two men entered the store with meat cleavers and fleeing with cash to a waiting vehicle.

The first man is described to be tall and thin with light blue eyes and blonde hair. He was wearing a mask over his face, a black hoodie, dark pants and carrying a meat cleaver.

The second man is described as being tall, thin and wearing black clothing with a mask over his face and carrying a meat cleaver.

The third robbery occurred on Sunday, July 29, about 6.40pm at a Blackburn North supermarket.

Police allege a woman driving three men parked a stolen Subaru sedan in the loading bay on the eastern side of the carpark, near Springfield Rd.

The three men entered the store carrying a knife and meat cleavers, approached staff at tills and demanded cash.

The men fled the store with cash in the vehicle, which had allegedly been stolen from Burwood on July 26. The car was later recovered by police at 4.50am on July 30 in Box Hill.

The first man is described as 190cm and wearing a green hoodie, navy blue trade men work pants and carrying a large kitchen knife.

The second man was wearing a dark hoodie, balaclava and carrying a meat cleaver, while the third was wearing all dark clothing, a balaclava and carrying a large knife.

The woman is described as Caucasian, aged in her early 20s with wavy brown hair.

Lindon man sets world triathlon record for charity

Like many Americans, James Lawrence's life was turned upside down in late 2008 when the housing market crashed.

The ensuing financial crisis and anemic economy crippled the mortgage business he and his wife had built since he moved to Utah 12 years ago.

"We ended up losing our mortgage business, and I thought, 'This is the best time to take a risk like this,'" the Lindon father of five said of starting another business — one that focuses on personal health and wellness. Three years before he lost his business, his wife gave him a gift that would eventually change his life — and the lives of thousands of others. It would also lead to him breaking two world records — one for the number of half Ironman distance triathlons (2010) and the other he achieved this past weekend for the number of full Ironman distance triathlons completed in a year.

But, he isn't just accumulating finishes so he can adorn his house with finisher's medals or see his name in record books. Lawrence, who is known as the Iron Cowboy because he runs in a cowboy hat so his family will always be able to pick him out of the crowd, is swimming 2.4 miles, biking 112 miles and running 26.2 miles to raise money for In Our Own Quiet Way (quietway.org) a non-profit that helps develop clean water for Kenyans.

His effort to shatter the world record for the most Ironman Triathlons in a year, which was 20, really began when his wife convinced him to jog with her.

"I started out just doing fun runs with my wife," he said. "And I guess I was just pathetic enough that she signed me up for a marathon without telling me. I started with the Salt Lake Marathon. That's where my endurance career started."

It was not an auspicious beginning.

The couple knew nothing about distance running, so they did a little Internet research and showed up at the start line in cheap running shoes and basketball shorts.

"We were thinking we were all that and a bag of chips," he laughed. "It was a real humbling experience…I actually hated it."

In fact, the couple went to an mixed martial arts event at the EnergySolutions Arena that night and his knees swelled so severely that he had to be carried out.

It wasn't until the physical pain subsided that he began to wonder what he did wrong and what might happen if he learned to train correctly. "After the initial pain was gone, that's when I started having the ego battle," he said. "The emotional wounds were still there. I thought, 'I can do better.' And that's when I really started to learn more."