Own a tech business and hope to cash in on the broad anticipation of the release of the new iPhone 5 on September 12?  You should make your own copycat version.  Wait, while you’re at it, why not patent the knock offs’ design and sue Apple for patent infringement, laughing all the way to the courtroom?

Sound ridiculous?  This seems to be precisely the strategy of Gizmodo China, a Hong Kong-based company.  Enter Gizmodo China’s new phone, named GooPhone i5.   The GooPhone, with a 1.4GHz Tegra 3 quad-core processor and 1GB RAM, runs the Android 4.0 Ice Cream Sandwich operating system, but it is meant to copycat the iOS 6.  It also employs a 4-inch display and includes an 8MP camera on the rear.  The exterior is remarkably similar to the expected exterior of the iPhone 5.

To add insult to injury, Gizmodo China and its sister in the United States claim they have acquired a patent in China for the Goophone that would also include the iPhone 5 within its reaches.  And they have asserted that they are not reluctant to defend the patent.  Gizmodo’s legal argument is that its phone came out first and therefore the design, although distinctively Apple and nearly identical to the previous iterations of the iPhone, is theirs.

In the past, some have levied criticism at or at least questioned the severity of Apple’s secrecy regarding the release of its new products.  Now, however, given the targeted nature and quality of the copy, it seems that even more secrecy would have been prudent.  Although the precise final specs of the iPhone 5 remain a subject of speculation, most of the details and parts of the new iPhone have been leaked, meaning that a company with the interest and the knowhow of making a knock-off could do so.

This is neither the first nor undoubtedly the last patent suit that Apple will face.  Indeed, just in late August of 2012 Apple was awarded $1billion by a jury after a litigation battle with Samsung.  Still, this is a much more serious case if indeed Gizmodo China has succeeded in acquiring patents for the Goophone.  If so, then Apple may well be barred from marketing its newest groundbreaking product to the major Chinese market.  Much hangs in the upcoming litigation balance.

Of course, another possibility is that the iPhone 5 will look nothing like the Goophone, meaning that Gizmodo will have succeeded in producing little more than an outmoded and antiquated copy.  Even if it is the same, the Goophone will likely have nowhere near the same performance, nor will it offer the same experience to a user, as it runs Android rather than the software that was built for the system.

Still, excepting another minor Apple miracle, it seems that Apple may have a very serious problem on its hands that may become a trend throughout the industry.  Many copycat companies may take the recent patent troll movement to the next level, laughing in the face of the inventors.  This trend could have a major impact on technological progress and American business.  Clearly, this is no laughing matter.


Tim Van Hal

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2 Responses to iPhone and Goophone: Copy or Coincidence?

  1. Brad Edmondson says:

    As a policy matter, I think we should draw a distinction between hardware component patents (which may actually require protection from the patent system in order to be worth developing and producing) from software patents and usability patents, which are developments that are almost always worth pursuing whether they are afforded patent protection or not.

    And while the protectability issue presents a question separate from the debate over international IP theft allowing a competitor to be first-to-market in its home jurisdiction, invalidating software patents could at least help to narrow the scope of the international issue.

  2. Jeffrey W. Sheehan says:

    The kind of absurd result possible here is important for raising questions about the fundamental balance of IP law. Coming on the heels of Apple v. Samsung, it’s worth considering what actions by an “innovator” justify the restrictions on competition that come from patent recognition. It is not clear to me that Apple deserves protection for rounded corners any more than Gizmodo deserves protection for being first-to-market with their device. Does anyone really believe that Apple would stop innovating if others are allowed to chase behind them trying to copy the functionality of their devices? Is roundedness-of-corners something that we should permit a company to claim as its intellectual property? How “groundbreaking” can the product be if the features that define it can be duplicated and patented by a competitor before the original makes it to market?