The FOSS Patents blog has an interesting note on a patent issue being raised by Samsung in its fight with Apple over iPad. In particular, the fight is over design patents, which cover the expressive elements of design - the style, feel, visual look, decorative elements and so on.

In this case Samsung has introduced into evidence images from Stanley Kubrick's classic movie 2001: A Space Odyssey. In that movie, characters are seen using a tablet-like device as shown in the image I've copied at the bottom of this blog entry (image enlarged somewhat so you can see details).

According to Samsung, this constitutes prior art because it shows key elements of the design that Apple wishes to protect with its patent, in specific: "...an overall rectangular shape with a dominant display screen, narrow borders, a predominately flat front surface, a flat back surface (which is evident because the tablets are lying flat on the table's surface), and a thin form factor."

I confess I'm not familiar with how prior art works in design patents - are the rules different from prior art challenges to functional/process patents? Is a use in a purely fictional context sufficient to show that the design elements are not original and thus presumably not qualified for new patent protect? Will the court even accept Samsung's submission for consideration as an element of prior art? We'll certainly find out the latter soon and the others in due time.