Sorry perhaps I wasn't clear. To get a patent (in NZ anyway) the invention you are trying to patent has to be new, and have an inventive step i.e. it can't be obvious. Obviousness means it has to be something which would not have immediately occurred to a person who is knowledgeable about the subject matter.
I don't see how a button on a phone or say curved edges are therefore patentable as they would be obvious to anyone developing a phone therefore they can hardly be considered inventive. Its not a question of what a consumer perceives.
I'm pretty sure the rule is the same in the USA. But the people reviewing patents are not qualified to make the judgements that are required (not could they be expected to be given the variety of patents they must deal with and the time frames they must operate within), so everything tends to get registered.
Then it goes to court, where more people who are not qualified (jurors) are required to make a judgement. Jurors are people, we are essentially lazy and we have lives to live. We don't want to read dozens of pages of instructions on how we should go about making a decision, so we take shortcuts.
And then precedents are set (or actually then you go through the appeals process, and eventually precedents are set).
The reason I'm personally anti this judgement is because I think if this type of precedent stifles competition. It basically means that in order to compete in the smart phone industry you have to have a big enough war chest to be able to deal with patent litigation.
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