Last Friday, we filed a brief in the Samsung v. Apple case. The issue we addressed was the proper damages rule for [define term=”design patent”] infringement. The Federal CircuitSee CAFC held that Apple was entitled to all of Samsung’s profits for several smartphone models that were found to use some ornamental designs of Apple’s.
The rule itself is ridiculous; there are so many inventions used in a smartphone, there’s no way to justify (from a policy perspective) awarding all the profits of the phone based on, say, the shape of the outer case. We argued that this expansion of design patents goes beyond Congress’ power to issue patents. We also pointed out that there’s another statute, the Vessel Hull Design Protection Act, that uses similar terminology to the design patentAs distinct from a utility patent. A design patent protects only the ornamental design or appearance of an article of manufacture, but not its structural or functional features. An ‘article of manufacture’ is a broad term which may extend even to computer icons. Like utility patents, design patents must be nonobvious but this standard is harder to apply to designs. statute, and it’s clear in that context that the Federal CircuitSee CAFC misinterpreted the law.
We’ll see in the coming weeks if the Supreme Court agrees that the case is important enough to take.