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Design Patents Make It to Supreme Court
Thursday, October 20, 2016 12:28 pm | By Philip Thompson
Smart phone giants Samsung and Apple have been duking it out over intellectual property infringements since 2012.  The latest bout has roped in the Supreme Court, the first time in 100 years, to referee on design patents, to determine how much Samsung should pay for infringing three out of four of Apple’s design patents.
The design patents at issue are rectangular surfaces with curved edges, beveled sides and a grid of 16 icons for graphical display. None of these are used on products on the shelves today. Samsung was ordered to pay Apple $399 million for infringement on these patents, or the total profit it received from selling “the article of manufacture” with infringed designs.
Certainly, existing law, since 1952 does say the infringer shall be liable to the owner to the extent of his total profit” for the “article of manufacture” he/she sold with the infringed design/s.
But, what was the “article of manufacture”? Was it the entire phone, or the front of the phone and how should a jury determine that? This is the crux of this case. Ronald Mann, Columbia law professor reported that that Samsung attorney Kathleen Sullivan, Apple attorney Seth Waxman and Brian Fletcher “friend of the court” all agreed the lower court application of the “article of manufacture” to “object sold to consumer” was a bit of a stretch.
The lawyers and Justices went back and forth trading analogies to illustrate the difficult task any juror would have in applying a test to proportion the “article of manufacture” related to a design patent. Justice Kennedy asked Fletcher what type of expert testimony would differentiate the design of a Volkswagen Beetle from the rest of the car. While Samsung likened the current ruling to awarding the entire profits of car sales because of an infringed cup-holder design.
Of course, the phone designs are a bit more than a cup-holder right in a BMW right? But, are the three ornamental designs equivalent to the 250,000 utility patents and counting that make up today’s smartphones?

As intellectual property accounts for an increasing share of GDP, 38% in 2014. The final ruling may have large implications in IP-intensive industries, which seem split between the two. Tech disruptors such as eBay, Facebook, Google, Newegg along with Electronic Frontier Foundation and Public Knowledge have filed amicus briefs on the side of Samsung. While design-heavy firms such as Crocs, Tiffany, Adidas have filed on the side of Apple.  

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