The latest chapter in the Apple v. Samsung litigation, previously blogged about here, involves a determination by the Supreme Court of the United States that damages for design patent infringement can be calculated based on only a component of a product, rather than the entire product, if only that component is found to infringe. This is significant because Apple's $400M damages award was based on Samsung's total profit for sales of the infringing phones. However, Apple's design patent only covered certain features of Samsung's phones, and according to the language of the patent statute, as Samsung argued, it should only have to pay damages on the infringing components, not the entire product. 

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Thursday, 01 September 2016 00:16

Supreme Court Set to Hear Apple v. Samsung

The latest chapter in the Apple v. Samsung saga, previously blogged about here, is set to play out during oral arguments in front of the United States Supreme Court this fall. Samsung was found to infringe several of Apple's design patents related to specific design features of a smartphone, and not necessarily an entire phone. 35 U.S.C. § 289 authorizes courts to award the total profit from the article of manufacture bearing the design. Thus, the original damage award was based on Samsung's profits from the sales of the smartphone. The Supreme Court, however, will hear the question of whether, where a design patent is applied to only a component of a product, an award of infringer’s profits should be limited to those profits attributable to the component.

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In the unending saga of Samsung v. Apple, the Supreme Court has recently granted certiorari on a single question relating to damages in a case of design patent infringement, that is: where a design patent only covers a single component of an overall product, should a damages award be limited only to those profits attributed to that component?  For more on this case, head over to SCOTUSblog

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The latest chapter in the Apple v. Samsung saga, previously blogged about here, involves an amicus brief filed by several large technology firms in support of a rehearing on the amount of damages owed to Apple by Samsung. If granted, the Court of Appeals for the Federal Circuit will hear again arguments that those damages should be based on profits attributable to only the infringing portion of the Samsung device, rather than profits made on the entire device. If the Federal Circuit is persuaded, the decision could lower exposure for patent infringement across the industry. 

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The Geneva Act of the Hague Agreement concerning the International Registration of Industrial Designs (Hague Agreement) will go into effect for the United States next Wednesday, May 13, 2015.  Under the Geneva Act, it will be possible for U.S. applicants to file a single international design application either with the World Intellectual Property Organization (WIPO) or through the USPTO as an office of indirect filing to obtain protection in a number of countries that are party to the Hague Agreement.  In addition, applicants filing international design applications on or after May 13, 2015 will be able to designate the United States for design protection. U.S. design patents resulting from applications filed on or after May 13, 2015 will have a 15 year term from issuance.
Learn more at http://www.uspto.gov/patent/initiatives/hague-agreement-concerning-international-registration-industrial-designs

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Somewhat analogously to the nuances between the standards for trademark registration versus infringement, which are sometimes confused, the patentability standard for design patents is different from the design patent infringement test. In a recent Federal Circuit decision, High Point Design LLC et al. v. Buyers Direct, Inc., the Federal Circuit provided some helpful guidelines for evaluating patentability for design patents, particularly regarding “obviousness” (merely obvious ornamental designs are not patentable).

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Much has been written about the Apple v. Samsung patent dispute, with some claiming it goes too far and others claiming 'transparent' copying should justly be punished.  One thing that cannot be disputed is the value of a design patent.  As seen below, when consumers like the way something looks, others will migrate to that look, setting up a potentially strong case for design patent infringement, even as lawyers argue over the meaning of words in a related utility patent. Oh, and by the way, if you win, no need to settle for a reasonable royalty, as by statute, design patent infringement damages are set as profits.

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